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Second Seminar: What Happens After You Use Your Firearm In PA

Due to overwhelming demand, as the first seminar on January 7, 2017, from 10-11:30 sold out, we have added a second, identical, seminar from 12-1:30.

For those unaware of the seminar, Chief Counsel Joshua Prince and Attorney Adam Kraut of Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., in conjunction with former JAG E. Allen Chandler of Firearms Legal Protection and King Shooters Supply, will provide an hour and a half seminar on what happens after you use your firearm in Pennsylvania. For only $10, you will be provided information on the legal consequences of a violent encounter and how to avoid common mistakes that can cost you money, and even your freedom, if you should become involved in a self-defense situation.

All attendees must per-register, and if there is extensive demand, we may schedule another seminar later in the day. To register, simply visit King Shooter Supply’s website.

Brought to you by your PA Firearms Lawyer® and your PA Gun Attorney® and home of the Armor Piercing Arguments®.

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Social Security Administration Publishes Final Rule Relating to NICS Improvement Amendments Act of 2007

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It has been well reported that the Social Security Administration (“SSA”) had been passing along information of individuals that it deemed unable to handle their financial affairs to NICS for the purposes of preventing them from purchasing a firearm due to being “adjudicated as a mental defective.”

In May of this year, the SSA published a Notice of Proposed Rulemaking. It received over 91,000 comments relating to the proposed rule. Of those, 86,860 were identical letters submitted by various individuals of a single advocacy group, opposing the proposed rule.

On December 19, 2016, the SSA published a Final Rule on the Federal Register pertaining to its regulations. While the regulations take effect on January 18, 2017 compliance is not required until December 19, 2017.

Public Comments

There were a number of comments on various issues, which I will recap a few points quickly below before moving on to explain the final rule and its impact.

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Second Amendment and Equal Protection

A number of individuals commented that “these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits.”

SSA responds stating that “[t]he criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently.” Further, “[w]e do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits.”

With regard to the Second Amendment claim, the SSA cites to District of Columbia v. Heller, 554 U.S. 570 (2008) for the proposition that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and that “nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Heller at 626.

Unfortunately, the Heller decision gives no guidance as to what constitutes mentally ill. Is an individual who was diagnosed with OCD “mentally ill”? Where does one draw the line exactly?

Due Process

Individuals commented that the due process rights of the beneficiaries would be violated because the beneficiaries would not be able to appeal the decision prior to the inclusion of their information being reported to NICS, raised concerns about adequate notice being given to the beneficiary who might be reported and argued the costs of pursuing relief should an individual be reported to NICS would be onerous.

SSA responded stating that “[a]ffected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final…we will provide individuals with advance notice at the commencement of the adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final.”

SSA goes on to state that they “will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or her impairment(s) meets or medically equals the requirements of the mental disorders listings, but before we find that he or she requires a representative payee.”

Notice is extremely important and a lot of times never given to individuals. SSA incorporating both oral and written notice to an individual is pleasantly surprising, given a the litany of issues I see where an individual is never told that a finding may result in their Second Amendment rights being taken from them.

Lastly, regarding the cost of pursuing relief, SSA dismissed the concerns by stating they will not impose a fee in connection with a request for relief and that it believes the cost to obtain the evidence it would require for such a request for relief as “reasonable”.

Part of the criteria of the new rule is that the individual appealing the decision will provide the SSA medical evidence in the form of a statement of the individual’s current mental health status as well as their mental health during the preceding five years from the applicant’s primary mental health provider. Such evaluations are typically performed by a psychologist and cost anywhere between $1,500 to $2,000 on average.

Final Rule

In order for an individual to be reported to NICS, they have to meet the five (5) criteria spelled out in Section 421.110.

Adjudicated as a mental defective, in accordance with 18 U.S.C. 922(g)(4), as amended, means a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: Is a danger to himself or others; or lacks the mental capacity to contract or manage his own affairs.

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.

  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

These criteria will be applied to capability findings that are made in connection with initial claims on or after December 19, 2017 and capability findings that are made in connection with continuing disability reviews (including age-18 disability redeterminations under § 416.987) on or after December 19, 2017. The latter provision will only apply in instances with respect to capability findings in which SSA appoints a representative payee for an individual in connection with a continuing disability review.

If the individual does not meet all five of the aforementioned requirements, then they will not be reported to NICS.

The regulations provide that if SSA determines the person is “mental defective” they will provide both oral and written notice to the affected individual that:

(a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);

(b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and

(c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

If an individual is reported, they may request relief from SSA as to the determination. Per Section 421.150 an application for relief must be in writing and include the information required by § 421.151. It may also include any other supporting data that the SSA or the applicant deems appropriate. When an individual requests relief under this section, SSA will also obtain a criminal history report on the individual before deciding whether to grant the request for relief.

Section 421.151 requires the applicant provide:

  1. A current statement from the applicant’s primary mental health provider assessing the applicant’s current mental health status and mental health status for the 5 years preceding the date of the request for relief; and

    The statement must specifically address:
    (i) Whether the applicant has ever been a danger to himself or herself or others; and
    (ii) Whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

  2. Written statements and any other evidence regarding the applicant’s reputation.

    The statements must specifically:
    (i) Identify the person supplying the information;
    (ii) Provide the person’s current address and telephone number;
    (iii) Describe the person’s relationship with and frequency of contact with the applicant;
    (iv) Indicate whether the applicant has a reputation for violence in the community; and
    (v) Indicate whether the applicant would pose a danger to himself or herself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm or ammunition.

The applicant may obtain written statements from anyone who knows the applicant, including but not limited to clergy, law enforcement officials, employers, friends, and family members, as long as the person providing the statement has known the applicant for a sufficient period, has had recent and frequent contact with the beneficiary, and can attest to the beneficiary’s good reputation. At least one statement must be from an individual who is not related to the applicant by blood or marriage.

The burden is on the applicant to show that he/she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public interest. Assuming those criteria are met, the SSA may grant relief. Unfortunately, the regulation does not state that they shall grant relief.

SSA’s regulations provide that a decision maker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee will review the evidence and act on the request for relief. If the request is denied, the applicant will have 60 days to file a petition for review in a Federal District Court. If the application for relief is approved, SSA will provide the applicant with written notice as to the reason for their decision, inform them that they are no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing, possessing, receiving, shipping, or transporting firearms or ammunition based on the prohibition that we granted the applicant relief from, and inform the Attorney General of the decision in order to remove the applicant from the NICS database.

SSA has 365 days to act upon an application pursuant to NICS Improvement Amendments Act.

 

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Pennsylvania Announces the First Phase of Permit Applications for Grower/Processors and Dispensaries.

Yesterday, Secretary of Health, Dr. Karen Murphy of the Pennsylvania Department of Health (“DOH”) announced that applications for medical marijuana grower/processors and dispensaries will be available at the Pennsylvania DOH’s website, www.health.pa.gov, beginning January 17, 2017. Permit applications will be accepted from February 20, 2017 until March 20, 2017.

In less than a year, Pennsylvania’s Medical Marijuana Act (“MMA”) has gone from enactment to the first phase of implementation. Pursuant to chapter 6 of the MMA, Section 601 authorizes grower/processors and dispensaries as the only entities authorized to receive a permit and operate as a medical marijuana organizations and grow, process or dispenses medical marijuana.

Section 602(a) of the MMA generally requires all applications to include:

1. Verification of all principals, operators, financial backers or employees of a medical marijuana grower/processor or dispensary.
2. A description of responsibilities as a principal, operator, financial backer or employee.
3. Any release necessary to obtain information from governmental agencies, employers and other organizations.
4. A criminal history record check.
5. Details relating to a similar license, permit or other authorization obtained in another jurisdiction, including any suspensions, revocations or discipline in that jurisdiction.
6. A description of the business activities in which it intends to engage as a medical marijuana organization.
7. A statement that the applicant: (i) Is of good moral character; (ii) Possesses the ability to obtain in an expeditious manner the right to use sufficient land, buildings and other premises and equipment to properly carry on the activity described in the application and any proposed location for a facility; (iii) Is able to maintain effective security and control to prevent diversion, abuse and other illegal conduct relating to medical marijuana; and (iv) Is able to comply with all applicable Commonwealth laws and regulations relating to the activities in which it intends to engage under this act.
8. The name, residential address and title of each financial backer and principal of the applicant. Each individual, or lawful representative of a legal entity, shall submit an affidavit with the application setting forth: (i) Any position of management or ownership during the preceding 10 years of a controlling interest in any other business, located inside or outside this Commonwealth, manufacturing or distributing controlled substances; and (ii) Whether the person or business has been convicted of a criminal offense graded higher than a summary offense or has had a permit relating to medical marijuana suspended or revoked in any administrative or judicial proceeding, and
9. Any other information the department may require.

Section 607 of the MMA sets forth the following fees and requirements to obtain a permit.

For a grower/processor:  1) An initial nonrefundable application fee of $10,000 must be paid; 2) A permit fee of $200,000 is required at the time of application. (The fee shall be returned if the permit is not granted); and 3)  A grower/processor must have at least $2,000,000 in capital, $500,000 of which must be on deposit with a financial institution.

For a dispensary: 1) An initial nonrefundable application fee of $5,000 must be paid: 2  A permit fee of $30,000 for each location must be paid. (The fee shall be returned if the application is not granted); and 3) A dispensary must have at least $150,000 in capital, which must be on deposit with a financial institution.

In October and November, the DOH drafted and published general regulations as well as specific regulations for both grower/processors and dispensaries. The regulations can be found at 28 PA. Code CHS 1141, 1151, and 1161.

Pursuant to 28 PA. Code §1141.23, no more than 25 permits will be issued for grower/processors and only one grower/processor permit per applicant. Additionally, no more than 50 dispensary permits will be issued and no more than five dispensary permits to one person. A dispensary permit may be used at no more than three locations.

28 PA. Code §1141.28 states the DOH shall publish in the Pennsylvania Bulletin notice of the initial permit application availability and the timeframe which they will be accepted. Only the form of application provided on the DOH’s website may be used and it must be submitted electronically.

Secretary Murphy further announced that this was the first phase of the program and that initially up to 12 permits will be issued for grower/processors and up to 27 permits will be issued for dispensaries, across Pennsylvania’s six medical marijuana regions. Secretary Murphy stated that “the decision for which counties will be issued permits in this first phase was determined by using the department’s medical data, as well as comments from more than 5,000 patients and nearly 900 potential grower/processors and dispensary applicants.” For further information on how many permits will be issued per each region please read the blog at http://cannabisindustrylawgroup.com/index.php/2016/12/21/pa-department-of-health-outlines-phase-i-of-medical-marijuana-program/

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Workers’ Compensation and Insurance Medical Examinations

by Karl Voigt

Insurance medical examinations (IMEs) are a tool used by workers’ compensation carriers to control costs. Whether a claimant has been receiving benefits or is just attempting to obtain them, the carrier has a statutory right to send them for an examination with a doctor of its choice. These exams – if they turn out favorable to the insurer – can potentially end benefits or stop them before they even begin.

Section 314 of the Pennsylvania Workers’ Compensation Act allows an employer to request its employee to submit to a physical examination by a health-care provider at any time after an injury. The examiner is generally chosen and paid for by the employer. The doctor is also asked questions by the carrier regarding the necessity of medical treatment, the patient’s physical capacities, or whether a full recovery has been made. As a result, the doctor generates a report and, if it is used in litigation, the doctor will later testify by deposition against the injured worker.

Often examinations don’t take place at an actual doctor office; rather, they are at “IME farms”, companies that actually contract with insurance companies to perform dozens or even hundreds of IMEs a week. Then, these “farms” contract with doctors to perform the IMEs. You can only imagine that these doctors are selected by the “farms” because they give reliable answers that favor insurance companies. Rest assured that your attorney will be familiar with the reputation of the examining doctor. More importantly, judges are often very familiar with these doctors and their reputations. If a doctor performs far too many IMEs with curiously identical opinions, judges may be less inclined to find them credible. It is therefore sometimes actually a good thing for the injured worker if the carrier chooses to send him or her to a doctor who has a reputation as a “gun for hire”.

It’s always fun to cross-examine these IME doctors as to how many IMEs they perform a week and at what price, then how many times they testify by deposition as a result, and at what price. It’s not unusual at all to do the math and come up with more than half a million dollars a year just for doing exams for insurance companies.

The general rule is that carriers can get two IMEs a year.

Of course, if you fail to attend an IME, Section 314 goes so far as to allow the carrier to stop your benefits until you attend a rescheduled examination.

So, you’ve gotta show up at an office building and tell some doctor about the whole history of your injury – and before – and then be subject to yet another physical exam. There are of course general rules for attending an IME. First, you don’t have to bring any diagnostic studies or films despite what the notice might tell you. You are not required to be the insurance company’s servant. Let them do the work and get films if they want to review them. Second, you should be cooperative during the exam, but not volunteer too much information. Let the doctor ask you questions. If the doctor fails to ask vital questions, that can be used against him during cross-examination. Your attorney may want to discuss the physical portion of the examination more with you.

You should be reimbursed for your mileage if you drive to the examination.

Interestingly, Section 314(b) does give you the right to hire a doctor to attend the IME with you. Unfortunately, this is a cost that is not reimbursable to you by the carrier. It may be difficult to even find a doctor who would be willing to attend an IME as an observer.

When our clients attend an examination, they are given a brief form to complete after the exam, so we can begin to prepare for the doctor’s report. Naturally, when it becomes “your time”, we will be prepared and on your side.

 

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Commonwealth Court Finds Lower Merion Township’s Firearm Regulations UNLAWFUL

Today, in a case that I handled, the Commonwealth Court issued a decision in Firearm Owners Against Crime (FOAC), et al. v. Lower Merion Township, 1693 C.D. 2015, reversing the trial court and finding that FOAC was entitled to a preliminary injunction against Lower Merion Township’s unlawful firearm regulations.

The background to the case is that in 2011, Lower Merion Township passed an ordinance amending section 109-16 of its Code (Ordinance) to prohibit persons from “carry[ing] or discharg[ing] firearms of any kind in a park without a special permit, unless exempted.” Lower Merion Township, Pa., Code §109-16. The Ordinance imposes a maximum fine of $600.00 per violation and authorizes the police to remove violators from Township parks or recreation areas.

In 2014, FOAC  contacted the Township and alleged that the Ordinance violated section 6120 of the Pennsylvania Uniform Firearms Act (UFA) because it improperly restricted firearm possession in Township parks. Upon review, the Township determined that the Ordinance was consistent with the UFA because it only prohibited the unlawful possession of firearms in parks and, therefore, chose not to repeal or revise it. Shortly thereafter, FOAC and a resident of the Township filed suit in the Montgomery County Court of Common Pleas and sought a preliminary injunction that the court denied. The underlying appeal ensued.

Reaffirming the PA Supreme Court’s decision in Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996), the Commonwealth Court found that FOAC’s right to relief was clear. Specifically, the Commonwealth Court declared

Rather, the critical upshot is our recognition that Ortiz’s “crystal clear holding” prohibits this Court from endorsing the argument that a cognizable distinction exists between regulating lawful activity and unlawful activity.

Moreover, based on Commonwealth Court Judge Pelligrini’s prior footnote (known as fn. 9) in Dillon v. City of Erie, 3 A.3d 467 (Pa. Cmwlth. 2014) (en banc), the Township attempted to argue that it could regulate as a private property owner. In explicitly rejecting the Township’s argument, the Court held that

the UFA explicitly prohibits a township from regulating “in any manner” and contains no express exemptions authorizing a township to enact ordinances permitting firearm regulation on its property, i.e., parks, comparable to that contained in the Game Law…Therefore, the Township’s argument that Firearm Owners’ right to relief is not clear based on its authority to regulate its parks as a property owner pursuant to Wolfe is unpersuasive.

Furthermore, the Court found the Township’s arguments that immediate and irreparable harm would not result as absurd, given the statutory proscription on regulating firearms and ammunition. Likewise, the Court found that “refusing an injunction would sanction the Township’s continued statutory violations of the UFA and, therefore, be injurious to Firearm Owners and the public” and that “the last nonconstested status existed prior to the Township’s enactment of the Ordinance. Therefore, an injunction enjoining the Ordinance would restore the parties to their last uncontested status and preserve the status quo.”

For those interested, you can download copies of our Brief and Reply Brief, by clicking on the applicable prior text.

Please join me in thanking FOAC for remaining steadfast in its dedication to defending Article 1, Section 21 and 18 Pa.C.S. 6120. I would highly encourage anyone in a financial position to do so, to donate to FOAC so it can continue to support important litigation defending our Rights.

#BestHanukahPresentFromTheCommonwealthCourtEVER! #MerryChristmasSenatorLeach #SenatorLeachITookMyBestShotAndWON! (This is in relation to your comment that I should take my “best shot” at 1:27 mark – http://www.nbcphiladelphia.com/news/local/Gun-Rights-Supporters-Rally-in-Suburban-Philadelphia-296381701.html)

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Concerns on both sides when drafting a commercial lease for a medical marijuana business.

In the upcoming year, medical marijuana businesses will be applying for permits to conduct business in Pennsylvania as either a grower/processor or a dispensary. In my previous blog, I commented on how it may be significantly more costly to rent property for a medical marijuana business than a non-marijuana business as result of the risks landlords may face.

Because of the risks associated with leasing to medical marijuana business, it is in the best interests of both the landlord and potential medical marijuana tenants to tailor a commercial lease to address some of those risks.

From a landlord’s perspective, there are specific concerns which should be addressed in a commercial lease.

1. Use of the Premises. Pennsylvania will issue permits for both grower/processors and dispensaries. Any lease should designate what state lawful purpose the premises will be used for.

2. Indemnification. The business of growing, cultivating, and selling marijuana remains illegal under the federal Controlled Substance Act. A landlord should include in any commercial lease an indemnification clause requiring the tenant to defend and indemnify the landlord from any federal action against the tenant, including forfeiture.

3. Early termination. A landlord should seek to include an early termination provision in the lease which allows the landlord to terminate the lease should: 1) the tenant fail to comply with any state or local law; 2) the commencement of any action against the tenant; 3) entry of a judgment against the tenant; 4) seizure by any government authority, and 5) any event that cause the closure of the building.

4. Improvements. The MMA has specific requirements for any property housing medical marijuana businesses, including access and security requirements. Any potential lease should require the tenant to comply with all state and local regulations and ordinances, secure any all licenses, at the tenants own expenses, and require the tenant to remove, at its own expenses, any improvements and modifications made by tenant.

5. Utilities. Utility expenses for a medical marijuana business are likely to be very high, especially for a grower/processor. A landlord should require a tenant to reimburse landlord and/or pay directly if possible any all utilities that out of the ordinary and excessive.

6. Access. Under the MMA, there are very strict rules as to who may have access and enter into a medical marijuana business. The right of a landlord to enter the premises must be clearly outlined and comply with state law.

7. Environmental, debris and waste. Under the MMA, there are very strict procedures for storage and removal of marijuana waste which any lease will have to incorporate. Additional, any grower/processor will have to store, use, and dispose of materials which are subject to environmental regulation including pesticides and fertilizers. Any commercial lease will require compliance with all environmental laws and regulations.

From a tenant’s perspective, a tenant should address in a commercial lease the following.

1. Term. With the federal government’s position towards marijuana unclear and the state’s position on marijuana evolving, a tenant may not wish to lock into 5 – 10 year lease terms with multiple automatic renewals. Shorter 2- 3 year terms and less automatic renewal periods may be more practical.

2. Permits. Medical marijuana businesses will be granted permits from the state after application and compliance with all state regulations. Any commercial lease should require a landlord to reasonably cooperate with tenant in complying with all regulations in the application process and not to take any action which could negatively affect the tenants application for a permit, operation and renewal of the permit.

3. Occupancy and commencement. Any potential medical marijuana business will have to present an operating plan and a lease to obtain a permit from the state.  The problem is there is no guaranty that a permit will be granted by the state. A tent should look to include an out clause or contingency clause to allow the tenant to terminate the lease should tenant not be granted a permit. The tenant should also look to include a rent abatement provision pending approval of the tenant’s application for a permit.

4. Dispute resolution. Typically commercial leases will have a confession of judgment clauses and specify where the dispute will be heard and under what laws a dispute will be decided. A tenant will have to be careful and tailor any confession of judgment clause so it  is not triggered by a violation of federal law and/or violation of the CSA. Additionally, a tenant may want all disputes to be submitted to private arbitration and have Pennsylvania state law govern due to the federal illegal status of marijuana.

Both landlord and tenant will need to make sure there are medical marijuana related outs drafted into the commercial lease to protect from federal prosecution. Additionally, any lease should incorporate a waiver by both parties acknowledging that neither will use against the other marijuana’s illegal status under federal law as a claim or defense to any dispute arising under the lease.

When drafting a lease, both landlord and tenant will have to carefully navigate federal, state, and local statutes and ordinances.  The aforementioned are just some concerns which should be considered by both landlord and tenant in drafting a medical marijuana lease.

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The Devastating Impact of the Recent Missouri Supreme Court Decision Involving the Protection of Lawful Arms in Commerce

It went largely unnoticed, when the Missouri Supreme Court on April 5, 2016, unanimously reinstated a lawsuit, in reality brought by the Brady Campaign, that a dealer can be sued under a theory of negligent entrustment without the protection of the Protection in Lawful Commerce in Arms Act (PLCAA – 15 U.S.C. § 7901, et seq), by a mother, where she called the store several days prior and asked the store not to sell a gun to her daughter but where the store sold the firearm in compliance with state and federal law and the daughter used the firearm to kill her father.

While the facts are no doubt heart-wrenching, the decision by the Missouri Supreme Court will have FAR reaching implications – many of which, it likely never considered. But before I discuss those, let’s first understand the reason that this case was brought as a negligent entrustment matter.

Under Section 7903(5)(a)(ii), “an action brought against a seller for negligent entrustment or negligence per se” is specifically excluded from the protections of the PLCAA. Hence, the Brady Campaign has decided to exploit this exemption for its personal agenda. However, the issue in Missouri was that the state never recognized a negligent entrustment action and all other claims would be barred by the PLCCA. As a result, the trial court a dismissed the complaint both under the PLCAA and that Ms. Delana’s negligent entrustment was not a recognized claim in Missouri.

In finding that Missouri law does provide for negligent entrustment, the Court went on to define exactly what negligent entrustment was:

negligent entrustment occurs when the defendant “supplies” a chattel to another with actual or constructive knowledge [and the Court later included that knew or should’ve known was sufficient] that, “because of youth, inexperience or otherwise,” the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm.

Now, take a minute and think about that definition and its far reaching implications…

Under this definition, does a car salesman now have an obligation to research whether a buyer has a past history of DUI? If he/she doesn’t check the buyer’s criminal history, it would seem, at least in Missouri, that the salesman can now be held liable under negligent entrustment, under the language “knew or should’ve known,” if the buyer later goes out, gets drunk and causes harm while driving under the influence.

What about the bartender? Does a bartender have an obligation to review a customer’s past criminal history for any information tending to suggest that the individual gets inebriated and starts fights or drives under the influence? Again, it would seem that such may now be required, at least in Missouri.

What about a doctor? Does a doctor have an obligation to review a patient’s criminal history to see if there is inform to suggest that the patient uses prescription drugs in an unlawful manner?

In all of the above scenarios, I mentioned performing a criminal history check. In the decision by the Missouri Supreme Court, there is NO dispute that the dealer conducted the requisite background check and the purchaser was NOT prohibited. Thus, it would seem that even checking one’s criminal history is not sufficient and may require even more inquiry.

In those examples, would the salesman, bartender or doctor have an obligation to call family members in conducting their background research? What about neighbors? Where does it end?

Unfortunately, after the Missouri Supreme Court decision, the dealer settled the action for $2.2 million, instead of fighting the absurd claims made by Ms. Delana and the Brady Campaign.

If you or your company is ever sued in relation to the mere sale of a firearm, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., is prepared to zealously defend you, including pursuant to the PLCAA. We aren’t fearful of organizations like the Brady Campaign and will stand by your side in these trying times.

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