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TO: Honorable Mayor and Members of the City Council
ATTENTION: Jeffrey L. Stewart, City Manager
FROM: Travis Sais, Assistant to the City Manager
SUBJECT: Consideration and possible action to review and confirm that an “Affirmation of Non-Ownership” letter submitted by Dynasty Alliance Grow, Inc., meets the conditions of approval for its 2022 Cannabis Business Permit (CBP) renewal.
DATE: February 14, 2022
EXECUTIVE SUMMARY
On December 9, 2021, the City Council considered annual Cannabis Business Permit (CBP) renewals for current cannabis business permittees in the City of Bellflower. As a condition of Dynasty Alliance Grow, Inc.’s Cultivation CBP renewal, the City Council determined (among other things) that Mr. Yoan Leon will need to be Live -Scanned and vetted as “Ownership” (as defined in the Cannabis Regulations). In response to this condition of renewal, Berenice Cristerna of Dynasty Alliance Group, Inc., submitted a notarized “Affirmation of Non-Ownership” letter (“letter”) from Mr. Yoan Leon Vargas, dated January 31, 2022, indicating that Mr. Yoan Leon Vargas has no equity interest in the company and that he has no right or intention to participate in the direction, control, or management of Dynasty Alliance Grow, Inc.
It is staff’s understanding that Dynasty Alliance Grow, Inc. submitted the notarized letter to satisfy the condition of renewal pertaining to Mr. Yoan Leon Vargas needing to be Live-Scanned and vetted as “Ownership” (as defined in the Cannabis Regulations). The City Manager and the City Attorney reviewed the letter and are satisfied that Mr.
Vargas’s assurances in the letter confirms that he does not meet the definition of “ownership,” under the Cannabis Regulations. The City Attorney sent Dynasty Alliance Grow, Inc. a letter dated February 10, 2022, regarding the matter including notice that the City Council would consider the matter on February 14, 2022. A copy of that letter is included.
RECOMMENDATION TO CITY COUNCIL
1) Confirm that the “Affirmation of Non-Ownership” letter submitted by Dynasty Alliance Grow, Inc., meets the conditions of approval for its 2022 CBP renewal; or
2) Alternatively, discuss and take other action related to this item.
FISCAL IMPACT
No fiscal impact with respect to this action.
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Staff Report – Cannabis Business Permit Renewal – Dynasty Alliance Grow, Inc.
February 14, 2022
DISCUSSION
On December 9, 2021, the City Council considered annual Cannabis Business Permit (CBP) renewals for current cannabis business permittees in the City of Bellflower.
Following the discussion on the renewal of Dynasty Alliance Grow, Inc.’s Cultivation CBP, the City Council granted Dynasty Alliance Grow, Inc. renewal of the CBP for Cultivation use at 8832 Ramona Street in the City of Bellflower, subject to the following conditions:
1. Mr. Yoan Leon will need to be Live-Scanned and vetted as “Ownership” (as defined in the Cannabis Regulations);
2. Proof of a Valid State Cannabis License for Dynasty Alliance Grow, Inc. will need to be provided to the City; and
3. Provide a certification, in a form approved by the City Attorney, signed under penalty of perjury in accordance with the laws of the state of California, confirming that there is no change in ownership between an originally issued CBP and a renewed CBP, unless approved by the City Council through a Modification application in accordance with the Cannabis Regulat ions.
During the discussion of the CBP renewal for Dynasty Alliance Grow, Inc, the City Council determined that Mr. Yoan Leon will need to be Live-Scanned and vetted as “Ownership” (as defined in the Cannabis Regulations ), due to his involvement in the permittee (Condition No. 1).
On January 5, 2022, the City received a document entitled “Renunciation of Dynasty Alliance Grow, Inc.” dated January 4, 2021 [sic]. It was signed by Mr. Yoan Leon Vargas and notarized. On January 10th, the City Attorney reviewed the document and advised that it did not meet the requirements of Dynasty’s CBP. Among other things, it was not signed under penalty of perjury. A copy of that document is included for reference.
Thereafter, Dynasty Alliance Group, Inc., submitted a new notarized “Affirmation of Non-Ownership” letter (“letter”) from Mr. Yoan Leon Vargas, dated January 31, 2022 (but signed January 24th), stating that Mr. Yoan Leon Vargas has no equity interest in the company and that he has no right or intention to pa rticipate in the direction, control, or management of Dynasty Alliance Grow, Inc. Additionally, Mr. Yoan Leon Vargas also states in the letter that he holds no equity interest in the company BNY Enterprises, LLC (“BNY”), which owns the real property located at 8832 Ramona Street, and that he has no right or intention to participate in the direction, control, or management of BNY.
It is staff’s understanding that Dynasty Alliance Grow, Inc. submitted the notarized letter to satisfy the condition of renewal pertaining to Mr. Yoan Leon Vargas needing to be Live-Scanned and vetted as “Ownership” (as defined in the Cannabis Regulations).
The City Manager and the City Attorney reviewed the letter and believe that this satisfies the Cannabis Regulations and CBP conditions of approval regarding Mr. Yoan Leon Vargas’s lack of “ownership.”
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Staff Report – Cannabis Business Permit Renewal – Dynasty Alliance Grow, Inc.
February 14, 2022
DISCUSSION – Continued
“Ownership” is defined in Resolution No. 21-08 as a person with an aggregate ownership interest of 25 percent or more in the person seeking a CBP or a permittee seeking a CBP Renewal, unless the interest is solely a security, lien, or encumbrance; or an individual who will be participating in the direction, control, or management of a permittee.
Accordingly, the City Attorney sent the permittee a le tter dated February 10, 2022 outlining the City’s understanding regarding the matter. All other conditions of renewal were satisfied by Dynasty Alliance Grow, Inc. As noted in the City Attorney’s letter, however the City may always summarily revoke the CBP if it discovers that Mr. Yoan Leon Vargas’s assurances were false or misleading.
Relatedly, the City received a letter dated December 22, 2021 from counsel representing a member of former permittee, BB&Y Logistics (now Dynasty Alliance Grow, Inc.); the City Attorney responded by letter dated December 23, 2021; and Dynasty Alliance Grow, Inc. was invited to respond to the letter on December 23, 2021.
Copies of all correspondence is included for reference.
ATTACHMENTS
January 5, 2022 Letter: “Renunciation of Dynasty Alliance Grow, Inc.”........................... 4 January 31, 2022 Letter: “Affirmation of Non-Ownership” .............................................. 5 February 10, 2022 City Attorney’s Letter ........................................................................ 7 City Attorney’s Correspondence ...................................................................................... 8
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February 10, 2022
Dynasty Alliance Grow, Inc. Letter sent via email to:
Ms. Berenice Cristerna [email protected]
8832 Ramona Street
Bellflower, CA 90706
Re: Letter dated January 31, 2022 (signed January 24, 2022) Disavowal of ownership by Mr. Yoan Vargas
Dear Ms. Cristerna:
The City received a letter dated January 31, 2021 [sic] and signed on January 24, 2022 from Mr.
Yoan Leon Vargas (the “Letter”). As you likely know, the Letter appears to disavow Mr. Vargas’s ownership in Dynasty Alliance Grow, Inc. (the “Permittee”) and arises from the Permittee’s conditions of approval in its Cannabis Business Permit (“CBP”). Specifically, Special Condition No. 3 requires that the Permittee
“[p]rovide a certification, in a form approved by the City Attorney, signed under penalty of perjury in accordance with the laws of the state of California, confirming that there is no change in ownership between an originally issued CBP and a renewed CBP, unless approved by the City Council through a Modification application in accordance with the Cannabis Regulations.”
The Letter seeks to avoid Condition No. 3 by asserting Mr. Vargas does not have “ownership” in the Permittee and therefore is not required to undergo a background check.
Based upon the Letter’s assertions, signed under penalty of perjury, it appears that Mr. Vargas does not have an ownership interest in the Permittee. I note, however, that the Letter’s wording is a bit ambiguous.
Specifically, it states that Mr. Vargas has “no right or intention to participate in the direction, control, or management of [the Permittee].” A strict reading of this wording suggests that Mr. Vargas could still be actually participating within the direction, control, or management of the Permittee. Simply because Mr. Vargas lacks the legal right to so engage, or the intent, does not mean Mr. Vargas is not actively directing, controlling, or managing the Permittee.
To ensure that the Letter meets the City Council’s expectations regarding Condition No. 3, the City Manager placed this matter onto the February 14, 2022 regular meeting agenda. You are encouraged to attend that meeting and answer questions the City Council may pose.
Be aware that Bellflower Municipal Code (“BMC”) § 14.28.040 empowers the City Manager to summarily revoke the CBP upon “learning or discovering facts that require permit denial under this title that were not previously disclosed or reasonably discoverable.” Additionally, BMC § 14.28.010 makes it a misdemeanor to violate any part of BMC Title 14 which regulates the CBP. Finally, any evidence of perjury will be transmitted to the Los Angeles County District Attorney’s office for potential prosecution.
Very truly yours,
Karl H. Berger, City Attorney
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Monday, February 7, 2022 at 14:29:13 Pacific Standard Time
Subject:BF - Dynasty Alliance complaint
Date:Thursday, December 23, 2021 at 12:32:41 PM Pacific Standard Time From:Karl Berger
To:[email protected]
CC:Jeff Stewart, Travis Sais, Mayra Ochiqui, CAOffice
ADachments:image001.jpg, 20211222 - Reply LeTer to City of Bellflower City ATorney Karl Berger re Impermissible Transfer of CBP 19637.pdf, 20211223BF - Rogoway.pdf Good a\ernoon –
Be advised that the City of Bellflower received the aTached correspondence from a law firm challenging the City’s acFons regarding your cannabis business permit. Also aTached is my reply. The City welcomes a reply to the allegaFons contained in the !2/22/21 leTer regarding Dynasty Alliance’s CBP.
You should be aware that Dynasty Alliance is obligated to defend and indemnify the City in any legal acFon involving your CBP permit. Please also be aware that the City may be required to review your permit if it discovers false or misleading informaFon that was omiTed from the applicaFon submiTed to the City.
IdenFficaFon of any such informaFon may lead to revocaFon of your CBP.
Thank you for your aTenFon to this maTer.
Karl H. Berger
2600 W. Olive Avenue, Suite 500
Burbank, California 91505
818-333-5120 Office
661-644-5476 Mobile
[email protected]
www.hensleylawgroup.com
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BURBANK OFFICE
2600 W. OLIVE AVENUE
SUITE 500
BURBANK, CA 91505
______________
TORRANCE OFFICE
3655 TORRANCE BOULEVARD
SUITE 300
TORRANCE, CA 90503
SAN DIEGO OFFICE
3850 LA JOLLA VILLAGE DRIVE
LA JOLLA, CA 92037
WRITER'S DIRECT CONTACT:
BURBANK OFFICE
[email protected]
661.644.5476
WWW.HENSLEYLAWGROUP.COM
December 23, 2021
VIA EMAIL AND U.S. MAIL
Mr. Joseph Rogoway
Rogoway Law Group
115 4th Street, 2nd Floor, Suite B
Santa Rosa, California 96401
[email protected]
Re: Letter dated December 22, 2021
Dear Mr. Rogoway:
Thank you for your letter dated December 22, 2021. It is unclear what your letter seeks to achieve other than to create exhibits for some sort of writ petition that you obviously plan on filing against the City. So, I will be brief.
Had you reviewed the documentation that is available on the City’s website regarding cannabis permits (links were provided in my December 14, 2021 letter), you would see that the City’s cannabis regulations consist of far more than what is codified in the Bellflower Municipal Code.
Since your letter seems to hang on the notion of “ownership,” let me save you some research time and point you to Resolution No. 21-07 which defines that term for purposes of permit transfers. If you were to read the staff reports and meeting minutes associated with the modification process, you would see that the City Council’s intent regarding ownership transfers is to ensure owners are thoroughly vetted. The process has nothing to do with protecting an individual owner’s private property rights (if any); it only has to do with protecting public health, safety, and welfare. Accordingly, the City does not have any legal obligation to inform all owners of a permittee regarding a pending application.
As to your fun characterization of the City’s actions regarding your firm’s Public Records Act request, you conveniently ignore that you were provided with information during the actual public hearing regarding the permit renewal and encouraged to participate. Only your client, however, provided testimony; other than correspondence sent to the City Council outside the scope of the public hearing – which I specifically made part of the record to ensure transparency regarding the matter – the City Council heard nothing from your firm.
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Mr. Joseph Rogoway
December 22, 2021
Your December 22nd letter also fails to acknowledge the City’s attempts to fulfill your vague, overbroad, and unduly burdensome public records request. Specifically, the City provided you with two specific URL links from where all public documents can be retrieved via the City’s webpage. The City is not legally required to engage in fishing expeditions based upon vague and inflammatory requests from your law firm and respectfully declines to do so.
The City is standing by for a revised request. My suggestion is for your firm to narrow the PRA request as to date, time, and/or authors. You are, again, informed that correspondence older than December 2019 will not be available since the City’s keeps such documents for two years in accordance with its retention schedule.
The only actual fact in your letter that piqued my interest was the quoted language referring to your client which your letter alleges is in the application. I agree that this deserves my attention.
Note that City Hall is closed until January 2022. I wish you a very Happy Holiday season.
Very truly yours,
Karl H. Berger
City Attorney
c: Mayor, Mayor pro tem, City Councilmembers
Jeff Stewart, City Manager
Mayra Ochiqui, City Clerk
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December 22, 2021
VIA EMAIL AND U.S. MAIL
Karl H. Berger, Esq.
City Attorney for the City of Bellflower
c/o Hensley Law Group
2500 W. Olive Avenue, Suite 500
Burbank, California 91505
(818)333-5120
Re: Impermissible Transfer of Cannabis Business Permit 19637 Dear Mr. Berger:
As you know, this firm represents Mr. Rene Orellana (“Mr. Orellana”), a military combat veteran and one of two equity owners of Cannabis Business Permit 19637 (“CBP 19637”). I have received your emails dated December 9, 2021, and I have also received your December 14, 2021 response to this firm’s December 10, 2021 Public Records Act Request (all attached as “Exhibit A”).
I am writing you because it has come to our attention that the City of Bellflower (“Bellflower”) has unlawfully allowed CBP 19637 to be: (1) modified to remove Mr. Orellana as the 40% owner of that permit; and (2) transferred, from BB&Y Logistics, LLC (“BB&Y”), a California limited liability company, to a new and different entity, Dynasty Alliance Grow, Inc (“Dynasty”), a California corporation.
CBP 19637: No Cognizable Ownership Transfer
On December 9, 2021, you provided us with a copy of a “CANNABIS BUSINESS PERMIT (CBP) AND MEDICAL CANNABIS BUSINESS PERMIT (MCBP) MODIFICATION APPLICATION” (the “CBP Transfer Application”), which application appears to show Berenice Cristerna (“Ms. Cristerna”) seeking to modify CBP 19637 by removing Mr. Orellana as an owner of that permit, and by transferring that permit, from BB&Y, an entity that Mr. Orellana owns 40% of, to Dynasty, an entity in which Mr. Orellana has no ownerships interest. The CBP Transfer Application appears to have been signed, on July 17, 2021, by Ms.
Cristerna, as both the landlord and the applicant.
The transferability of a Cannabis Business Permits (a “CBP”) in Bellflower is controlled by Bellflower Municipal Code section 14.08.070, which is entitled: 14.08.070 Prohibition on Transfer of Cannabis Business Permits—Exception for Conversions.
Section 14.08.070(B) prohibits both the transfer of ownership or control of a cannabis business, and the transfer of any cannabis business permit, through the following language:
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“No person may transfer ownership or control of a cannabis business permit or transfer any cannabis business permit issued under this title. A cannabis business permittee has no right to sell or transfer a cannabis business permit to another party or to have the city consider whether it should authorize the transfer of a cannabis business permit to another party. Any attempt to transfer ownership of a cannabis business or of a cannabis business permit will automatically render the cannabis business permit void.”
Section 14.08.070(B) also sets forth the requirements for an application for the transfer of a CBP Transfer Application. As Bellflower’s own transfer application form states:
“IF THE APPLICATION SEEKS AN OWNERSHIP CHANGE THE APPLICATION MUST ALSO INCLUDE:
• EVIDENCE DEMONSTRATING THERE HAS BEEN NO CHANGE IN OWNERSHIP SINCE THE ORIGINATION DATE.
• EVIDENCE DEMONSTRATING THAT THE OWNERSHIP WILL BE SUBSTANTIALLY THE SAME AS ON THE ORIGINATION DATE. SUCH EVIDENCE MAY INCLUDE (IF
AVAILABLE FROM THE ORIGINATION DATE) A COMPARISON OF OWNERSHIP
INTEREST ON THE ORIGINATION DATE AND APPLICATION FOR A MODIFICATION
CBP AND MUST INCLUDE AN AFFIDAVIT SIGNED UNDER PENALTY OF PERJURY
PURSUANT TO THE LAWS OF THE STATE OF CALIFORNIA THAT THE PERMITTEE'S
KEY INDIVIDUALS WILL CONTINUE IN THE SAME POSITION OR IN A POSITION WITH GREATER RESPONSIBILITY WITH THE PERMITTEE.
•AN EXPLANATION REGARDING THE REASONS FOR THE REQUEST TO CHANGE OWNERSHIP.
•IF THE CHANGE IN OWNERSHIP WILL ADD PERSONS NOT PREVIOUSLY
CONSIDERED BY THE CITY COUNCIL ON THE ORIGINATION DATE, THOSE PERSONS
MUST MEET THE MINIMUM QUALIFICATIONS REQUIRED BY THE CANNABIS REGULATIONS WHICH REPLICATED HERE: A PERSON OF GOOD CHARACTER, HONESTY, AND INTEGRITY; A PERSON WHOSE BACKGROUND, REPUTATION AND
ASSOCIATIONS WILL NOT RESULT IN ADVERSE PUBLICITY FOR THE CITY OF BELLFLOWER OR ITS ECONOMIC DEVELOPMENT; AND HAS ADEQUATE BUSINESS
COMPETENCE AND PRACTICAL EXPERIENCE FOR OPERATING THE CANNABIS RELATED BUSINESS.”
Here, the CBP Transfer Application, which was apparently submitted by Ms. Cristerna, does not comply with section 14.08.070(B), and it also fails to comply with the all-caps directives provided, by Bellflower, in the application itself.
Section 14.08.070(B) expressly prohibits the transfer of ownership and control in a CBP. Yet, in the CBP Transfer Application, Ms. Cristerna sought to transfer Mr. Orellana’s 40% ownership in CBP 19637 to herself, and to then transfer CBP 19637 to a new entity that she, alone, owns. Although Bellflower evidently -12-
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previously approved of that transfer1, that was an outrageous violation of the clear and express terms of section 14.08.070(B), which, under the terms of section 14.08.070(B), means that CBP 19637 is now void.
Further, Ms. Cristerna did not include, in the CBP Transfer Application, any evidence that there had been “no change in ownership since the origination date” of CBP 19637, even though that is required by the transfer application form. Apparently, that was because Ms. Cristerna was, in fact, seeking to change 40% of the ownership, and, thus, she could not provide the required evidence.
Ms. Cristerna also failed to present any “evidence that the ownership will be substantially the same as on the origination date,” as is also required by the transfer application form. Apparently, that was because Ms.
Cristerna was, in fact, seeking to substantially change the ownership, quantified as 40%, and, thus, she could not provide the required evidence.
In addition, there is no evidence that Ms. Cristerna executed the required affidavit, signed under penalty of perjury, affirming that “key individuals will continue in the same position or in a position with greater responsibility with the permittee”. Instead, in the CBP Transfer Application, Ms. Cristerna offers only this coded, and troubling, justification for failing to submit the required affidavit, signed under penalty of perjury:
“N/A. The City of Bellflower has already agreed to execute the change in ownership to remove Rene Orellana from the license.”
This statement poses serious questions for Bellflower, as it apparently agreed, outside of any cognizable process, without notice, and in direct contravention of the express and unequivocal provisions of its own municipal code, to execute a change in ownership by transferring 40% of the equity ownership in CBP 19637 by removing Mr. Orellana from that permit, and by then transferring that permit to Dynasty.
No License Issued by Department of Cannabis Control to Dynasty Alliance Grow Bellflower Municipal Code section 14.08.060 controls the renewals of cannabis business permits in Bellflower. It states, in relevant part:
“D. The renewal application must be denied if any of the following circumstances exists:
1. The renewal application is filed less than 60 calendar days before expiration of the permit.
2. The cannabis business permit is suspended at the time of the application.
3. The cannabis business has not been in regular and continuous operation in the four months before the renewal application.
4. The cannabis business failed to conform to the requirements of this title or any regulations adopted pursuant to this title.
1 Insofar as we are aware, Bellflower never attempted to notify Mr. Orellana of, much less obtain his permission for, the purported transfer of his 40% ownership in CBP 19637
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5. The permittee does not possess a valid license from the State of California, if required by law.” (emphasis added)
As far as we have been able to determine, Dynasty does not have a license from the Department of Cannabis Control (See DCC License Search Results attached hereto as Exhibit B). Thus, under Bellflower Municipal Code section 14.08.060(D)(5), Dynasty cannot have any license renewed.
Presumably, Dynasty is not currently cultivating cannabis at the BB&Y facility located at 8832 Ramona Street, Bellflower, CA 90706. If that is true, then, under section 14.08.060(D)(3), Dynasty cannot have a CBP renewed. Further, if Dynasty is currently cultivating cannabis, then it would: (1) not be eligible for a CBP renewal, under section 14.08.060(D)(4); (2) be in violation of numerous statutes and regulations; and (3) be in violation of numerous criminal laws.
As you can see, for several reasons, the renewal application for Dynasty must be denied under Bellflower Municipal Code section 14.08.060(D).
Public Records Act Requests
On December 10, 2021, this firm submitted a request, to Bellflower, under the California Public Records Act, which request seeks information related to CBP 19637 (the “Request,” attached hereto as Exhibit C).
On December 14, 2021, we received a written response (the “Response,” attached hereto as Exhibit D), from you. In broad terms, the Response essentially contends that the Request is overbroad and unduly burdensome. In support of that contention, you provided boilerplate authorities.
But, as you are undoubtedly aware, the California Public Records Act (the “CRPA”) is conceived broadly to require full agency disclosure, unless the information is statutorily exempted. (Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal. App. 4th 759; see also Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379 (California Public Records Act embodies strong policy in favor of disclosure of public records)). All public records are subject to disclosure, unless the California Public Records Act expressly provides otherwise. (See American Civil Liberties Union of Northern Cal. v. Superior Court (2011) 202 Cal. App. 4th 55.)
An entity attempting to deny access to public records has the burden of proof, and it must justify withholding any record by demonstrating that, on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by the disclosure of the record. (Los Angeles Unified School Dist. V. Superior Court (2007)151 Cal. App. 4th 759; see also Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal. App. 5th 733 (declaration, by county’s deputy director of project planning, in support of county’s refusal to disclose documents related to project, was merely conclusory, and, thus, was inadequate to establish that the documents were subject to the preliminary draft exemption and the deliberative process privilege, where deputy director only discussed the 1,900 documents as a single whole, rather than analyzing each document individually, where deputy director did not explain the role of individual documents in the deliberative process for project approval or why disclosure of each document would be harmful, and where deputy director only recited policy-based justifications for nondisclosure in general)). -14-
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In the Response, you claim, without any analysis: “[The Request is] overbroad and unduly burdensome and would impose an unreasonable and substantial burden on City resources and personnel to retrieve and review documents that may be responsive and to make determinations as to segregating disclosable and undisclosable material. Accordingly, the public interest in efficiency of government and limitation of its costs favors the City not processing your request ‘as is.’” (Response Pg. 1, Paragraph 3).
You are apparently claiming that the public interest exemption under the CPRA justifies Bellflower’s nondisclosure. This is nonsense. The public interest exemption under the CPRA, which allows a public agency to justify withholding any record by demonstrating that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record, contemplates a case-by- case balancing process, and the proponent of nondisclosure must demonstrate a clear overbalance on the side of confidentiality. (Voice of San Diego v. Superior Court of San Diego County (2021) 66 Cal.App.5th 669.) In your response, you did not even attempt to balance the public interest served by not disclosing the records against the public interest served by disclosing the records. Perhaps that is because there is no public interest served by not disclosing the records.
Instead, the Response, which appears to be, in large part, a template cut and pasted from other letters you wrote in other matters, is under the circumstances here, preposterous. As stated above, there are serious issues related to Bellflower’s conduct in this matter, including: (a) Bellflower’s failure to follow its own municipal code; (b) the conduct of Bellflower officers and employees in transferring CBP 19637, resulting CBP 19637 being transferred contrary to the law; and (c) the transfer of CBP 19637 to an entity without a license issued by the DCC. Your mere assertion of the catch-all public interest exemption as a justification to withhold disclosure here is without merit, and it will not survive scrutiny.
Indeed, there is a strong public interest in disclosing the records sought. Mr. Orellana, and the general public, have the right to know whether Bellflower is following its own ordinances or whether those ordinances are being flagrantly disregarded, as appears to be the case here. Moreover, Mr. Orellana, and the general public, have the right to disclosure of records which will shed light on whether Bellflower is violating its ordinances in order to favor specific individuals who have personal relationships with Bellflower officials. Perhaps that is not the case, and perhaps Bellflower can explain its conduct. But, this Request is not, as you sarcastically claim, a “cathartic” fishing expedition. Beyond the acute and significant damages that Mr. Orellana has suffered due to Bellflower’s actions in this matter, this matter is also a matter of public integrity.
Instead of refusing to process the Request “as is,” Bellflower should, if reasonably required to comply with the Request, seek additional time to comply. That is what the weight of authorities mandates. (See Govt.
Code, § 6253; Becerra v. Superior Court (2020) 44 Cal. App. 5th 897 (Department of Justice failed to establish that public interest served by nondisclosure of requested records in its possession related to state and local police officers’ use of force, discharge of firearms, sexual assault, and dishonesty clearly outweighed public interest in police accountability served by disclosure under the CPRA, and, thus, records could not be withheld pursuant to the CPRA catchall exemption, where the Department did not provide a meaningful, detailed estimate of the burden and cost of production, the Department could seek an extension -15-
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of time for disclosure, consultation with other agencies, and redaction, and the Legislature anticipated disclosure would be costly).
If Bellflower wishes to amend its Response, and if it requests additional time to process the Request, Mr.
Orellana may be amenable. Alternatively, if Bellflower continues its evident attempt to stonewall the disclosure of the requested records, which are clearly material, and in which the public’s interest in disclosure is obvious, then we will have no reasonable alternative but to view that position as consciousness of guilt, and to proceed under the assumption that Bellflower is a malign actor complicit in the transfer of CBP 19637 outside of the bounds of the law.
This letter is not intended to be a complete statement of the facts or of the law relevant to this matter.
Additionally, nothing contained herein shall constitute an admission of any kind whatsoever, nor shall it constitute a waiver of any rights or remedies at law, in equity, or otherwise, all of which are hereby expressly reserved.
I look forward to receiving your response as soon as reasonably possible.
Regards,
_____________________________
Joseph Rogoway, Esq.
Attorney for Rene Orellana
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EXHIBIT A
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Re: BF - BB&Y Logistics, LLC - Dynasty Alliance Grow, Inc- Invalid Cannabis Business Permit Transfer and Demand for Return of Permit to BB&Y
---------- Forwarded message ---------
From: Karl Berger
Date: Thu, Dec 9, 2021 at 11:16 AM
Subject: BF - BB&Y Logistics, LLC - Dynasty Alliance Grow, Inc- Invalid Cannabis Business Permit Transfer and Demand for Return of Permit to BB&Y To: [email protected]
Cc: Jeff Stewart
Mr. Rogoway –
Your correspondence was forwarded to my attention. Please direct any further correspondence from your office to my attention.
The public hearing is currently in process. Your client – or you – may certainly provide public testimony regarding the matter. You may access the meeting here:
By logging into Zoom at the following link https://us02web.zoom.us/j/82807536352 (Meeting ID number: 828 0753 6352 The approval of the modification occurred four months ago pursuant to the attached application.
This appears to be a civil dispute that does not involve the City. Indeed, the City is not a party to any litigation regarding this matter. Absent a specific order from the court for the City Council to suspend consideration of the renewal application, there is no legal basis to do so.
The City Council may, of course, postpone any decision regarding the matter, but is not required to. Accordingly, you are encouraged to have your client participate in the public hearing which, again, is currently being conducted.
Thank you.
Karl H. Berger
2600 W. Olive Avenue, Suite 500
Burbank, California 91505
818-333-5120 Office
661-644-5476 Mobile
[email protected]
www.hensleylawgroup.com
Begin forwarded message:
From: Joe Rogoway
Date: December 9, 2021 at 10:24:05 AM PST
To: Dan Koops , Sonny Santa Ines , Victor Sanchez , "Raymond Y. Hamada" , Raymond Dunton
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Cc: Travis Sais , David Carman , Bird Orellana
Subject: BB&Y Logistics, LLC - Dynasty Alliance Grow, Inc- Invalid Cannabis Business Permit Transfer and Demand for Return of Permit to BB&Y Dear Mayor Koops and Members of the Bellflower City Council, I represent Rene 'Bird' Orellana in his lawsuit against Berenice Cristerna concerning BB&Y Logistics LLC and the commercial cultivation facility located at 8832 Ramona Street, Bellflower, CA 90706. I have attached a copy of this lawsuit for your review.
It has come to my attention that the City of Bellflower allowed the Cannabis Business Permit previously issued to BB&Y to be transferred to Dynasty Alliance Grow and that it is on the Council's agenda this morning to renew the improperly transferred Cannabis Business Permit . As one a rightful owner of the CBP, Mr.
Orellana should have been provided notice of the requested transfer and been provided an opportunity to object or to approve that transfer; even assuming that such transfer was permitted pursuant to the City's ordinance, which we believe it is not.
We demand that the City of Bellflower denies Dynasty Alliance Grow, Inc.'s request today for a renewal of this improperly transferred CBP and that the City restores the CBP to the correct entity, BB&Y Logistics, LLC. Failure to do so will be perilous for the City of Bellflower.
Please confirm receipt of this correspondence and confirm that the demands contained herein will be met.
Very Truly Yours,
Joe Rogoway
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P (707) 526-0420
E [email protected]
W www.rogowaylaw.com
JOE ROGOWAY
Managing Partner, Rogoway Law Group
A 115 4th St., Second Flr, Ste. B | Santa Rosa, CA 95401 LOS ANGELES | SAN FRANCISCO | SANTA ROSA
The information contained in this correspondence is confidential and it may be subject to attorney-client privilege and work-product restrictions. If you are not the intended recipient, do not read, copy, distribute, or use any information contained in this correspondence or its attachments. If this correspondence is delivered or received in error, please notify my office by reply or phone (707) 526-0420 and delete and destroy all copies. California Evidence Code Section 956 Notice: This correspondence and legal services provided by Rogoway Law Group, P.C., apply only to medicinal or adult-use cannabis activity, in each case conducted in compliance with California law and applicable local standards, requirements and regulations. In conflict with California law, Federal law prohibits the production, possession, sale and transportation of cannabis. Nothing in this correspondence or accompanying legal services is intended to assist with violation of any applicable law. Thank you for your anticipated cooperation. --
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P (707) 526-0420
E [email protected]
W www.rogowaylaw.com
JOE ROGOWAY
Managing Partner, Rogoway Law Group
A 115 4th St., Second Flr, Ste. B | Santa Rosa, CA
95401
LOS ANGELES | SAN FRANCISCO | SANTA
ROSA
The information contained in this correspondence is confidential and it may be subject to attorney-client privilege and work-product restrictions. If you are not the intended recipient, do not read, copy, distribute, or use any information contained in this correspondence or its attachments. If this correspondence is delivered or received in error, please notify my office by reply or phone (707) 526-0420 and delete and destroy all copies. California Evidence Code Section 956 Notice: This correspondence and legal services provided by Rogoway Law Group, P.C., apply only to medicinal or adult-use cannabis activity, in each case conducted in compliance with California law and applicable local standards, requirements and regulations. In conflict with California law, Federal law prohibits the production, possession, sale and transportation of cannabis. Nothing in this correspondence or accompanying legal services is intended to assist with violation of any applicable law. Thank you for your anticipated cooperation.
CBP Modification 2021 - BB&Y.pdf
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Blair Gue
BF - Response to PRA Request
Karl Berger Tue, Dec 14, 2021 at 4:47 PM
To: "[email protected]"
Cc: "[email protected]" , "[email protected]" , CAOffice
Please see attached. A hardcopy will follow.
Karl H. Berger
2600 W. Olive Avenue, Suite 500
Burbank, California 91505
818-333-5120 Office
661-644-5476 Mobile
[email protected]
www.hensleylawgroup.com
BF - PRA 21-498 response 12142021 v2.pdf
398K
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EXHIBIT B
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EXHIBIT C
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PUBLIC RECORDS ACT REQUEST FORM
City of Bellflower – City Clerk’s Office
16600 Civic Center Drive, Bellflower, California 90706 Email: [email protected] / Phone: (562) 804-1424, Ext. 2271 Campaign Documents – Political Reform Act –GC81008: Public records; inspection and reproduction; time; charges “(a) Every report and statement filed pursuant to this title is a public record open for public inspection and reproduction during regular business hours, commencing as soon as practicable, but in any event not later than the second business day following the day on which it was received. No conditions whatsoever shall be imposed upon persons desiring to inspect or reproduce reports and statements filed under this title, nor shall any information or identification be required from such persons. Copies shall be provided at a charge not to exceed ten cents ($0.10) per page. In addition, the filing officer may charge a retrieval fee not to exceed five dollars ($5) per request for copies of reports and statements which are five or more years old. A request for more than one report or statement at the same time shall be considered a single request.” For Internal Use Only
Tracking Due Dates Distribution
___ Logged
___ Distributed
___ Calendared
10 Day: ____________
14 Day: ____________
X CA ____ ED ____ PL ____ P&R
X CC ____ FIN ____ B&S ____ PS
X CM ____ HR ____ CE ____ PW
Revised 06-08-17
________________________________________ _______________________________________ Requestor’s Name (Print) Company or Organization (if applicable) ________________________________________ _______________________________________ Address Phone (Home/Business/Mobile)
________________________________________ _______________________________________ Email Address
________________________________________
Requestor’s Signature
I am requesting to: __ Review __ Obtain a copy (Pick one: __ Pick-up __ Mail __ Email) Document Type: __ Building __ Contract __ Minutes __ Ordinance __ Resolution __ Other Permits
Please provide a detailed description of the public record(s) requested, i.e., name of document, date range, property address, and/or other applicable details that will assist with identifying the record.
___________________________________________________________________________________ ___________________________________________________________________________________ ___________________________________________________________________________________ YOUR REQUEST WILL BE PROCESSED IN COMPLIANCE WITH THE PUBLIC RECORDS ACT, pursuant to California Government Code Section 6250, which, in part, provides that upon receipt of a request for public records, the City has ten (10) calendar days to notify the requestor of its determination as to whether there are public records responsive to the request and, if so, when those records will be available.
Basic Fees: Campaign Documents per Political Reform Act GC81008 – 10 cents per page; all other records 25 cents per page; $5.00 per CD/DVD; and postage costs, if applicable. Other applicable fees pursuant to the Comprehensive Fee Schedule.
PRA No. ____________
Received: / /___
X X
X
PLEASE SEE ATTACHED
Blair Gue Rogoway Law Group
115 4th Street, 2nd Floor - Suite B
Santa Rosa, CA 95401
707-526-0420
[email protected]
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Public Records Act Request Attachment
Date Range for all Requests: January 1, 2018 – December 10, 2021
1. I hereby request copies of any and all application documents, records, permits, requests, filings, and other documentation received by, or generated, by the City of Bellflower in relation to the commercial cannabis business operating at 8832 Ramona Street, Bellflower, CA 90706.
2. I hereby request copies of any and all correspondence to and from any and all City of Bellflower officials related to the commercial cannabis cultivation business operating at 8832 Ramona Street, Bellflower, CA 90706. For avoidance of doubt, this request includes, but is not limited to, correspondence received from, or sent to, any of the following individuals:
a.Berenice Cristerna
b. Yoan Leon
c.Rene Orellana
d. Allison Margolin
e.Raza Lawrence
3. I hereby request copies of any and all communications received by any member of the Bellflower City Council, by the City of Bellflower’s planning department, by the City of Bellflower’s Manager, and/or by the City of Bellflower’s Manager’s office, which communications were from any of the following entities or people:
f. BB&Y Logistics, LLC
g. Dynasty Alliance Grow, Inc.
h. Berenice Cristerna
i.Yoan Leon
j.Rene Orellana
k. Allison Margolin
l.Raza Lawrence
For avoidance of doubt, this request includes, but is not limited to, any and all text messages, emails, written notes, and all other forms of communication.
4. I hereby request copies of any and all communications sent from any member of the Bellflower City Council, from the City of Bellflower’s planning department, from the City of Bellflower’s Manager, and/or from the City of Bellflower’s Manager’s office, which communications were to any of the following entities or people:
a.BB&Y Logistics, LLC
b. Dynasty Alliance Grow, Inc.
c.Berenice Cristerna
d. Yoan Leon
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e.Rene Orellana
f. Allison Margolin
g. Raza Lawrence
For avoidance of doubt, this request includes, but is not limited to, any and all text messages, emails, written notes, and all other forms of communication.
5. I hereby request copies of any and all records, documents, communications, paperwork, forms, or other items pertaining to BB&Y Logistics, LLC’s Cannabis Business Permit issued by the City of Bellflower, or pertaining to any request to modify or transfer that permit. For avoidance of doubt, this request includes, but is not limited to, any communications between a City of Bellflower official and anyone else, which communications constitute, evidence, or pertain to that permit, or to a request or an application to modify or transfer that permit.
6.I hereby request copies of any and all records, communications, documents, paperwork, forms, or other items that cite, or that otherwise reference, the City of Bellflower's cannabis business permit transfer ordinance provisions (See Municipal Code Section 14.08.070(B)).
7. I hereby request copies of any and all records, communications, forms, or other documents in the possession of, sent by, or received by any City of Bellflower official, which records, communications, forms, or other documents include any reference to any of the following:
a.Bo's Cigar Lounge or “Bo’s”
b. 16515 Bellflower Blvd; or
c.(562) 303-9812
8. I hereby request copies of any and all documents constituting or evidencing entries, references, or items, on the calendars or appointment books of each of the City of Bellflower’s City Council members, on the calendars or appointment books of the City Manager of the City of Bellflower, and on the calendars or appointment books of any employee of the City of Bellflower involved in the City of Bellflower’s cannabis program, which entries, references, or items relate to any of the following:
a.Berenice Cristerna
b. Yoan Leon
c.Rene Orellana
d. Allison Margolin
e.Raza Lawrence
f. BB&Y Logistics, LLC
g. Dynasty Alliance Grow, Inc.
h. Bo’s Cigar Lounge or “Bo’s”
i.16515 Bellflower Blvd.
j.(562) 303-9812
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9.I hereby request copies of any and all communications, records, notices, documents, or other materials from the Federal Bureau of Investigation, or from the California Fair Political Practices Commission, or from any other enforcement or regulatory agency, which communications, records, notices, documents, or other materials concern, or relate to, actual or alleged public corruption, or actual or alleged illegal conduct, on the part of the City of Bellflower, or on the part of any employee or representative of the City of Bellflower.
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EXHIBIT D
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BURBANK OFFICE
2600 W. OLIVE AVENUE
SUITE 500
BURBANK, CA 91505
______________
TORRANCE OFFICE
3655 TORRANCE BOULEVARD
SUITE 300
TORRANCE, CA 90503
SAN DIEGO OFFICE
3850 LA JOLLA VILLAGE DRIVE
LA JOLLA, CA 92037
WRITER'S DIRECT CONTACT:
BURBANK OFFICE
[email protected]
661.644.5476
WWW.HENSLEYLAWGROUP.COM
December 14, 2021
VIA EMAIL AND U.S. MAIL
Ms. Blair Gue, Esq.
Rogoway Law Group
115 4th Street, 2nd Floor, Suite B
Santa Rosa, California 96401
[email protected]
Re: California Public Records Act Request dated December 10, 2021 Dear Ms. Gue:
This office serves as City Attorney for the City of Bellflower. We were forwarded a copy of your December 10, 20211 request for a voluminous amount of records under the California Public Records Act (“CPRA”). Thank you for your correspondence. While much of your request may be construed as an attempt to burden valuable and constrained City resources to satisfy an unreasonable “fishing expedition,” some of your request does appear to request copies of records pursuant to the CPRA.
Note that the CPRA requires the City to disclose “writings” that it keeps in the ordinary course of business (Gov’t. Code § 6252).2 However, it does not require the City to generate new records when responding to a request for documents (Rosenthal v. Hansen (1973) 34 Cal. App. 3d 754). Moreover, the CPRA does not require the City to comply with requests for documents that are unduly burdensome (State Bd. of Equalization v. Super. Ct. (1992) 10 Cal. App. 4th 1177).
Your request is obviously overbroad and unduly burdensome and would impose an unreasonable and substantial burden on City resources and personnel to retrieve and review documents that may be responsive to your request and to make determinations as to segregating disclosable and undisclosable material. Accordingly, the public interest in the efficiency of government and limitation of its costs favors the City not processing your request “as is” (§ 6255; see, e.g., Cal. First Amendment Coalition v. Sup. Court (1998) 67 Cal.App.4th 159; North County 1 The City received the request as of December 13, 2021 as City Hall was closed on December 10, 2021. 2 Further references to an undesignated code are to the Government Code. -30-
Ms. Blair Gue, Esq.
Bellflower CPRA Response
December 14, 2021
Parents Organization v. Department of Education (1994) 23 Cal.App.4th 144; State Board v. Sup.
Court (1992) 10 Cal.App.4th 1177).
The CPRA also exempts certain types of documents from disclosure (see generally §§ 6254, 6255). Accordingly, assuming that you submit a revised request, the City will not release the following types of documents:
•The City generally need not disclose preliminary drafts, notes, or interagency or intra- agency memoranda that are not retained by the City in the ordinary course of business.
Accordingly, unless such writings are on file with the City, these types of documents will not be provided (see § 6254(a));
•Section 6254(k) specifically exempts records that are protected under federal and state law. Accordingly, documents available for disclosure are those not protected by attorney- client, work-product, or other, privilege (see § 6276.04); •Similarly, records prepared in anticipation for litigation to which the City is a party will not be disclosed (§ 6254(b)); and
•The deliberative process privilege exempts disclosure of documents where public discussion would interfere with staff attempts to make candid and objective recommendations and the City’s perceived needs, rather than public opinion. (See Times Mirror Company v. Sup. Ct. (1991) 53 Cal.3d 1325; Cal. 1st Amendment Coalition v.
Super. Ct. (1998) 67 Cal.App.4th 159; Wilson v. Super. Ct. (1996) 51 Cal.App.4th 1136).
Accordingly, if the public interest in nondisclosure of certain records outweighs your private interests in disclosure, as is the case with your request for entries on calendars or appointment books, for example, those records will not be released.
The City determined that your request does seek certain disclosable records in the City’s possession. You may access such records regarding cannabis licensing on the City’s website at:
https://www.bellflower.org/government/city_manager/cannabis_establishment.php . Similarly, you may also access an archive of all cannabis-related agenda materials, including agendas, staff reports, resolutions, and ordinances are available through the City’s website at:
https://archive.bellflower.org/WebLink/Browse.aspx?dbid=0 . Materials that you can independently retrieve from the City’s website will not be separately provided to you as this additional effort would be unduly burdensome to the City as an unnecessary expenditure of public resources.
Regarding your request for correspondence and communications, please provide additional clarification on the nature and specifics of such records you seek. This will assist staff in identifying potentially responsive and disclosable records. The City is not required to engage in guesswork in order to respond to a purported CPRA request. -31-
Ms. Blair Gue, Esq.
Bellflower CPRA Response
December 14, 2021
For the applicable timeframe, keep in mind that California law generally requires the City to maintain such records for two years. The City’s records retention schedule may have caused records before approximately December 2019 to be destroyed.
Should the City receive a clarification of your request, it may produce disclosable records pursuant to § 6253(b). These may be provided via an electronic link for download. Should public records, however, only be available via hardcopy, you will be required to submit a deposit with the City for photocopy charges. If you wish to review documents in person, then you will be required to make an appointment with the City Clerk’s office so that the documents can be retrieved and provided to you in a secured room. Note that you will be required to adhere to the City’s COVID-19 protocols should you seek access to City Hall.
Regarding No. 8 of your request: while I can certainly appreciate the cathartic exercise of engaging in such hyperbole, your implications are unprofessional and unwelcome. The City does not have any such disclosable records as none exist. If you believe that any public official engaged in actions that might – whether under statute or common law – be viewed as a conflict of interest or illegal behavior, then I welcome you providing me facts supporting such a notion. I am not aware of any.
Any subsequent inquiry regarding this matter must be made in writing to my attention.
Very truly yours,
Karl H. Berger
City Attorney
c: Mayor, Mayor pro tem, City Councilmembers
Jeff Stewart, City Manager
Mayra Ochiqui, City Clerk
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