Part 2: Gross incompetence, Willful with the intent to cause undue hardship, or Blatant and unchecked discrimination of applicants civil liberties?

Dec 20, 2019 | Archives | 0 comments

Despite not being convicted of any charges due to self-defense and none of the charges being relevant to the 5 years previous to submitting her application, the CCC has placed her under Suitability Review asking for more information. More specifically, information that is publicly available and that would have been stated in the background check. What is the purpose of the CCC requesting information on firearms being involved when there is no firearms charge associated anywhere? When looking at the charges, not one includes a firearm. So why is the CCC demanding this kind of information? This RFI is an insult to a woman who was not convicted nor is it required per the qualifications that would deem it relevant (see regulations below). The lack of EEA’s moving from application to Provisional Licensure almost seems intentional when sending RFI after RFI without the reasoning fitting the requirement.  Leah’s case and CCC’s RFI can be read below.

Leah DANIELS vs. COMMONWEALTH

Leah DANIELS vs. COMMONWEALTH.

SJC-09875

November 17, 2009.

Supreme Judicial Court, Appeal from order of single justice. Practice, Criminal, Double jeopardy, Required finding. Armed Assault with Intent to Murder. Mayhem. Assault and Battery by Means of a Dangerous Weapon. Self-Defense.

Willie J. Davis for the petitioner.

Macy Lee, Assistant District Attorney, for the Commonwealth.

RESCRIPT.

Leah Daniels appeals from a judgment of a single justice of this court denying her petition for relief pursuant to G.L. c. 211, § 3. We affirm.

Following a mistrial in 2002, Daniels was retried in 2005 on charges of armed assault with intent to murder, mayhem, and assault and battery by means of a dangerous weapon. At trial, she moved unsuccessfully for a required finding of not guilty. See Mass. R.Crim. P. 25(a), 378 Mass. 896 (1979). The jury later became deadlocked, and the judge declared a mistrial. Daniels moved unsuccessfully in the Superior Court to dismiss the charges, claiming that the Commonwealth’s evidence was insufficient to sustain any convictions, and that, accordingly, principles of double jeopardy barred retrial. See Kater v. Commonwealth, 421 Mass. 17, 19 (1995); Berry v. Commonwealth, 393 Mass. 793, 798-799 (1985). She then petitioned for relief in the county court, pursuant to G.L. c. 211, § 3, to no avail.

Examined in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), the evidence was as follows. One early December morning in 1999, following a party at a nightclub in downtown Boston, Scott Sullivan and a few friends walked out of the club to hail a taxicab. While he and a female friend walked into the street, leaving two other friends on the sidewalk, a dark sedan pulled up and double parked. The driver went to a nearby pizza restaurant, leaving the door open and music playing on the radio; several passengers were inside. Sullivan sat in the driver’s seat, played with the radio, and tried to engage the front passenger, a woman, in friendly conversation. One of Sullivan’s friends told him to get out of the car, but he remained. Shortly thereafter, the driver returned and yelled at Sullivan to get out of the car. Sullivan apologized and stepped out of the car. Sullivan was then surrounded by three or four people yelling at him. At the center of the group was Daniels, who screamed, “What the fuck are you doing in my car? Who the fuck are you?” and slashed Sullivan’s ear and neck with a knife. Sullivan’s ear was cut nearly off, and he suffered severe injuries to major arteries in his neck, losing a large amount of blood and requiring many hours of surgery.

According to Daniels’s testimony, once Sullivan was out of the car, he grabbed her, threw her against a nearby truck, and began “humping on” her. She claimed she was afraid that he might rape her or throw her into the street, and so, to defend herself, she pulled out a knife from her pocket and struck him. The jury were instructed on self-defense, and, according to a note they sent to the judge, indicated that they were deadlocked on, among other things, the issue of self-defense.

That the jury were unable to reach a unanimous verdict does not mean that another jury could not agree unanimously to accept either the Commonwealth’s or Daniel’s version of events. And the Commonwealth’s evidence, were it accepted, would be sufficient to prove the crimes charged. See, e.g., Commonwealth v. Hap Lay, 63 Mass.App.Ct. 27, 36 (2005); Commonwealth v. Bartoloni, 2 Mass.App.Ct. 152, 154 (1974). Daniels’s claim that the Commonwealth failed to disprove that she acted in self-defense beyond a reasonable doubt fails because, while the evidence at her trial, viewed most favorably to her, entitled her to a self-defense instruction, the jury were not required to credit her version of the altercation. See Hartfield v. Commonwealth, 443 Mass. 1022, 1022 (2005). The Commonwealth’s evidence was more than sufficient to disprove self-defense and to support convictions of the charged offenses. Retrial is therefore not barred by principles of double jeopardy.

Judgment affirmed.

https://www.universalhub.com/node/29019

 

Notice Requesting Information for Possible Suitability Issue

 

Section 500.800 – Background Check Suitability Standard for Licensure and Registration
(1)Pursuant to M.G.L. c. 94G, § 4(a)(xii), (xiv), and § 21(a)(ii), the Commission may make, in an exercise of its discretion, a suitability determination.
(2)The Commission may also delegate suitability determinations to the Executive Director, who may appoint a Suitability Review Committee (Committee) to advise the Executive Director.
(3)All suitability determinations will be made in accordance with the procedures set forth in 935 CMR 500.800.
(4)Suitability Review Process.

(a)Designated Enforcement staff (staff) shall conduct background checks and gather information and evidence applicable to a subject’s suitability and make a recommendation as to suitability. Staff may make an adverse suitability recommendation on finding information and evidence that would result in a Mandatory Disqualification, Presumptive Negative Suitability Determination or that would support a Negative Suitability Recommendation.
(b)Before making an adverse suitability recommendation, staff shall consult with the Executive Director or the Executive Director’s delegee(s). The Executive Director may dispose of the matter or direct the Committee to institute a review of suitability or take any action consistent with M.G.L. c. 94G.
(c)If the Executive Director institutes a suitability review, the staff shall send the written notice of an adverse suitability recommendation that identifies the Person or entity subject to suitability review, the particular offenses or conduct relied on and whether that the offenses or conduct results in a Mandatory Disqualification or Presumptive Negative Suitability Determination, or supports a Negative Suitability Recommendation, and reasons for that determination.
(d)The notice of an adverse suitability recommendation shall provide an opportunity to cure the suitability issue by removing the subject from its application. To the extent that an applicant removes a subject from an application, the removal must be done in a manner determined by the Commission.
(e)The notice of an adverse suitability recommendation shall provide the subject with the opportunity to request an informal proceeding before the Suitability Review Committee.
(f)A request for an informal proceeding must be submitted in a form and manner determined by the Commission and no later than 14 business days following the effective date of the adverse suitability recommendation. Requests received after 14 business days may be considered at the discretion of the Executive Director or the Committee.
(g)On notification of an adverse suitability recommendation and receipt of an informal proceeding request, the Committee shall initiate a proceeding, make a recommendation and/or take other action(s) after consultation with the Executive Director.
(h)If an applicant or a subject does not make a timely request for an informal proceeding before the Committee, the Executive Director may forward the adverse suitability recommendation to the Committee for a review, make a suitability determination, or take any action consistent with M.G.L. c. 94G.
(5)The Committee shall:

(a)Consider and review whether offense(s) or information resulting in a Mandatory Disqualification or a Presumptive Negative Suitability Determination under 935 CMR 500.801: Table A and 935 CMR 500.802: Tables B through D and 935 CMR 500.903: Table E, as applied to the subject, renders the subject unsuitable for licensure or registration;
(b)Consider and review whether offense(s) or information not otherwise set forth in 935 CMR 500.801: Table A and 935 CMR 500.802: Tables B through D and 935 CMR 500.903: Table E would result in a Negative Suitability Recommendation and renders the subject unsuitable for licensure or registration; and
(c)Subsequent to its review of a suitability matter, make recommendations to the Executive Director, or the Commission, or a Commission Delegee(s).
(6)When reviewing an adverse suitability recommendation by staff that there is an offense resulting in a Mandatory Disqualification, the Commission shall consider credible and reliable information demonstrating that:

(a)The disqualifying event was based on erroneous information or evidence; and
(b)The subject can demonstrate that prior to the informal proceeding, the adverse suitability recommendation can no longer be supported because the error was corrected.
(7)When reviewing an offense resulting in a Presumptive Negative Suitability Determination, the committee shall take into consideration the following factors:

(a)Nature and Specific Circumstances of the Offense or Incident:

1.Time since the offense or incident;
2.Number of offenses or incidents;
3.If criminal, sentence imposed and length, if any, of incarceration;
4.If criminal, sentence imposed and length, if any, of parole or probation; and
5.Relationship of offense or incident to nature of work to be performed.
(b)Mitigating Factors:

1.Age of the subject at the time of the offense or incident; and
2.Whether offenses or incidents were committed in association with dependence on drugs or alcohol from which the subject has since recovered.
(c)Conduct Since Time of the Offense or Incident:

1.If criminal, any relevant evidence of rehabilitation or lack thereof, such as information about compliance with conditions of parole or probation, including orders of no contact with victims and witnesses;
2.The subject’s conduct and experience since the time of the offense including, but not limited to, professional or educational certifications obtained; and
(d)Any other relevant information, including information submitted by the subject to the Committee or requested by the Commission.
(8)The Committee may make a Negative Suitability Determination in the following circumstances:

(a)On the receipt of the staffs Negative Suitability Recommendation that there is credible and reliable information in the five years immediately preceding the application:

1.The applicant’s or Licensee’s prior actions posed or would likely pose a risk to the public health, safety, or welfare if a License or registration is granted or renewed; and
2.The risk posed by the applicant’s or Licensee’s actions relates or would likely relate to the operation of a Marijuana Establishment.
(b)On review of this recommendation, the Committee shall consider whether the staff has carried its burden of demonstrating:

1.The applicant’s or Licensee’s prior actions posed or would likely pose a risk to the public health, safety, or welfare if a License or registration is granted or renewed; and
2.The risk posed by the applicant’s or Licensee’s actions relates or would likely relate to the operation of a Marijuana Establishment.
(9)Where a Marijuana Establishment Agent listed on the application for licensure in accordance with 935 CMR 500.101(1), is found to have no suitability issue under 935 CMR 500.801: Table A, or to have overcome any suitability issue, the agent shall not be subject to a subsequent suitability review under 935 CMR 500.802: Tables B through D and 935 CMR 500.803: Table: E.

(a)Nothing in 935 CMR 500.800(9) relieves the requirement that the applicant or Licensee conduct background checks on its agents and disclose to the Commission’s staff any suitability issue(s) that arise as a result of those checks.
(b)Any subsequent disclosure of background check information for a Marijuana Establishment Agent required to be listed and evaluated pursuant to 935 CMR 500.101(1), will be assessed pursuant to 935 CMR 500.801: Table A or on other grounds for a Negative Suitability Determination only.
(c)Nothing in 935 CMR 500.800(9) precludes the Commission from initiating a suitability review based on background information received after the Commission’s initial suitability review.
(10)The Executive Director in consultation with the Committee may determine that a subject’s suitability warrants the Commission’s consideration. The Executive Director may also remand a matter to staff for further investigation prior to making a determination. The Commission may consider the determination when acting on the application or renewal.
(1) In accordance with M.G.L. c. 94G, § 5, the Commission is prohibited from licensing a Marijuana Establishment where an individual who is a Person Having Direct or Indirect Control has been convicted of a felony or offense in an Other Jurisdiction that would be a felony in the Commonwealth, except a prior conviction solely for a Marijuana offense or solely for a violation of M.G.L. c. 94C, § 34, unless the offense involved distribution of a controlled substance, including Marijuana, to a minor.
(2) For purposes of determining suitability based on background checks in accordance with 935CMR 500.101(1)(b):

(a) All conditions, offenses, and violations are construed to include Massachusetts law or like or similar law(s) of Other Jurisdictions.
(b) All criminal disqualifying conditions, offenses, and violations include the crimes of attempt, accessory, conspiracy, and solicitation.
(c) Juvenile dispositions shall not be considered as a factor for determining suitability.
(d) Where applicable, all look back periods for criminal conditions, offenses, and violations included in 935 CMR 500.801: Table A commence on the date of disposition; provided, however, that if disposition results in incarceration in any institution, the look back period shall commence on release from incarceration.
(e) Unless otherwise specified in 935 CMR 500.801: Table A, a criminal condition, offense or violation shall include both convictions, which include guilty pleas and pleas of nolo contendere, and dispositions resulting in continuances without a finding or other disposition constituting an admission to sufficient facts, but shall exclude other non-conviction dispositions.
(3) Licensees and Registered Agents shall remain suitable at all times a License or registration remains in effect. An individual subject to this section shall notify the Commission in writing of any charge or conviction of an offense that would result in a presumptive negative suitability determination or mandatory disqualification under 935 CMR 500.801: Table A, 935 CMR 500.802: Tables A through D and 935 CMR 500.803: Table E within ten days of such individual’s arrest or summons, and within ten days of the disposition on the merits of the underlying charge. Failure to make proper notification to the Commission may be grounds for disciplinary action. If the Commission lawfully finds a disqualifying event and the individual asserts that the record was sealed, the Commission may require the individual to provide proof from a court evidencing the sealing of the case.

Table A: Marijuana Establishment Licensees. Shall apply solely to Persons or Entities Having Direct or Indirect Control in accordance with 935 CMR 500.101(1) and 935 CMR 500.103(4).

Time Period

Precipitating Issue

Result

Present (during time from start of application process through action on application or renewal)

Open/Unresolved Criminal Proceedings:

Any outstanding or unresolved criminal proceeding, the disposition of which may result in a felony conviction under the laws of the Commonwealth or Other Jurisdictions, but excluding any criminal proceeding based solely on a Marijuana-related offense or a violation of M.G.L. c. 94C, § 32E(a) or § 34.

Mandatory Disqualification

Present

Outstanding or Unresolved Criminal Warrants

Presumptive Negative Suitability Determination

Present

Submission of Untruthful Information to the Commission Including, but Not Limited to:

Submission of information in connection with a License application, waiver request or other Commission action that is deceptive, misleading, false or fraudulent, or that tends to deceive or create a misleading impression, whether directly, or by omission or ambiguity; or

making statements during or in connection with a Commission inspection or investigation that are deceptive, misleading, false or fraudulent, or that tend to deceive or create a misleading impression, whether directly, or by omission or ambiguity.

Presumptive Negative Suitability Determination

Present

Open/Unresolved Marijuana License or Registration Violations (Massachusetts or Other Jurisdictions)

Presumptive Negative Suitability Determination

Present

Open Professional or Occupational License Cases

Presumptive Negative Suitability Determination

Indefinite

Sex Offender Registration:

Required to register as a sex offender in Massachusetts or an Other Jurisdiction.

Mandatory Disqualification

Indefinite

Felony Convictions in Massachusetts or an Other Jurisdiction Including, but Not Limited to:

Felony weapons violation involving narcotics;

Felony involving violence against a person;

Felony involving theft or fraud; and

Felony drug, excluding conviction solely for a Marijuana-related offense or solely for a violation of M.G.L. c. 94C, § 34.

Mandatory Disqualification

Indefinite

Conviction or Continuance without a Finding (CWOF) for Any Distribution of a Controlled Substance to a Minor

Mandatory Disqualification

Indefinite

Non-felony Weapons Violations, Including Firearms, Involving Narcotics

Presumptive Negative Suitability Determination

Indefinite

Firearms-related Crimes

Presumptive Negative Suitability Determination

Indefinite

Multiple Crimes of Operating under the Influence

Two offenses within a ten-year period; or

Three or more offenses within any period of time.

Presumptive Negative Suitability Determination

Preceding Five Years

Multiple Crimes

During the five years immediately preceding the application for licensure that separately may not result in a negative determination of suitability, but may, if taken together and tending to show a pattern of harmful behavior, result in a negative determination of suitability depending on the type and severity of the crimes.

Presumptive Negative Suitability Determination

Preceding Five Years

Crimes of Domestic Violence Including, but Not Limited to:

Violation of an abuse prevention restraining order under M.G.L. c. 209A

Violation of a harassment prevention order under M.G.L. c. 258E

Presumptive Negative Suitability Determination

Preceding Five Years

Marijuana License or Registration Violations (Massachusetts or Other Jurisdictions)

The applicant or a Licensee held a License that was revoked, a renewal application that was denied, or a similar action taken with relation to their Marijuana business in Massachusetts or Other Jurisdiction, whether by administrative action or stipulated agreement.

Mandatory Disqualification

More than Five and less than Ten Years

Marijuana License or Registration Violations (Massachusetts or Other Jurisdictions)

The applicant or a Licensee held a License that was revoked, a renewal application that was denied, or a similar action taken with relation to their Marijuana business in Massachusetts or Other Jurisdiction, whether by administrative action or stipulated agreement.

Presumptive Negative Suitability Determination

Preceding Five Years

The applicant’s or Licensee’s prior actions posed or would likely pose a risk to the public health, safety, or welfare; and

the risk posed by the applicant’s or Licensee’s actions relates or would likely relate to the operation of a Marijuana Establishment.

May make a Negative Suitability Determination in accordance with 935 CMR 500.800(8)

935 CMR 500.800 & 935 CMR 500.801

Adopted by Mass Register Issue 1361, eff. 3/23/2018.

Amended by Mass Register Issue 1403, eff. 11/1/2019.

 

Submit a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.