Medical Marijuana vs. Liquor Licence Feud Continues

The Federal Court has declined to throw out the case of an Ontario restaurant owner who wants one of his former patrons stripped of his right to smoke medical marijuana.

Ted Kindos, owner of Gator Ted’s Tap and Grill in Burlington, Ont., is seeking a declaration from the Federal Court that people with a permit to smoke medicinal marijuana cannot do so in a public place or any licensed establishment.

He also wants the court to order Health Canada not to renew the permit of his former patron, Steve Gibson, arguing Mr. Gibson has not been in compliance with its terms of use.

Federal government lawyers sought to dismiss the case, arguing there is no dispute that requires adjudication because Health Canada does not purport to authorize permit holders to smoke marijuana in violation of any applicable law or in an establishment subject to Ontario’s liquor licensing laws.

In his decision released Monday afternoon, Federal Court Prothonotary Kevin Aalto said Gator Ted’s is “caught in a conundrum” between Ottawa’s medical marijuana regulations and its obligations under the regulations of the Liquor License Act of Ontario.

The restaurant “ought to have its day in this court,” the decision said.

A prothonotary performs some of the same functions as a judge in the Federal Court.

Mr. Kindos is facing a human-rights complaint for asking Mr. Gibson not to light up outside his business. Mr. Gibson contends in his human rights complaint that he’s being discriminated against because he has a disability.

Mr. Kindos argues he could lose his liquor licence if he allows Mr. Gibson to smoke or hold the controlled substance in or out front of his restaurant.

Where an authorized permit holder uses marijuana is not governed by federal regulations but Ottawa is considering whether it should be.

Health Canada said it is looking at developing options that would “clarify and limit” where permit holders could smoke.

– Article from National Post.

Comments

9 Comments

  1. Mokkie on

    Common Nuisance Code
    If you look at common nuisance laws side by side with U.S. Constitution.
    Preamble
    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    After many years of abating nuisances, Bill Cameron, the former City Attorney of Kennewick, noted that nuisance abatement is a human problem. It is the people who create the nuisance that are the problem, not the nuisance itself. Local officials need to keep in mind that the persons creating a nuisance may have mental problems; many have little money. When the method of abatement is chosen, the circumstance of the person creating the nuisance should be taken into consideration. Humane treatment is a moral imperative. Other government agencies may be of assistance. Child protective services, adult protective services, and the local health district may be a valuable resource. People are all individuals and remedies must be tailored to the individual. Experience and judgment are the only guides. People can be stubborn. Sane, but stubborn people are often quite receptive to a citation. The reality of fines, jail and attorney fees are a wake up call. Complicated people seem better dealt with in Superior Court.

    Article IV
    Section 1.

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

    Most code enforcement programs are complaint driven. Complaints result in an inspection and a warning letter to the violator, followed by a notice of citation if action to correct the violation have not been taken by the property owner. This is followed by official abatement proceedings if the violator still has not take care of the problem within a specified period of time. As an alternative to abatement, some cities use neighborhood mediation centers and voluntary agreements. Except for situations of imminent or immediate danger, the enforcement of nuisance provisions is a policy issue dependent on the level of service a community can provide with available resources.

    Amendment I

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    Several communities have developed proactive code enforcement programs. Others only deal with nuisances when they become a serious health or safety problem. Many local governments simply do not have adequate funding to make code enforcement a priority. The courts have recognized that governments generally do not have sufficient resources to hire staff to seek out violations of all regulations. It is common practice for cities and counties to enforce zoning ordinances, animal control, and nuisance ordinances on a complaint-only basis. See Frame Factory v. Ecology, 21 Wn.App 50, 57 (1978).

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Enforcement Responsibility – Code Enforcement Officers
    The enforcement of nuisance codes is often neglected, because the task can be onerous. Having a single person or department responsible for the enforcement of nuisance regulations can be beneficial, as it allows a jurisdiction to address nuisance problems globally; promotes accountability; and helps end confusion by directing public contact to a single location, instead of being fragmented over several departments. Enforcement should be assigned to a diligent, motivated employee – someone who is good at working with problem people. The job should be given the priority that it deserves, and the code enforcement employee should have the support and resources necessary to do the job right.

    Ideally, this should be a building inspector or fire marshal and preferably someone that carries a badge and can issue citations. In some cities assigning a police officer to deal with nuisance complaints may be appropriate. While some police officers might consider it beneath their dignity to chase trashers, the social harm that can be caused by a nuisance is far greater than that caused by many criminals. In his 1997 Legal Notes article, Bill Cameron, former Kennewick City Attorney ironically noted that “We will go to practically any expense to arrest a kid because he stuck-up a 7-Eleven store and made off with 50 bucks, but we are unwilling to go after the trasher who has peeled a half million dollars off the value of his neighborhood.”

    The responsibility and specific procedures for handling complaints differ among jurisdictions. For example, Bremerton’s code enforcement program is carried out by the building department. In Port Angeles it is the public works department. In Lakewood it is the department of community development. In Ellensburg it is the police department.

    Amendment VII

    In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

    Discussion on Right of Entry
    Consensual searches are not unreasonable and do not require a warrant. However, it is now advised that a warrant be obtained to enter property when permission is not obtained. In a Ninth Circuit Court case involving the City of Santa Ana, Connor v. Santa Ana, 897 F.2d 1487 (9th Circuit 1990), the court held that a warrant was required prior to entering property to inspect for a nuisance violation. This was based on the fourth amendment of the U.S. Constitution due process clause.

    Amendment VIII

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

    City of Pasco v. Shaw, 161 Wn. 2d 450 (9/13/2007) [Licensing of rental units/compliance with codes] To address a problem with the poor conditions of some rental units within the city, the city council passed an ordinance requiring landlords, to be licensed by the city, have inspections made of their rental units and furnish the city with certificates of inspectors certify that their units met applicable building codes. A challenge was brought, arguing that the required inspections constituted improper searches and that the inspection ordinance was too vague to be enforceable. On appeal, the court disagreed.

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

    General Definition
    In very general terms a nuisance is something that annoys — a wearing on the nerves by a persistent unpleasantness. It can evoke anger and interfere with comfort and peace of mind. In a regulatory environment the term nuisance embraces anything that results in an invasion of one’s legal rights. A nuisance involves an unreasonable or unlawful use of property which results in material annoyance, inconvenience, discomfort, or damage to another person or to the public. The unlawful use may involve doing something (example: piling garbage on residential property) or failing to do something (example: cutting or removing noxious weeds from residential property).

    Nuisances are sometimes called nuisances because they are remedied by abatement. Common nuisances include the accumulation of junk, animals, noise, dangerous buildings, sewage and unsanitary conditions, and encroachments on public right-of-way which interfere with pedestrian passage. The words abate and abatement are the legal terms used to describe the process for putting an end to, or terminating the nuisance.

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    RCW 7.48.120 Nuisance defined. Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. Note to reader –RCW 7.48.120 has not been amended since 1881.
    RCW. 9.66.010 Public Nuisance. A public nuisance is a crime against the order and economy of the state. Every place (1) Wherein any fighting between people or animals or birds shall be conducted; or, (2) Wherein any intoxicating liquors are kept for unlawful use, sale or distribution; or, (3) Where vagrants resort; and Every act unlawfully done and every omission to perform a duty, which act or omission (1) Shall annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons; or, (2) Shall offend public decency; or, (3) Shall unlawfully interfere with, befoul, obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway, or municipal transit vehicle or station; or, (4) Shall in any way render a considerable number of persons insecure in life or the use of property; Shall be a public nuisance. [1994 c 45 § 3; 1971 ex.s. c 280 § 22; 1909 c 249 § 248; 1895 c 14 § 1; Code 1881 §1246; RRS § 2500.]

    Signers
    Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States of America the twelfth.

    In witness whereof We have hereunto subscribed our Names,

    G. Washington-Presidt. and deputy from Virginia

    New Hampshire: John Langdon, Nicholas Gilman

    Massachusetts: Nathaniel Gorham, Rufus King

    Connecticut: Wm: Saml. Johnson, Roger Sherman

    New York: Alexander Hamilton

    New Jersey: Wil: Livingston, David Brearly, Wm. Paterson, Jona: Dayton

    Pennsylvania: B. Franklin, Thomas Mifflin, Robt. Morris, Geo. Clymer, Thos. FitzSimons, Jared Ingersoll, James Wilson, Gouv Morris

    Delaware: Geo: Read, Gunning Bedford jun, John Dickinson, Richard Bassett, Jaco: Broom

    Maryland: James McHenry, Dan of St Thos. Jenifer, Danl Carroll

    Virginia: John Blair–, James Madison Jr.

    North Carolina: Wm. Blount, Richd. Dobbs Spaight, Hu Williamson

    South Carolina: J. Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler

    Georgia: William Few, Abr Baldwin

    The signers of the constituion believed in citizens rights to life liberty and the pursuit of happines.
    When ever the law enforcement, city government, state government officals go after citizens rights to medicine. It is not the citizens that are a common nuisance. It is the police, DEA and the state and local law enforcement and city government are the common nuisance

  2. Kada on

    If he was taking medication in pill form i bet there would have been no problem. WTF is wrong with people?

  3. Anonymous on

    IF YOU WANT TO TALK BORDERS VIOLATED, AND ILLEGALS,
    LET’S TALK ABOUT THIS FROM 1492— IT’S ONLY 500 YEARS AGO!
    “EURO-AMERICANS” AND EUROPEANS HAVE SAID THAT IT’S ALRIGHT
    FOR JEWS TO TAKE BACK LAND THAT THEY LOST 2,000 YEARS AGO!
    THEN THEY SHOULDN’T HAVE A PROBLEM WITH LAND THAT WAS WRONGFULLY
    TAKEN FROM US JUST 150 YEARS AGO
    AND THE REST THAT WAS STOLEN JUST 500 YEARS AGO.

    YOU CAN’T HAVE RULES AND LOGIC
    THAT ONLY WORK FOR WHITE INTERESTS
    AND THEN HAVE THOSE SAME RULES AND LOGIC
    NOT WORK FOR NON-WHITES INTERESTS.
    THAT’S CALLED
    WHITE SUPREMACY—RACISM!
    So, Don’t Call Us Illegals, When All Europeans Are The Ones Who Are Illegally Occupying Our Continent! Read Your Own History of Criminal Actions Against The Indigenous People of This Continent!

    European colonial squatters have crossed the line when they think that they can continue to tell our people where they can go and where they cannot go on this continent. This is collectively all one land, our continent, one nation of Nican Tlaca (Indigenous People).

    We are the only true owners of this continent. We First Nation People, “Native Americans”, Mexicans, and “Central Americans” are all one people, one Nican Tlaca (Indigenous People) of this continent. Your artificial divisions of our people are invalid. Your borders, religions, languages, identities, and other illegal divisions of our people are irrelevant——you can’t erase us totally, even though you have killed 95% of our population (70-100 million of our people have been killed over the last 500 years).

    It’s time for European descent people worldwide to end their parasitic colonialism that has robbed non-white people of their lands, and whole continents! It’s time to allow colonized people to live free from Europeans controlling their lives and their wealth, stealing their wealth while keeping them poor and oppressed. It’s time for a permanent Abolition of Colonialism. It’s time for an end to all colonial occupation. It’s time for moral, ethical, and honorable people of European descent to become like John Brown, the Abolitionist, the man who lead the fight against slavery. More on John Brown, click here

    Truth and justice do not just come up one day suddenly with the sun; they have to be demanded, they have to be struggled for, they have to be worked on, defined, measured, and installed equally into the reality of all human beings, regardless of race, gender, color, creed, or other artificial human differences.

  4. Anonymous on

    The only reason the owner is going this route is because other customers complained to the Liq. Lic board that the owner was allowing pot to be smoked at his restaurant, they indicated that they would pull his lic.

    I’m all for one’s rights but all he did was ask the guy to go smoke away from the front door so people, families etc would not smell it.

    This has cost this owner some big bucks $30K and on going. What happened to peace and love. No one needs to loose their business, money etc.

    This is really an abuse of one’s right to smoke!!!!

  5. Anonymous on

    Because he is a GIANT one and in Canada GIANT dicks are allowed to spend as much on court costs as they like. It makes the courts look as useful as they are busy.

    Why isn’t he seeking a precedent where restaurant owners are allowed to act like they actually own their restaurant (which we might as well admit belongs to the government, which reserves the right to interpret the law how it sees fit – each time), and say “you can serve who you want, ban who you want. At this one place. Because you own it.”

    OH, WAIT, THERE IS SUCH A LAW ALREADY.

    There is a law in Canada called the Protection of Property Act. Everyone who has worked as a security guard (like myself) knows this and has likely served one. It doesn’t require anything to be written. All you have to do is YELL “PPA!!” AT SOMEONE AND THAT WOULD BE ENOUGH to legally bar them from your property, already under punishment of the law.

    The person citing PPA doesn’t have to write down or sign anything, the person being served PPA doesn’t have to, any private citizen can do it on their own property, and it was all he had to do. This Ted Kindos guy is just some alcoholic on a pogrom of self-pity and deep loathing for those of the healthy-liver persuasion.

  6. Anonymous on

    I think that aslong as it’s not inside the business itself it should not be a big problem. This owner needs to get his thumb out of his ass and just let the guy live his life, why try and get his medication taken away from him all together??? Besides i don’t think he will be returning to gator ted’s anytime soon so why does the owner have to be a dick about it, let the guy live his life….

  7. Anonymous on

    Tinctures made with Cannabis could solve the where to use problem. Tinctures are fast and effective, and nobody can complain about the smell.