P Verifiedcomplaint

EXHIBIT 1
U.S. Department of Justice

Drug Enforcement Administration
8701 Morrissette Drive
Springfield, Virginia 22152
www.dea.gov September 15, 2021
Donna C. Yeatman, R.Ph.

Executive Secretary
Alabama Board of Pharmacy
111 Village Street
Birmingham, Alabama 35242
Dear Dr. Yeatman:
This is in response to your letter dated August 19, 2021, in which you request the control
status of delta-8-tetrahydrocannabinol ( 8-THC) under the Controlled Substances Act (CSA).
The Drug Enforcement Administration (DEA) reviewed the CSA and its implementing
regulations with regard to the control status of this substance.
8
-THC is a tetrahydrocannabinol substance contained in the plant Cannabis sativa L. and
also can be produced synthetically from non-cannabis materials. The CSA classifies
tetrahydrocannabinols as controlled in schedule I. 21 U.S.C. 812, Schedule I(c)(17); 21 CFR
§ 1308.11(d)(31). Subject to limited exceptions, for the purposes of the CSA, the term
“tetrahydrocannabinols” means those “naturally contained in a plant of the genus Cannabis
(cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis
plant and/or synthetic substances, derivatives, and their isomers with similar chemical structure
and pharmacological activity to those substances contained in the plant.” 21 CFR
§ 1308.11(d)(31). Thus, 8-THC synthetically produced from non-cannabis materials is
controlled under the CSA as a “tetrahydrocannabinol.”
The CSA, however, excludes from control “tetrahydrocannabinols in hemp (as defined under
section 1639o of Title 7).” Hemp, in turn, is defined as “the plant Cannabis sativa L. and any
part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol
[( 9-THC)] concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C.
1639o(1).
Accordingly, cannabinoids extracted from the cannabis plant that have a 9-THC
concentration of not more than 0.3 percent on a dry weight basis meet the definition of “hemp”
and thus are not controlled under the CSA. Conversely, naturally derived cannabinoids having a
9
-THC concentration more than 0.3 percent on a dry weight basis is controlled in schedule I
under the CSA as tetrahydrocannabinols.1
1
The Agricultural Improvement Act of 2018 (AIA), Pub. L. 115-334, § 12619, amended the CSA to remove
“tetrahydrocannabinols in hemp” from control. See 21 U.S.C. § 812, Schedule I(c)(17). As noted, however,
“hemp” is defined to “mean the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and
all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a
delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. 1639o
(emphasis added). Thus, only tetrahydrocannabinol in or derived from the cannabis plant—not synthetic
tetrahydrocannabinol—is subject to being excluded from control as a “tetrahydrocannabinol[] in hemp.”
Donna C. Yeatman, R.Ph 2
If you have any further questions, please contact the Drug and Chemical Evaluation Section at
[email protected] or (571) 362-3249.
Sincerely,
Terrence L. Boos, Ph.D., Chief

Drug & Chemical Evaluation Section
Diversion Control Division
cc: Birmingham Office

EXHIBIT 2
IN THE SUPERIOR COURT OF MADISON COUNTY
STATE OF GEORGIA EFILED IN OFFICE
CLERK OF SUPERIOR COURT
STATE OF GEORGIA, MADISON COUNTY, GEORGIA
21SW00044
v. 1/12/2022
WARRANT NOS . 3:00PM
21SW00040, 21SW00041,
MOHAMMAD SHAFIQ, MELANIE 21SW00042, 21SW00043,Katie Cross, Clerk
Madison County, Georgia
DOVE, KWIKCHECK FOOD MART 21SW00044
(JOHN BETTS), DANIELSVILLE
GROCERY (AYSHA RANI), JUDGE WASSERMAN
ATFOODMART (ABDUL TANHA),
and QUICK PANTRY (DAVE ASHAY),
DEFENDANTS.
ORDER GRANTING RETURN OF PROPERTY
This matter is before the Court on the above-named Defendants’ Motions for Return
of Property filed on November 22, 2021.1 After conducting a hearing on these motions on
January 10, 2022, this Court finds, for the reasons stated on the record, that the gummies in
question are not a food product and do not contain a Delta-9 THC concentration over the
legal limit of 0.3%. Accordingly, the seized products are legal. Therefore, there was no
probable cause of the search warrants of Defendant-Stores. The Court further finds that there
was no probable cause to search the home of Defendants Dove and Shafiq.
1
Defendants Mohammad Shafiq and Melanie Dove together filed their Motion for Return
of Property on November 22, 2021. The same day, Defendant-Stores KwikCheck Food Mart,
Danielsville Grocery, ATFoodMart, and Quick Pantry—owned by John Betts, Aysha Rani,
Abdul Tanha, and Dave Ashay, respectively—filed their Motion for Return of Property.
Page 1 of 2
For the foregoing reasons, Defendants’ Motions for Return of Property are hereby
GRANTED. It is further ORDERED that all seized products should be returned immediately
pursuant to O.C.G.A. § 17-5-30.
The Court reserves the right to issue a more detailed opinion/order should an appeal
be taken from this ruling.
IT IS SO ORDERED this 12th day of January , 2022.
/s/
Honorable Harvey Wasserman
Madison County Superior Court
Page 2 of 2
EXHIBIT 3
Fulton County Superior Court
***EFILED***QW
Date: 3/18/2022 1:01 PM
Cathelene Robinson, Clerk
EXHIBIT 4
Fulton County Superior Court
***EFILED***QW
Date: 4/15/2022 3:14 PM
Cathelene Robinson, Clerk
EXHIBIT 12
E-FILED IN OFFICE - CT
CLERK OF SUPERIOR COURT
GWINNETT COUNTY, GEORGIA
22-B-01152-3Q
6/10/2022 5:30 PM
TIANA P. GARNER, CLERK
IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA
STATE OF GEORGIA, : Criminal No: 22-B-01152-3Q

:
vs.
:
AZIM AMIN JIWANI :
ORDER GRANTING DEFENDANT’S MOTION FOR RETURN OF PROPERTY
On April 27, 2022, this Court heard evidence and argument on Defendant’s Motion
for Return of Property. At the hearing the State was represented by Deputy Chief Assistant
District Attorney Brandon Delfunt and the Defendant was represented by his counsel Devin
Rafus, Esq. The Defendant was also present for the hearing. After consideration of the
evidence presented and arguments of both parties, the Court hereby GRANTS the
Defendant’s Motion for Return of Property.
Findings of Fact
On February 3, 2022, the Defendant was arrested and charged with one count of
Possession of a Schedule I Controlled Substance (Tetrahydrocannabinol) (O.C.G.A. § 16-
13-30) and Possession and Distribution of Delta-9 Low THC Oil Without any Permit
(O.C.G.A. § 16-12-19). On the same date Officer Brendan Branning (“Branning”) of the
Lawrenceville Police Department and the Gwinnett Metro Task Force (GMTF) applied for
and was granted a search warrant to search the Defendant’s business, Hot Box, located at
195 Gwinnett Drive in the City of Lawrenceville, Gwinnett County, Georgia. GMTF seized
Delta-8 and Delta-10 products from the Defendant’s business pursuant to the search
warrant. The Defendant filed a Motion for Return of Property on March 21, 2022, alleging
the legality of Delta-8 and Delta-10 THC, the lack of probable cause for the search warrant,
and contended that the search warrant was overbroad. Specifically, the Defendant argues
that Delta-8, Delta-10 and other cannabinoids are lawful, so long as their Delta-9 THC
content is 0.3 percent or less.
This Court held an evidentiary hearing on April 27, 2022. In order to proceed on
the first two issues of the motion, Defendant withdrew the overbroad warrant
claim at them motion hearing because Branning was not present or available to
1
testify. Defendant reserved the issue for the future, if needed. At the hearing, the
State presented a copy of search warrant number 22X00113 which was used to effectuate
the search of defendant’s business. The Defendant presented testimony of Dr. John Michael
Underwood as an expert in pharmacology and the Food and Drug Administration
(“FDA”) approval procedures.
At the hearing the State conceded that cannabinoids such as Delta-8 and Delta-10
are legal as long as they are in a non-edible form; however, the State contended that those
same cannabinoids as they appear in “food products” are illegal. Because the State has
conceded that the seized non-edible Delta-8 and Delta-10 products are legal, the
defendant’s motion is GRANTED as it relates to those products.
This Court is required to consider whether the edible or “food products” are legal
under Georgia law.
Conclusions of Law
A party aggrieved by an unlawful search and seizure may move the court (pre-trial
or pre-indictment) for the return of the property – the possession of which is not unlawful.
O.C.G.A. § 17-5-30(a); see Top Tobacco v. Star Importers, 2020 WL 4730985 (2020) (“If
a party feels law enforcement wrongfully seized its property, the Georgia Code provides a
specific remedy: a party can move the court for a return of property.”).
I. Possession and Sale of Delta-8 THC is legal
Hemp and hemp products are excluded from being classified as Marijuana.
O.C.G.A. § 16-13-21(16). In 2019 the Georgia Legislature enacted the Georgia Hemp
Farming Act (O.C.G.A. § 2-23-3 et. al.). This act, which tracts the Federal law, provides
for the cultivation, harvesting, and promulgation of hemp and hemp related products.
O.C.G.A. § 2-23-3 defines hemp as the “Cannabis sativa L. plant and any part of such
plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids,
salts, and salts of isomers, whether growing or not, with the federally defined THC level
for hemp or a lower level.” The THC level expressed in the statute is 0.3 percent. O.C.G.A.
§ 16-13-25(P) categorizes THC as a schedule I controlled substance but excludes THC as
it is found in hemp and hemp products as they are defined in O.C.G.A. § 2-23-3.
2
The parties both agree, and Dr. Underwood testified, that Delta-8 and Delta 10
cannabinoids are legal so long as the product does not have more than 0.3 percent of Delta-
9 THC in it and is not in the form of food. Mot. Hr’g Tr. at 62.
II. Delta-8 Gummies are not a Food Product.
The Defendant contends that edible products such as gummies, which are infused
with a cannabinoid like Delta-8 and Delta-10, are not “food product[s]” as contemplated
by the Georgia Hemp Farming Act. Hemp products are defined as “all products with the
federally defined THC level for hemp 1 derived from, or made by, processing hemp plants
or plant parts that are prepared in a form available for legal commercial sale, but not
including food products infused with THC unless approved by the United States Food and
Drug Administration.” O.C.G.A. § 2-23-3(6) (emphasis added). Dr. Underwood, as well
as the Food and Drug Administration (FDA) printout submitted by the State, show that the
FDA has never approved any Delta-8 or Delta-10 food product, nor even considered any.
The Georgia Legislature did not define what food products are, but the FDA did
define food. Food means “(1) articles used for food or drink for man or other animals, (2)
chewing gum, and (3) articles used for components of any such article.” 21 U.S.C.A. §
321(f). On the contrary, the FDA defines a drug as “. . . articles (other than food) intended
to affect the structure or any function of the body of man or other animals . . ..” 21
U.S.C.A. § 321(g)(1)(C). The FDA distinguishes between food and drugs. The question in
the case of Delta-8 gummies is whether they are classified as a food—and therefore a food
product—or as a drug. Because there is no Georgia authority giving guidance and because
this issue hinges on FDA definitions, federal case law is persuasive in determining this
issue.
The Defendant presented the case of United States v. Ten Cartons, 888 F.Supp. 381
(E.D. N.Y. 1995), which has guiding language to lead to the conclusion that Delta-8
gummies are not a food product. The Court based its ruling on expert testimony that
supported the common-sense definition of food. Food entails two elements: (1) nutrient
intake and (2) ingestion into the gastrointestinal tract of those nutrients. Id at 387. The
1Federally defined THC level for hemp means a Delta-9 THC concentration of not more than 0.3
percent on a dry weight basis, or as defined in 7 U.S.C. Section 1639o, whichever is greater.
O.C.G.A. § 2-23-3(3).
3
meaning of the term “food” has been construed to an “everyday meaning” and a particular
article’s “common usage” as food. Id. at 391. Food is also defined in terms of its function,
such as carrying nutritional value. Id. An expert in the Ten Cartons case testified that the
“generally accepted definition of food” is “the nutrients . . . we usually eat [that] are taken
into the gastrointestinal tract.” Id. at 408.
At the motions hearing, the testimony of Dr. Underwood was similar to the expert
testimony in Ten Cartons. Dr. Underwood testified that Delta-8 gummies are more akin to
a drug than a food product because the gelatin is simply a vehicle for delivering the THC
drug. Mot. Hr’g Tr. at 30-31. Dr. Underwood explained that Delta-8 gummies have no
nutritional value. Id. at 31.
Defendant conceded that the gummies are ingested into the gastrointestinal tract
but argues that the common-sense definition of food would not include gummies that have
zero nutritional value and are only being used as a vehicle to put Delta-8 THC into one’s
body. The State did not present any testimony to rebut Dr. Underwood.
Based upon the foregoing, the Court finds that the gummies in question do not fall
within the definition of a food product and further, that they do not contain a Delta-9 THC
concentration over the legal limit of 0.3%. Accordingly, the seized products are legal under
both State and Federal law.
III. The Affidavit and Application for the Search Warrant Lacked Probable Cause.
If an affiant knowingly and intentionally, or with reckless disregard for the truth,
makes a false statement in the affidavit, then the affidavit’s false material must be set aside.
Taylor v. State, 337 Ga. App. 486, 488 (2016) (citing Franks v. Delaware, 438 U.S. 154
(1978)). If the affidavit’s remaining content is insufficient to establish probable cause
after the false information is set aside, the search warrant must be voided, and the fruits of
the search must be excluded and returned. State v. Hall, 276 Ga. App. 769, 772 (2005).
In this case, the affidavit was based upon the erroneous belief that “Delta-8 and
Delta-10 are not classified as ‘low THC’ under Georgia law and are illegal to sell or
possess.” Delta-9 oil is illegal unless the concentration is below 0.3 percent. If the
concentration of Delta-9 THC is below 0.3 percent, then it is classified as legal hemp.
Delta-8 and Delta-10 oil (hemp derivatives) are legal to possess.
4
The Affiant in this case, Branning, did not provide probable cause that Delta-8 is
illegal marijuana. During the hearing, there was no testimony from Branning or any witness
on behalf of the State, but the Court did hear testimony from defense witness, Dr.
Underwood. Based on Dr. Underwood’s testimony, hemp derivatives such as Delta-8,
Delta-10, and CBD are excluded from the definition of marijuana so long as it does not
contain a Delta-9 THC concentration of more than 0.3 percent.
Because Branning based the affidavit on the erroneous belief that “Delta-8 and
Delta-10 are not classified as ‘low THC’ under Georgia law and are illegal to sell or
possess,” there was no probable cause for the warrant to issue or probable cause to believe
that a crime had occurred.
Conclusion
Wherefore, because the search warrant lacked probable cause for the reasons above,
the seizure of Defendant’s property (merchandise, money, and records) was unlawful and
must be returned instanter.
SO ORDERED, this the _____

10th day of June 2022.
__________________________
Honorable Deborah R. Fluker
Judge, Gwinnett Superior Court
Copies to:
Brandon Delfunt, Deputy Chief Assistant District Attorney
Devin Rafus, Esq., Defendant’s Attorney
Megan Maddox, Legal Admin. DA’s Office
5
EXHIBIT 6
No. S
In the
Supreme Court of Georgia
State of Georgia and District Attorney Austin-Gaston,
Applicants,
v.
SASS Group, LLC, and Great Vape, LLC,

Respondents.
On Application for Interlocutory Appeal from

the Fulton County Superior Court
Superior Court Case No. 2022CV362007
APPLICATION FOR INTERLOCUTORY APPEAL
Christopher M. Carr 112505

Attorney General
Beth Burton 027500
Deputy Attorney General
Tina M. Piper 142469
Sr. Assistant Attorney General
Cristina M. Correia 188620
Sr. Assistant Attorney General
Office of the Attorney General
40 Capitol Square, SW
Atlanta, Georgia 30334
(404) 458-3535
[email protected]
Counsel for Applicants
TABLE OF CONTENTS
Page
Table of Authorities .................................................................................. iii
Introduction ................................................................................................ 1
Jurisdiction................................................................................................. 1
Statement ................................................................................................... 2
A. Factual Background ....................................................................... 2
B. Proceedings Below. ......................................................................... 3
Reasons for Granting the Application ...................................................... 4
I. The trial court’s ruling on sovereign immunity meets all of the

requirements for interlocutory review. ....................................... 7
A. Sovereign immunity is dispositive by nature. ........................ 7
B. The trial court erred by ruling that Plaintiffs could maintain

a suit against both the State and the District Attorney. ....... 7
1. The word “action” in the waiver of immunity means case

or lawsuit. ........................................................................... 9
2. Plaintiffs may not sue the State of Georgia for

declaratory and injunctive relief while simultaneously
seeking preliminary relief against a state official for the
same conduct. ................................................................... 11
C. There is an acute need for precedent on the new

constitutional waiver. ............................................................ 12
Conclusion ................................................................................................ 12
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Alexander v. Dean,
29 Ga. App. 722 (1923) ....................................................................... 10
Colon v. Fulton County,

294 Ga. 93 (2013) .......................................................................... 10, 12
Deal v. Coleman,
294 Ga. 170 (2013) .............................................................................. 10
Doe #102 v. Dep’t of Corr.,

268 Ga. 582 (1997) .................................................................................9
Love v. Fulton County Bd. Of Tax Assessors,

311 Ga. 682 (2021) .................................................................................7
McConnell v. Dep’t of Labor,

302 Ga. 18 (2017) ...................................................................................7
Rivera v. Washington,
298 Ga. 770 (2016) .................................................................................7
Sawnee Elec. Mbrshp. Corp. v. Ga. Dep’t of Revenue,

279 Ga. 22 (2005) ...................................................................................9
Slakman v. Continental Cas. Co.,

277 Ga. 189 (2003) .............................................................................. 10
Statutes
7 U.S.C. Section 1639o................................................................................2
O.C.G.A. § 2- 23-3(3) ...................................................................................2
O.C.G.A. § 2- 23-3(6) .............................................................................. 2, 8
O.C.G.A. § 5-6-34(a)(4) ................................................................................6
O.C.G.A. § 9-2-1(1) ................................................................................... 10
iii
O.C.G.A. § 9-2-5(a) ................................................................................... 11
O.C.G.A. § 9-2-61 ..................................................................................... 11
O.C.G.A. § 9-10-2 ........................................................................................3
O.C.G.A. § 16-13-25(3)(P) ...................................................................... 2, 8
Other Authorities
Ga. Const. Art. I, § II, Para. V(b). ..............................................................8
Ga. Const. Art I, § II, Para. V ....................................................... 1, 2, 5, 8
Ga. Const. Art. I, § II, Para. V(b)(1) .......................................... 5, 6, 11, 12
Ga. Const. Art. I, § II, Para. V(b)(2) ................................................. passim
Ga. Const. Art. VI, § VI, Para. II ...............................................................2
S. Ct. R. 31...................................................................................................5
iv
INTRODUCTION
This appeal presents an issue of first impression regarding
interpretation of a recent constitutional amendment providing a limited

waiver of sovereign immunity. See Ga. Const. Art I, § II, Para. V.
Contrary to the express terms of the new limited waiver of immunity,
the lower court permitted Plaintiffs to pursue a lawsuit filed against

both the State of Georgia and a state official sued in her individual
capacity. The express terms of the Georgia Constitution provide that
actions filed pursuant to this waiver “shall be brought exclusively

against the state and in the name of the State of Georgia,” and further
provide that “[a]ctions . . . naming as a defendant any individual, officer
or entity other than as expressly authorized under this Paragraph shall

be dismissed.” Ga. Const. Art. I, § II, Para. V(b)(2). The lower court
erred in its reading of these limitations on the state’s waiver of
sovereign immunity. These errors are dispositive of the entire case

since the limited waiver of immunity mandates that this action be
dismissed. The lack of any appellate decisions interpreting the state’s
new constitutional waiver of immunity weighs strongly in favor of this
court granting this interlocutory appeal.
JURISDICTION
The order from which this appeal is sought was entered on April
13, 2022. The trial court granted a certificate of immediate review on
April 14, 2022. This issue in this case involves the first-time
1
construction of the constitutional waiver of immunity in Ga. Const. Art
I, § II, Para. V. This Court has original jurisdiction in “cases involving
the construction of . . . the Constitution of the State of Georgia.” Ga.
Const. Art. VI, § VI, Para. II.
STATEMENT
A. Factual Background
Plaintiffs SASS Group, LLC and Great Vape, LLC are businesses
selling Delta-8-THC and Delta-10-THC products, including food
products infused with THC. In January, 2022, the Gwinnett County
District Attorney issued a press release announcing that her office
would pursue the prosecution of “individuals and businesses who
engage in the possession, sale or distribution of . . . schedule 1

controlled substances.” Complaint, Exhibit 4. The press release
described Delta-8-THC and Delta-10-THC as controlled substances. Id.
The parties agree that non-food products containing Delta-8-THC or

Delta-10-THC are not prohibited as long as the product contains less
than a “delta-9-THC concentration of not more than 0.3 percent on a
dry weight basis, or as defined in 7 U.S.C. Section 1639o, whichever is
greater.” See O.C.G.A. § 16-13-25(3)(P), § 2-23-3(3) and § 2-23-3(6).
The parties disagree as to whether food products infused with THC are
prohibited under state law. See O.C.G.A. § 16-13-25(3)(P) and
§ 2-23-3(6).
2
B. Proceedings Below.
Plaintiffs filed this suit on March 14, 2022 to prevent District
Attorney Austin-Gaston from prosecuting them for the possession, sale,
and distribution of a controlled substance. They named both the

District Attorney and the State of Georgia as defendants. Plaintiffs
sought an immediate temporary injunction. On March 16, 2022, and
before service of the complaint, the court scheduled a hearing on the

temporary restraining order. Defendants, through counsel, objected to
any hearing prior to five days’ notice to the Attorney General. See
O.C.G.A. § 9-10-2 and Defendants’ Response to Rule Nisi. On March

18, 2022, the court held the hearing and ultimately issued a temporary
restraining order. On March 21, 2022, Defendants sought to have the
TRO set aside as void, given the lack of statutory five (5) days’ notice;
the court never ruled on Defendants’ motion.
Defendants subsequently filed a motion to dismiss, and asserted
sovereign immunity. Defendants argued that the constitutional waiver

of immunity required Plaintiffs to bring their lawsuit exclusively
against the State of Georgia. See Motion to Dismiss 1 and Defendants’
Response to Plaintiffs’ Motion for Interlocutory Injunction at pp. 4-6.
In response, Plaintiffs argued that the word “action” in the
constitutional waiver of immunity means a “claim” or “cause of action”
1 Defendants’ Motion to Dismiss was filed after their Response to

Plaintiffs’ Motion for Interlocutory Injunction and adopted and
incorporated by reference the sovereign immunity arguments made in
the earlier brief.
3
and not case. Plaintiffs’ Response Brief at 6-9. A hearing on the
motion to dismiss was held on April 12, 2022. At the conclusion of the
hearing, the trial court denied the motion to dismiss, and a written
order denying the motion was entered the next day. The trial court
explained at the conclusion of the hearing that it was adopting

Plaintiffs’ view of the word “act” in the constitutional waiver of
immunity as requiring only separate “causes of action” to be filed
against the State and the district attorney. 2 Transcript at p. 25 lns. 1-
6. The court signed a certificate of immediate review on the denial of
the motion to dismiss. 3
REASONS FOR GRANTING THE APPLICATION

Interlocutory review is appropriate when (1) the issue to be
decided is dispositive of the case; (2) the order appears erroneous and
2 On April 15, 2022, the court entered an interlocutory injunction that

enjoined the Gwinnett County District Attorney “from directing her
office or agents to initiate or continue any criminal enforcement action
or civil asset forfeiture proceeding against any individual or business
based on their alleged possession, sale, or distribution of products
containing hemp-derived cannabinoids, including but not limited to
Delta-8-THC and Delta-10-THC.”
3 An entry for a certificate of immediate review was initially included
on the docket on April 14, 2022, but the order attached was the order
denying the motion to dismiss. A second entry for a certificate of
immediate review was entered on the docket on April 18, 2022,
however, the order entered failed to include a copy of the order
denying the motion to dismiss as an attachment. An amended
certificate of immediate review, which included a copy of the order
denying the motion to dismiss, was entered on the docket on April 20,
2022.
4
will probably cause a substantial error at trial or will adversely affect
the rights of the appealing party; or (3) the establishment of precedent

is desirable. S. Ct. R. 31. This case meets all three requirements.
The case presents a dispositive issue of first impression regarding
the interpretation of the recent constitutional waiver of immunity in

Ga. Const. Art. I, § II, Para. V. The question of whether Plaintiffs
seeking to rely on this limited waiver of immunity must bring their
lawsuit exclusively against the State of Georgia, has not been
addressed by this Court.
The new waiver of immunity provides that “[a]ctions filed
pursuant to this [waiver] . . . shall be brought exclusively against the

state and in the name of the State of Georgia.” Ga. Const. Art. I, § II,
Para. V(b)(2). The waiver provides further that “[a]ctions . . . naming
as a defendant any individual, officer, or entity other than as expressly

authorized under this Paragraph shall be dismissed.” Id. (emphasis
added).
The new waiver of immunity also provides that a court “may, only
after awarding declaratory relief, enjoin such acts to enforce its
judgment.” Ga. Const. Art. I, § II, Para. V(b)(1) (emphasis added).
Despite these express limitations on the waiver of sovereign immunity,

the trial court refused to dismiss a complaint filed against both the
State of Georgia and an individual state official and seeking an
interlocutory injunction. The lower court interpreted the word “action”
in the waiver of immunity to mean only a claim or cause of action
5
rather than a case or lawsuit. The lower court’s interpretation results
in an expansive view of the new waiver of immunity. The court

permitted Plaintiffs to file one lawsuit against the state and a state
official even where the waiver of immunity required the “action” to be
filed exclusively against the state and required the dismissal of any
action “naming as a defendant any individual, officer, or entity other
than as expressly authorized.” See Ga. Const. Art. I, § II, Para. V(b)(2).
The lower court compounded the error by issuing preliminary
injunctive relief against a state official, sued individually, in the same
action and about the same conduct as formed the basis of the claim
against the state. In issuing injunctive relief the lower court

disregarded the waiver of immunity’s limitation on the availability of
injunctive relief to after an award of declaratory relief. See Ga. Const.
Art. I, § II, Para. V(b)(1) (providing that injunctive relief against the
state may be entered only after an award of declaratory relief).
Defendants will be filing a direct appeal of the trial court’s grant of the
interlocutory injunction pursuant to O.C.G.A. § 5-6-34(a)(4). The
sovereign immunity issues in this appeal will also be part of that direct
appeal.
Litigants and the lower courts need instruction from this Court on
the parameters of this new constitutional waiver of immunity. Without
any direction from this Court the lower courts will inevitably interpret
this constitutional waiver in different ways which will result in
confusion for litigants.
6
I. The trial court’s ruling on sovereign immunity meets all of
the requirements for interlocutory review.
A. Sovereign immunity is dispositive by nature.
Sovereign immunity is a threshold jurisdictional issue.
McConnell v. Dep’t of Labor, 302 Ga. 18, 18–19 (2017). This Court has
explained that if sovereign immunity applies, a court lacks jurisdiction
over the case and thus lacks authority to decide the merits of a barred
claim. Love v. Fulton County Bd. Of Tax Assessors, 311 Ga. 682, 698 n.
5 (2021). The denial of sovereign immunity is therefore a classic
ground for interlocutory appeal because where the immunity applies it
is dispositive of all claims. See Rivera v. Washington, 298 Ga. 770, 776
(2016) (explaining that the “denial of a motion to dismiss based upon
any claim of immunity, . . . [is properly reviewed pursuant] to the
statutory scheme for appellate review of interlocutory orders.”)
B. The trial court erred by ruling that Plaintiffs could

maintain a suit against both the State and the District
Attorney.
Plaintiffs sued the State of Georgia and the Gwinnett County
District Attorney, in her individual capacity, seeking to enjoin the

district attorney, and ultimately the State of Georgia, from prosecuting
Plaintiffs for the possession, sale, or distribution of food products
7
containing Delta-8-THC and/or Delta-10-THC. 4 Plaintiffs asserted a
waiver of sovereign immunity pursuant to Ga. Const. Art. I, § II, Para.

V. This limited waiver of immunity provides in part that:
(1) Sovereign immunity is hereby waived for actions in the

superior court seeking declaratory relief from acts of the state
or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer
or employee thereof . . . outside the scope of lawful authority
or in violation of the laws or the Constitution of this state or
the Constitution of the United States. Sovereign immunity is
further waived so that a court awarding declaratory relief
pursuant to this Paragraph may, only after awarding
declaratory relief, enjoin such acts to enforce its judgment.
Such waiver of sovereign immunity under this Paragraph
shall apply to past, current, and prospective acts which occur
on or after January 1, 2021.
(2) Actions filed pursuant to this Paragraph against this state
or any agency, authority, branch, board, bureau, commission,
department, office, or public corporation of this state or officer
or employee thereof shall be brought exclusively against the
state and in the name of the State of Georgia. . . . Actions
filed pursuant to this Paragraph naming as a defendant any
individual, officer, or entity other than as expressly
authorized under this Paragraph shall be dismissed.
Ga. Const. Art. I, § II, Para. V(b) (emphasis added). Because Plaintiffs
sued both the State of Georgia and an individual state official, the
lower court was required to dismiss Plaintiffs’ lawsuit. Id. Instead, the
4 While the complaint addressed both food and non-food products, the
parties agree that non-food products that contain less than the
federally defined THC level for hemp, are not prohibited. See
O.C.G.A. § 16-13-25(3)(P) and O.C.G.A. § 2- 23-3(6).
8
trial court denied the state’s motion to dismiss and subsequently
entered an order granting injunctive relief against the district attorney.
1. The word “action” in the waiver of immunity

means case or lawsuit.
The superior court interpreted the word “action” in the waiver of
sovereign immunity as expansively as possible, holding that “action”
meant “cause of action” rather than case or lawsuit. Transcript at 25
lns 1-6. Reading “action” to mean a cause of action expands the waiver
of immunity to include lawsuits where the state is sued and any
number of state officials are also sued, albeit in separate counts of the
same complaint. This court has repeatedly held that waivers of

sovereign immunity should be narrowly construed. Sawnee Elec.
Mbrshp. Corp. v. Ga. Dep’t of Revenue, 279 Ga. 22, 23 (2005) (waiver of
sovereign immunity to be strictly construed); Doe #102 v. Dep’t of Corr.,

268 Ga. 582 (1997) (waiver of immunity narrowly construed). Here, the
superior court impermissibly expanded the types of cases where the
state waives its immunity.

Interpreting “action” as cause of action rather than lawsuit,
permits lawsuits filed against the state and any number of state
officials. This broad reading by the lower court rendered the waiver’s
instruction that “[a]ctions filed pursuant [to this waiver] . . . shall be
brought exclusively against the state and in the name of the State of
Georgia” meaningless. Ga. Const. Art. I, § II, Para. V(b)(2) (emphasis

added). This Court has instructed that “[b]ecause the General
9
EXHIBIT 7
EXHIBIT 8
EXHIBIT 9
EXHIBIT 10
11/8/2021 10:28 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-21-006174 D-1-GN-21-00617 4
Sandra Henriquez
SKY MARKETING CORP., DBA § IN THE DISTRICT COURT

HOMETOWN HERO, CREATE A CIG §
TEMPLE, LLC, DARRELL SURIFF, and §
DAVID WALDEN §
Plaintiffs, §
~- §
§ 126™ JUDICIAL DISTRICT
TEXAS DEPARTMENT OF §
STATE HEALTH SERVICES, and §
JOHN HELLERSTEDT, in his official §
capacity as Commissioner of the Texas §
DSH~ §
Defendants. § TRAVIS COUNTY, TEXAS
TEMPORARY INJUNCTION
On November 5, 2021, the Court held a hearing on the Application of Plaintiffs for a
Temporary Injunction and Defendants' Plea to the Jurisdiction. Michelle Williamson, official
court reporter for the 345 th District Court made a record.
After considering the pleadings on file, the admissible evidence, and the arguments of
counsel, the Court GRANTS the Plaintiffs' Application for a Temporary Injunction, finding
that:
1. Plaintiffs have asserted a valid ultra vires claim against Commissioner
Hellerstedt for declaratory and injunctive relief for his amendments to the
definitions for the terms "tetrahydrocannabinols" and "Marihuana extract" as
reflected in the 2021 Department of State Health Services' Schedule of
Controlled Substances.
Plaintiffs have asserted a valid cause of action under the Administrative
Procedures Act (APA) against DSHS for its changes to DSHS's webpage
Page 644
wherein DSHS proclaims that Delta-8 in any concentration is considered a
Schedule I controlled substance.
3. Plaintiffs have shown a probable right to declaratory and injunctive relief
because Commissioner Hellerstedt's action amending the definitions failed to
meet the requirements found in§ 481.034 of the Texas Health & Safety Code,
and DSHS's rule as stated on its website concerning Delta-8 failed to comply
with the rule making requirements found in the AP A
4. As a result of Commissioner Hellerstedt's ultra vires actions and DSHS's APA
violations, Plaintiffs will suffer imminent and irreparable harm such as brand
erosion, reputational damage, including loss of customers' goodwill,
unsalvageable loss of nationwide customers, loss of market share, loss of
marketing techniques, employee force reduction, revenue lost and costs
incurred by not being able to manufacture, process, distribute, or sell hemp
products that fall within the newly adopted definitions for
"tetrahydrocannabinol" and/ or "Marihuana extract," having to relocate or
shut down part of Plaintiffs' businesses and contributing to the insolvency of
Plaintiffs' vendors and customers, and subjecting all of Plaintiffs' employees
and similarly situated company employees and individual consumers to
potential arrest and other criminal penalties. In addition, Plaintiffs Darrell
Suriff and David Walden, along with other similarly situated individual
consumers throughout Texas, will have no effective treatment to anxiety,
depression, insomnia, migraines, loss of appetite, chronic pain, and nausea.
Plaintiffs, along with these other individuals, may be forced to seek other
Page 645
dangerous alternatives, like opioids or street drugs.
5. Plaintiffs cannot be adequately compensated in damages because the damages
are not quantifiable and there is no monetary relief that can be obtained from
Defendants. Such injuries would be compounded should Defendants not be
immediately restrained from their activities.
6. This Temporary Injunction will preserve the status quo that existed prior to
Commissioner Hellerstedt's ultra vires conduct and DSHS's APA violations and
is in the public's interest. The harm to the Plaintiffs if this Temporary
Injunction is not granted outweighs any potential harm to the Defendants by
this Temporary Injunction's issuance. Granting injunctive relief will benefit
the public interest.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Plaintiffs' Application
for a Temporary Injunction is GRANTED and DSHS and DR. JOHN WILLIAM HELLERSTEDT,
in his official capacity as Commissioner of DSHS, his officers, agents, servants, employees,
attorneys, and all other persons or entities in active concert or participation with the
Defendants who receive actual notice of this Order by personal service or otherwise are
enjoined as follows:
1. The Court hereby enjoins the effectiveness going forward of amendments to
the terms ""tetrahydrocannabinols" and "Marihuana extract" in the 2021
Department of State Health Services's Schedule of Controlled Substances.
More specifically, DSHS shall remove from its currently published Schedule of
Controlled Substances the most recent modifications of the definitions to the
following terms: "*(31) Tetrahydrocannabinols" and "*(58) Marihuana
Page 646
extract," and any subsequent publications of the same (if any) until further
order of this Court.
2. The Court hereby enjoins the effectiveness going forward of the rule stated on
DSHS's website that Delta-8 THC in any concentration is considered a Schedule
I controlled substance.
This prohibition lasts until the conclusion of the final trial of this case or further notice
of the Court.
Actual notice of this Temporary Injunction shall be made by personal service in
accordance with the Texas Rules of Civil Procedure.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that a final trial on the merits is
set for January 28, 2022.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiffs shall post with
the Clerk of this Court a bond in the amount of $1000.00.
SIGNED on November 8, 2021, at 10:22 a.m.
,
trzi&-1.-
ge Presi ng
Page 647
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00571-CV
Texas Department of State Health Services, and Dr. John Hellerstedt,

in his Official Capacity as Commissioner of DSHS, Appellants
v.
Sky Marketing Corp., d/b/a Hometown Hero; Create A Cig Temple, LLC;
Darrell Surif; and David Walden, Appellees
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-21-006174, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
ORDER
PER CURIAM
In this interlocutory appeal, appellees have filed an emergency motion for
Rule 29.3 temporary relief, asking this Court to reinstate the trial court’s temporary injunction
during the pendency of this appeal. See Tex. R. App. P. 29.3 (“[T]he appellate court may make
any temporary orders necessary to preserve the parties’ rights until disposition of the appeal[.]”).
To preserve the status quo and best preserve the parties’ rights during this appeal’s pendency, we
grant appellees’ motion and order that the trial court’s temporary injunction is reinstated until the
disposition of this appeal. See id.; see also In re Geomet Recycling LLC, 578 S.W.3d 82, 89–90
(Tex. 2019) (orig. proceeding) (“Rule 29.3 gives an appellate court great flexibility in preserving
the status quo based on the unique facts and circumstances presented.”); Texas Gen. Land Office
v. City of Houston, No. 03-20-00376-CV, 2020 WL 4726695, at *2 (Tex. App.—Austin July 31,
2020, order) (per curiam) (“[A]t this preliminary stage, our task is to determine whether a
temporary order will best ‘preserve the parties’ rights until the disposition of the appeal,’ not to
determine the merits of the appeal.”).
It is ordered on November 18, 2021
Before Justices Goodwin, Baker, and Smith
2
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174
STYLE: IN RE TEX. DEP'T OF STATE HEALTH SERV.
Today the Supreme Court of Texas denied the petition

for writ of mandamus in the above-referenced case. Relators’
Emergency Motion for Temporary Relief is dismissed as moot.
MR. D. TODD SMITH

BUTLER SNOW, LLP
1400 LAVACA STREET
SUITE 1000
AUSTIN, TX 78701
* DELIVERED VIA E-MAIL *
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

DISTRICT CLERK TRAVIS COUNTY

TRAVIS COUNTY COURT
P. O. BOX 679003
AUSTIN, TX 78767
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

CYNTHIA AKATUGBA
OFFICE OF ATTORNEY GENERAL
300 W 15TH ST FL 11
AUSTIN, TX 78701-1649
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MR. JEFFREY D. KYLE

CLERK, THIRD COURT OF APPEALS
209 WEST 14TH ST., ROOM 101
AUSTIN, TX 78701
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MS. AMANDA GARRETT TAYLOR

BUTLER SNOW LLP
1400 LAVACA ST., SUITE 1000
AUSTIN, TX 78701
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MR. SCOTT K. FIELD

BUTLER SNOW LLP
1400 LAVACA, SUITE 1000
AUSTIN, TX 78701
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

DAVID GONZALEZ
BUTLER SNOW
1400 LAVACA ST STE 1000
AUSTIN, TX 78701-1764
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MR. MARSHALL BOWEN

BUTLER SNOW LLP
1400 LAVACA ST STE 1000
AUSTIN, TX 78701-1764
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MS. BETH E. KLUSMANN

ASSISTANT SOLICITOR GENERAL
OFFICE OF THE ATTORNEY GENERAL
P.O. BOX 12548 (MC 059)
AUSTIN, TX 78711-2548
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

KATHERINE FRANK
SERGI & ASSOCIATES, P.C.
329 S GUADALUPE ST
SAN MARCOS, TX 78666-6309
FILE COPY
RE: Case No. 21-1009 DATE: 12/10/2021

COA #: 03-21-00571-CV TC#: D-1-GN-21-006174

MR. DAVID KENNETH SERGI

DAVID K. SERGI & ASSOC., P.C.
329 S. GUADALUPE
SAN MARCOS, TX 78666
EXHIBIT 11
DaYid \lartin. Boom, Cirrnit Clerk
COMMONWEALTH OF KENTUCKY
BOONE CIRCUIT COURT
DIVISION I
CASE NO. 21-Cl-00836
KENTUCKY HEMP ASSOCIATION, et al., PLAINTIFFS
vs.
RYAN QUARLES, In His Qfficial Capacity
As Kentucky Commissioner of Agricuflure, et al., DEFENDANTS
ORDER
This matter is before the Court on Plaintiffs' Motion for Temporary Injunction,
concerning which the Court conducted an evidentiary hearing on December I 6, 202 I. Hon.
Christopher D. Wiest and Hon. Thomas Bruns appeared for Plaintiffs. Hon. Olivia F. Amlung
and Hon. Marc Manley appeared for Kentucky Commissioner of Agriculture Ryan Quarles; and
Hon. Lauren Lewis and Hon. Samantha Bevins appeared for Commissioner of the Kentucky
State Police, Phillip Burnell, Jr. At the hearing, Plaintiff presented testimony from Mitchell Tate
Hall, Vice President and prior President of the Kentucky Hemp Association, Doris Hamilton, the
party representative for the Kentucky Department of Agriculture (as if on cross-examination).
Rose Seeger, owner of Ky Hemp Girl, LLC, and Dr. Lewis .Jackson, Ph.D. Commissioner
Quarles presented testimony from Eric Wang, chief executive officer of a company relating to
hemp, Dr. Christopher Hudalla, Dr. Peter Akpunonu, Jennifer Padgett, and Sgt. Chris Weber,
with the Boone County Sheriffs Department and Northern Kentucky Drug Strike Force.
HISTORICAL BACKGROUND a,
0
0
0
The history of hemp production is not only a fascinating tale, one that predates the 0
0
;;
founding of our country, but also one in which Kentucky has played a significant pa11. Prior to 0
0
0
0
Entered 21-Cl 00836 Da,·id \l ,trrin. Boone Circuit r·1e1\i.

r nterf'<l !1-CI-00836 D,nid \I ariin. Boone ( 1rruit CIHi.
colonialization, Native Americans raised hemp for many uses, including clothing and food. 1
Settlers at Jamestown grew hemp in the early- I 600s, and hemp farming continued throughout the
development of the colonies to become a vital commodity for not only North America but
2
England as well. In addition to other uses, including enduring parchment, nothing compared
with the durability of hemp fibers for making sails, cords and rope. Hemp became so integral for
Britain's navy that colonial farmers were required lo farm it. 3 For example, more than 120,000
pounds of hemp was needed to rig the 44-gun USS Constitution, not including that required for
4
canvas and sails. And, reportedly, Thomas Jefferson wrote the first drafts of the Declaration of
Independence on paper made from hemp. 5
Following the Revolutionary War and until the late 1800s, most of the hemp produced in
6
America was grown by Kentucky fam,ers. But as steam ships gained ascendency on the seas,
7
demand for hemp decreased. By World War I, Kentucky was the only state raising or producing
hemp of any significance, and the nation's primary producer of hemp seed. 8
Hemp is from the cannabis family of plants as is marijuana ..9 Variations within the
cannabis family of plants have different characteristics, much like there are differences between
10
apple varieties: The stalks of cannabis plants contain fiber valuable for production of a wide
1
Kenneth Titus and Stephanie Murray, /11d11strial Hemp, Journal of the Kansas Bar Association. 90-APR .I. K,111.
B.A. 24, 25 (March/April, 2021).
2
Id., citing Oscar H. Will 111,The Fo1go11e11HistOJ)'of Hemp C11ltivatio11in America. FARM COLLECTOR (Nov.
2004), https://www.fam1collcctor.com/fann-l i fe/strategic-fibers.
3
Michelle R.E. Donovan, Jason Canvasser and Danielle M. Hazeltine. The £volvi11g CBD and Hemp Market.
Michigan Bar Journal. I 00-JUN Mich. B.J. 38. 39 (June, 2021 ). citing. Will, The Forgo11e111-/isto,~1
of Hemp C11//ivo1io11 in America, Farm Collector< hnps://www.farmcollcctor.com/farm-lifc/stratcgic-libers/>.
• Id. 0
0
0
5
4 Ky . .I. Equine. Agric. & Nat. Resources L. 479. 480(2012).
Vanessa Rogers The F111ureof/lemp in Ke11t11cky, 0
6
Oscar 1-1.Will, supra, note 2.
0
N
7 0
Id. 0
0
0
a Id. 0
9
Donovan, et al., 100-JUN Mich. B.J., at 39.
,o Id.
2
Intere<J 21--CI-00836 Da,·id .'.\Ia1tin. Bo one C irrnit Clc·rk
fntered '.!l-CI-008J6 0'.! :!8/20'.!2 J>a, id \I artin. Boone C irruit Cler,,_
range of materials, including paper, rope, canvas, building materials and cosmetics. 11 The plant
also contains flowers, seeds and oil, concerning which many extol as providing health benefits
12
and affording natural relief fi-om adverse medical conditions. Cannabis contains cannabinoids
in quantities that vary depending upon the specific variety of cannabis plant. And cannabinoids
13
are comprised of hundreds of natural compounds. Among these are tetrahydrocannabinol
("THC"), the component having psychoactive properties that can produce feelings of euphoria or
a "high," and cannabidiol ("CBD"), which is popular for treating pain, anxiety and other
14
disorders, including neurological diseases.
The federal government began discouraging hemp production beginning with the 1937
Marihuana Tax Act, which taxed the sale of all forms of cannabis. Except for a brief interlude
during World War II involving the "Hemp for Victory" campaign, punitive taxation and
availability of synthetic fiber stifled the production of hemp. In 1970, Congress passed the
Controlled Substances Act, making all cannabis a Schedule I illegal drug-the same designation
as narcotics like heroin. Consequently, even hemp production or possession became illegal
under federal law. 15 Proponents of hemp have long fought its antagonists to reverse this. That
battle sti II rages.
Proponents of hemp gained ground with the Agricultural Act of 2014 and, later, the
Hemp Farming Act of 2018, which removed hemp from the Controlled Substances Act and
allows hemp to be fam1ed agriculturally. Congress did this by codifying an exemption for
industrial hemp, under which cannabis plants may not contain more than 0.3 percent of delta-9-
THC ("Delta-9"). Kentucky, which had lost significant agriculture following tobacco's fall from 0,
;;
0
0
C>
11 0
Titus. et al., 90-APR J. Kan. B.A., at 25. M
0
12 Id. 0
0
13 0
Donovan, et al .• 100-JUN Mich. B.J., at 39. 0
t4 Id. C
15 0
Titus. et al .. 90-APR J. Kan. B.A.. at 25.
3
Inten'!I 21 CI 00836 Da,·id .\1 anin. Boone Circuit Clerk
I111ered :?l-CT-00836 D,l\11i :\I arti11. Boone C-ilrnit ( le,t-.
grace, was at the forefront of this development and the General Assembly enacted statutes
tracking the federal exemption for hemp. Following the exemption, various products have been
produced from hemp, including CBD oil. Through further processing, a form of THC identified
as delta-8 ("Delta-8") can be derived from CBD. According to testimony, products containing
Delta-8 are in demand.
On April 19, 2021, the Kentucky Department of Agriculture issued a letter stating Delta-
8 is a Schedule I controlled substance, thus illegal, and warned that any manufacturing or
distribution of products containing Della-8 could result in hemp license revocation and criminal
prosecution. Plaintiffs point to subsequent criminal enforcement actions by the Kentucky State
Police, including raids and arrests, relating to distribution of Delta-8.
ARGUMENTS PRESENTED
Plaintiffs insist that Delta-8 is a derivative of hemp and, therefore, not a controlled
substance but exempt. For this premise, Pia inti ffs reference the stat11tory exemption of hemp in
7 U.S.C. § 16390, and also K.R.S. 260.850. Plaintiffs insist that, because the actions of
Defendants are contrary to these statutes, they are acting unlawfully and violating their rights.
As to Commissioner Quarles, Plaintiffs argue that he has threatened licensees with revocation of
their license and criminal prosecution for engaging in lawful production of Delta-8. Further, at
the hearing, they show that police relied upon the April 19, 2021 letter by the Kentucky
Department of Agriculture in an affidavit in order to secure a search warrant. And, with regard
to the Kentucky State Police, Plaintiffs point to the raids and arrests relating to the same.
Plaintiffs argue that, because the production and distribution ofDelta-8 by licensees is a lawful C,
0
0
0
activity, Defendants' actions are or will cause irreparable harm and. thus, should be temporarily 0
0
'<t
0
enjoined pending final decision on the merits. 0
0
0
0
0
0
4
[nte.red :?l-C I-00836 Da,·id :\larrin. Boone Circuit Cl~rk
21--C'J-OOS:.\6 O::!'.!8 20:!'.! Da, id ,r art in. Boone C-i1·rni1Clerk
fn response, Defendant Burnell, Commissioner of the Kentucky State Police, argues that
Delta-8 is not exempt under the hemp legislation. For this premise, he points to a chart on the
Website of the United States Drug Enforcement Agency ("DEA") where it identifies Delta-8 as
being another name for THC, a Schedule I controlled substance. He also references a health
advisory published by the Centers for Disease Control warning against the use of products
containing Delta-8. Additionally, Commissioner Burnett argues that injunctive relief would be
improper on other grounds, namely, because the only harm to Plaintiffs is monetary, that there
already has been sufficient delay in Plaintiffs' case to undermine their claims of immediate or
imminent irreparable harm, and that equity supports denying injunctive relief because of the
public's interest that.the criminal statutes be enforced.
Defendant Quarles responds that the Kentucky Department of Agriculture neither
enforces the criminal laws nor regulates Delta-8, and that the April 19, 2021 letter was merely
offered guidance. Consequently, he argues, an injunction would be inappropriate as to either
him or his Department. Defendant Quarles initially incorporated 16 arguments from his motion to
dismiss, namely, that the harn1s Plaintiffs alleged to be threatened could be challenged in
criminal enforcement proceedings, that hemp license revocation could be challenged through an
administrative hearing process, that Plaintiffs failed to allege sufficient injury or controversy and.
thus, they lack standing.
Commissioner Quarles also argues that the question is more complicated than the
statutory exemption language appears. Defendant Quarles explains that, although the THC in
Delta-8 results in a milder high than Delta-9 THC, it is other-vise similar. According to en
....
0
0
0
0
0
16
"'
0
0
However, Commissioner Quarles withdrew his motion to dismiss thai. prior to that withdrawal. sought 0
0
incorporation of the arguments therein by reference. In his notice of withdrawal, Commissioner Quarles indicates 0
the intention to litigate the issues to preserve "tJ1c integrity and future prospects" of the hemp program from the Q
0
dangers of "court-sanctioned" Delta-8.
5
21-CI-00836 D,n id )[ art in. Boone Circuit Cle1 k
::!l..(l-00836 DaYid \I artin. Boone ( ircuit (Jerk
Defendant Quarles, Delta-8 should be considered more of a synthetic creation than a derivative
of hemp. Accordingly, he indicates it is otherwise prohibited under K.R.S. Chapter 218A.
Further, Quarles contends that because Pia inti ffs' loss from complying would be merely
monetary, it cannot constitute irreparable hann. Nor, he argues, would an injunction be
equitable. As to this he asserts that, "[u]nlike its commonly known counterpart, Delta-8 THC is
largely unregulated by federal and Kentucky law," thus, a "court order prospectively blessing the
sale of unregulated, untested, and psychoactive drugs to the public, including children, is not in
17
the public interest."
fn Reply to Commissioner Burnett, Plaintiffs argue that statements on the DEA's Website
cannot supersede the law and, in support, point to the DEA 's official promulgations in the
Federal Register, at 21 CFR 1308.11(31)(ii), that: "(ii) Tetrahydrocannabinols does not include
any material, compound, mixture, or preparation that falls within the definition of hemp set fo11h
in 7 U.S.C. 16390." Contra the argument concerning delay in filing, Plaintiffs explain that they
did not file until actual enforcement actions began, such as raids and arrests. Additionally,
Plaintiffs assert that Defendant should not be heard to complain that Plaintiffs waited until
parties were served and attorneys entered appearances before moving for injunctive relief.
As to Defendants' argument that monetary loss cannot equate to in-eparable harm,
Plaintiffs point to various federal precedent stating that, because government actors are typically
immune from liability for monetary damages, those losses are irreparable. Contra Quarles·
arguments, pointing to the April 19, 2021 letter, Plaintiffs point out that the Department has
statutory authority to revoke or suspend licenses, and that he has expressly threatened to do so a,
0
0
0
over the very issue in dispute. Further, Plaintiffs point to statutes and precedent to support its 0
0
<D
0
0
C>
0
0
(,
17
Commissioner Quarles' Resp .. pp. 15-16.
6
Entered 21-CI-00836 o:!f:?Si::!O:?.:! DaYid \lartin. Boone Circuit Clerl-
£11tf'fed 21--CI--008.36 0:! '.!8 20'.!'.! DaYid ~I .trtin. Boone Cirrnit C leli,:
position thal lhe controversy here meets standing requirements and, more specifically, grounds
for injunctive relief. According to Plaintiffs, the statutory exemption enacted by both the United
States Congress, and the Kentucky General Assembly, is clear. Thus, Plaintiffs insist. Delta--8 is
exempt and the actions by an agency (or individual officers thereof) to punish licensees for
producing it, and raids and arrests of citizens by the Commonwealth's police on those grounds.
violates the Kentucky and United States Constitution, thereby constituting irreparable harm.
ANALYSrs
CR 65.04( I) provides the standard the Cami is to apply on a Motion for injunctive relief:
A temporary injunction may be granted during the pendency of an action on

motion if it is clearly shown by verified complaint, affidavit, or other
evidence that the movant's rights are being or will be violated by an adverse
party and the movant will suffer immediate and irreparable injury, loss, or
damage pending a final judgment in the action, or the acts of the adverse party
will tend to render such final judgment ineffectual.
The purpose of this rule "is to insure that the injunction issues only where absolutely
necessary to preserve a party's rights pending the trial of the merits." Maupin v. Stansb111y,575
S.W.2d 695, 698 (Ky. App. 1978). In Maupin, the Kentucky Court of Appeals established a
three-part test for issuance of a temporary injunction. First, Plaintiff must show that, without the
temporary injunction, he will suffer immediate and irreparable injury to his rights pending trial.
Id. at 699. Second,the Courtmustweighany equitiesthat maybe involved.Id. Third,the Court
should determine whether a substantial question on the merits has been shown. id. "If the party
requesting relief has shown a probability of irreparable injury, presented a substantial question as
to the merits, and the equities are in favor of issuance, the temporary injunction should be
awarded." Id. ff one or more of these criteria are not satisfied, the temporary injunction should "'
0
0
0
0
0
be denied. Sturgeon Min. Co., Inc. v. Whymore Coal Co.. Inc., 892 S. W.2d 59 I (Ky. 1995). ~-
0
0
0
0
0
0
0
7
[urered 21-C 1-00836 02 '.!812022 DaYid .\Iartin. Boone Circuit Cl('1k
Entered 21-C I-00S.\6 Da,id \fart in. Boone Circuit Clerk
Among Plaintiffs are the Kentucky Hemp Association, whose members are comprised of
licensees under Kentucky's hemp program administrated by the Kentucky Department of
Agriculture. Plaintiffs also include a hemp producer licensed under that program, and a retailer
who is neither a producer nor licensed as such. The evidence entered al the hearing
demonstrates-and Defendants do not dispute-that the Kentucky State Police has conducted
raids and arrests in Kentucky to prevent distribution of products containing Delta-8. What is in
dispute is whether that constitutes irreparable harm. The answer to that question turns, first and
foremost, upon whether the raids and arrests are performed according to law. And that answer,
in the main, largely centers upon whether Delta-8 is prohibited or exempted under the statutes at
issue. If prohibited by law, then no further analysis is needed.
The evidence further demonstrates--<:oncerning which there is also no dispute-that the
prohibition of products containing Delta-8 results in economic loss to those who farm, produce
and sell it. lt is further uncontested that Delta-8 is sold at retail in the states surrounding
Kentucky, including Indiana, Tennessee, West Virginia, and Ohio. Plaintiffs also demonstrated
at the hearing that law enforcement agents relied upon the April 19, 2021 letter from the
Kentucky Department of Agriculture in an affidavit to show the criminality of Delta-8 to obtain
search wa1Tant(s). 18 Again, the dispute is whether there are grounds for injunctive relief. And,
again, that answer first depends upon the legality of the prohibition. Consequently, in actions
where, as here, the central issue is the constitutionality of government action, the third clement of
the Maupin test becomes the threshold question.
en
0
0
0
0
0
co
0
0
0
0
C,
(;
18 tJ
Plaintifrs Hearing Exh. No. 7.
8
[mered ll-CI-00836 01,1s,1021 David .\I anin. Boone Circuit Clerk
[ntered 21-CI-00836 02/28 2022 D,n id \I arrin. Boone Cirrni1 l lerk
A. Substantial Question on Merits
In the Hemp Farming Act, part of the Farm Bill enacted in 2018, Congress exempted
hemp from the Controlled Substances Act. In doing so, Congress defined hemp as follows:
The tern, "hemp" means the plant Cannabis sativa L. and any part of that
plant, including the seeds thereof and al I derivatives, extracts, cannabinoids,
isomers, acids, salts, and salts of isomers, whether growing or not, with a
delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a
dry weight basis. 19
Kentucky, through its General Assembly, enacted statutes exempting hemp with a
definition using nearly identical language. KRS 260.850 provides, in relevant part, as follows:
(5) "Hemp" or "industrial hemp" means the plant Cannabis saliva L. and any
part of that plant, including the seeds thereof and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or
not, with a delta-9 tetrahydrocannabinol concentration of not more than three-
tenths of one percent (0.3%) on a dry weight basis;
(6) "Hemp products" or "industrial hemp products" means products derived

from, or made by, processing hemp plants or plant parts; ....
At the hearing, Dr. Lewis Jackson testified as an expert for Plaintiffs. Dr. Jackson holds
a B.A. and Ph.D. in Chemistry and has experience in the cannabis industry. Dr. Jackson
explained the process involved in producing Delta-8. The process of extraction, he explained, is
performedthroughchemicalreactions. He testifiedthat the first step in producingDelta-8 is to
extract CBD. This is done by separating the flower, drying it, grinding it and applying an
organic solvent (such as oil) to solubilize the cannabinoids for extraction from the plant material.
Then, from resulting CBD, whether as a crude extract or isolate, the CBD is solubilizcd again
en
with what he tenned a friendly organic solvent to liquify the material and induce further 0
0
0
0
0
reactions to derive or extract Delta-8. Dr. Jackson testified that the resulting Delta-8 is a a,
0
0
0
0
0
0
19 0
7 U.S.C. 16390( I).
9
fntetC'd 21-C 1-00 836 Da\"id :.\lartiu. Boone Circuit Clerk
Intered ll -C'T-008.\6 Da,irl \I artin. Boone C irrui1 ( IPd,
derivative ofCBD, which is a derivalive of hemp. Dr. Jackson testified that Delta-8 is not Dclta-
9 and that, in fact, Delta-8 can contain concentrations of Delta-9 THC. The concentrations may
be greater or less than 0.3% Delta-9 THC, which is what determines whether it is exempt under
the statute.
Defendant Quarles argues that Delta-8 should not be deemed a derivative or hemp but a
synthetic creation from chemical processes that is otherwise prohibited under K RS Chapter
218A. The first problem with this argument, however, is that the statutory prohibitions of
synthetic marijuana were repealed-perhaps in conjunction with the legalization of hemp.
The next issue with this argument is the text of the hemp statutes itself, which exempts
hemp from "the plant Cannabis sativa L. and any part of that plant. including the seeds thereof
and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether
growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths
20
of one percent .... " And, further, KRS 260.858( I) provides that: "Notwithstmuli11g any other
provisio11of law to the contrary, it is lawful for a licensee, or his or her agent, to cultivate,
handle, or process hemp or hemp products in the Commonwealth." 21 Clearly, the definition of
hemp includes derivatives, extracts and isomers.
As the evidence shows, the extraction of derivatives, and the isolation or isomers, involve
chemical processes. However, the statute exempts "all derivatives, extracts, cannabinoids,
isomers" so long as it contains less than three percent Delta-9 THC on a dry weight basis.
The Court agrees with Commissioner Quarles that it is not the province of this Court to
establish policy, or to make, change or repeal law. That is solely the role or the legislative m
0
0
0
branch. Courts adjudicate based upon the law. Thus, ifonly natural hemp (unadulterated by any 0
0
0
0
0
0
0
10
Emphasis added.
11
Emphasis added.
10
l nterro !l C.1-00836 DaYid :\I a11in. Boone Cir-cuit C !erk
l ntered '.!l-CJ-00836 na,·id :-ir;fftin. Rn one 1irc111t ( IPrh
chemical) is worthy of exemption, then Congress, and the General Assembly, could have made
their statutes say so. They did not. Likewise, if the extraction or production of derivatives using
non-hemp solvents should have remained a controlled substance, then the legislators could have.
by statute, said so. They did not. Nor did the legislative body choose to limit Delta-8
concentrations as it did with Delta-9. Again, they could have but did not. Courts "cannot
question the wisdom or policy of the general assembly" but, rather, "must follow the plain
provisions of its enactment .... " Boyd v. land, 97 Ky. 379, 30 S.W. 1019, 1020 (1895). In
applying the law, courts must "look first to the language of the statute, giving the words their
plain and ordinary meaning." Richardson v. louisvil!e/J~fferson Cly. Metro Gov 't, 260 S. W.3d
777, 779 (Ky. 2008). Where intent is suggested that is contrary to the language of the statute,
"legislative intent is at best a nebulous will-o'-the-wisp." Gateway Const. Co. v. Wa/1/)((11111,

356
S.W.2d 247,249 (Ky. 1962).
Defendants, however, contend that Delta-8 is nonetheless prohibited as a controlled
substance. For this, they point to a chart on the DEA's Website and to guidance by the CDC.
Executive agencies may promulgate regulations but only within the scope of the statute enabling
their existence. Otherwise, an agency has no constitutional authority to enact law.
Administrative agencies are creatures of statute. Consequently, they may not promulgate rules
that contradict statute. As explained by the United States Supreme Court in Dixon v. United
States:
The power of an administrative officer or board to administer a federal statute

and to prescribe rules and regulations to that end is not the power to make
law * * * but the power to adopt regulations to carry into effect the will of
Congress as expressed by the statute. A regulation which does not do this, but 0
0
0
operates to create a rule out of harrnony with the statute, is a mere nullity. 0
·o
Dixon v. United States, 381 U.S. 68, 74 (U.S. 1965), internal quotes and citations omitted.
11
llllffed 11 Cl 00836 Da, id .\J anin. Boone Circui1 C letk
£ llfffed 11-C J-008.\6 DaYid \f ,11ti11.Boone ( irru11 ( led,
The same was also explained by Kentucky's (formerly) highest court concerning the
limits on the authority of government agencies and boards (in a case involving the Kentucky
Alcoholic Beverage Control Board):
Trne, the Legislature ... vested the Board with certain regulatory and
administrative powers, but this does not give the Board authority to adopt
regulations extending beyond the scope of the statute which ii altempts to
administer. ... (A] public administrative board 'may not, by its rules and
regulations, amend, alter, enlarge, or limit the terms of a legislative
enactment.'
Roppel v. Shearer, 321 S.W.2d 36, 39 (Ky. 1959), internal citations omitted. Rappel has never
been overruled.
Moreover, as Plaintiffs point out, the DEA 's chart reference to Delta-8 docs not coincide
with the regulations promulgated and published in the Federal Register at 21 CFR
1308.1 I(31 )(ii). ff agencies may not promulgate regulations beyond statutory authority, much
less may they do so by explanatory statements or charts on a Website. Plaintiffs have
demonstrated a substantial question on the merits.
B. Irreparable Harm
Plaintiffs contend that government actions that are contrary to its duly enacted law
constitute irreparable harm. For this. they point primarily to Boone Creek Props .. LLC v.
Lexi11gto11/Fayette
UrbanCountyBd. of Adjustment,442 S.W.3d 36, 40 (Ky. 2014). and quote, in
part, the following:
For a representative government that draws its authority from the respect.
good will, and consent of the people, rather than by the force of its armed
police and military, the ability to promptly eliminate ongoing violations of
laws enacted by the people's representatives is essential to the ability to
govern and maintain order in the community. e
0
0
0
0
0
Defendant Quarles, however, challenges the applicability of Boone Creek because it
"'
0
0
0
involved injunctive relief in favor of a governmental unit. According to Defendant Quarles. the 0
12
f11te1·ed 11-CI-00836 Da, id ~l anin. Boone Cirruit ( le1i-
f ntered 11..( I-00 836 Da,·icl \fart in. Boom' Circuit C Ink
proper rule is that, "when a government seeks to enforce the law, then an injunction against a
·s right to enforce its laws ... ."'22 The

private citizen is warranted to protect the gover111ne11t
Court disagrees. In fact, this argument defies the very foundational principle on which our law is
based: "That ... Governments are instituted among [the people], deriving their just powers from
the consent of the governed." DECLARATION ,12.

OF INDEPENDENCE,
Turning to the arguments concerning delay. Commissioner Burnett contends the timeline
alone defeats Plaintiffs' motion because they cannot show the inju1y to be "immediate." A
party's delay may very well undermine their claims of immediacy. By this, it appears
Defendant's criticism is that Plaintiffs did not file suit immediately upon receipt of the Kentucky
Department of Agriculture's April 19, 2021 letter. That would be a curious position, however,
given the arguments presented in this case that Plaintiffs have not alleged sufficient threat of
injury. Plaintiffs explain that they chose not to bring their challenge unless enforcement action
ensued, and that they elected to serve all parties and await appearances of counsel before moving
for injunctive relief. For this they cannot be faulted, especially with regard to the latter.
It remains true, however, that the most significant delay in this case is not attributable to
the timing of Plaintiffs' action, but to the briefing deadlines agreed to by the parties and to the
"'
0
0
-
0
0
0
M
;;
0
0
C
( '
(
22
Commissioner Quarles' Resp .. p. 13. emphasis original.
13
Entered H-CI-00836 DaYid :\I artin. Booue Circui1 Clc-rk
J 111ered 11-C T-008J6 Da, id \f :min. Boom> Cirrnit ( Ink
scheduling limitations of this Court. 23 The Court does not agree that injunctive relief may be
denied on the mere basis of delay. Moreover, here the claims of irreparable harm involve
government action. Thus, delay is not as determinative because the alleged harm might be of a
continuing nature.
As to Defendants' arguments that Plaintiffs' claims are merely monetary and, therefore,
cannot be deemed irreparable, the Court disagrees. First, there is also the foregoing
consideration concerning a citizen's ability to obtain redress. Second, as Plaintiffs point out.
Defendants are shielded from having to pay Plaintiffs any damages for monetary losses.
"[C]omplying with a regulation later held invalid almost always produces the irreparable harm or
nonrecoverable compliance costs." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220-21
( 1994) (Scalia, J ., concurring in part and concurring in the judgment); see, e.g., Ohio Oil Co. v.
Conway, 279 U.S. 813, 814 ( 1929) (holding that a company would suffer an irreparable injury
23
From March 2020 to June 2021, and nearly all months in between, jury trials were prohibited in the courts of
Kentucky. When this case was filed in July 2021, this Court had a backlog of cancelled jury trials that had to be
reset, many of which involved persons who were being held in custody pending trial. It was during this period lhc
Court attempted to schedule the cvidcntiary hearing in this matter for September 2021 which, as counsel an: aware.
the Court had no choice but to cancel. Given matters then pending. the earliest date available on the Court's
calendar was for December 16. on which the hearing occurred. And. aside from scheduling issues concerning the
hearing date, this matter has been under submission for over sixty days-a circumstance concerning which also
inviles explanation. In addition, the circumstances of the past two years have caused other bottlenecks aside from
the backlog on trials. During the past two years. significani court resources have had to be expended for matters that
heretofore were never in issue. Matters tha1previously required no expense of time became monumental tasks. For
example. trying to arrange hearings for persons in custody on warrants in the various detention centers became a
monumental task. Frequently, detention ccnlcrs stated they could 1101 accommodate remote hearings or virtual
access. And aside from hearings, often counsel would seek relief from the Court for clients in custody who. due to
varying protocols issued by varying persons or agencies, were being denied private meetings with their counsel.
Significant Court time had to be spent in trying to alleviate those circumstances by employing various means.
including. where all else failed, the issuance of transport orders to accommodate meetings at the Courthouse. There
were even instances where detention centers refosed to honor a transport order when deputies nnivcd. Scheduling
remote hearings among the various detention centers to coordinate with the calendars of all concerned also required
substantial time. And conducting the remote hearings (especially in the first year of the lockdown) proYed a great
expenditure of time. There were constant problems with bandwidth where the screen would freeze. or audio would "'
0
0
drop. and even when the Cou11·ssystem was functioning. a party or counsel's connection would drop and 0
0
arrangements then had to be made for telephonic participation, or for rescheduling; or there would be a 0
synchronization problem with the judicial audio-video recording system that threatened the record. It required far V
0
more time to do less work. Affording due process became a herculean (if not impossible) task. Thus, 1he timcline in 0
0
this case should not be taken as a judgment by the Court that it lacks importance. The Court ·s submit table has 0
grown heavy with cases. each having issues gravely important to all the parties conccmcd. and each crying out to be
heard.
14
r ntered 21-(I 00836 Da, id .\I art in. Bo one Circuit C (1>1k
f.ntered ~I -CJ-00836 DaYid \I art in. Boone Cit r11i1( li>rl,
from paying allegedly unconstitutional tax because state law provided "no remedy whereby
restitution of the money so paid may be enforced"). See Sampson v. Murray, 415 U.S. 61, 90
(U.S. J 974), explaining that "[t]he possibility that adequate compensatoty or other corrective
relief will be available at a later date, in the ordinaty course of litigation, weighs heavily against
a claim of iJTeparable harm.'' The converse reasoning, therefore, would also hold true.
Additionally, non-compliance here entails not mere monetary fines and costs but the
prospect of criminal charges. The April 19, 2021 letter has been presented as the grounds for
establishing the illegality of Delta-8 in the issuance of search warrants. Indeed, at the hearing
Plaintiffs presented evidence showing where persons in Kentucky have been criminally charged
for possessing Delta-8. 24 "To punish a person because he has done what the law plainly allows
him to do is a due process violation 'of the most basic sort."' U. S. v. Goodwin, 457 U.S. 368.
372 (1982). Irreparable harm is sufficiently demonstrated where it is shown there is potential for
the "abrogation of a concrete personal right," and where such rights are threatened with
immediate impairment. Maupin v. Stansbwy, 575 S. W.2d 695, 698 (Ky. 1978).
Commissioner Quarles' argument that, because Plaintiffs can challenge Dclta-8
enforcement when or if they are charged criminally is likewise without merit. Nor must
Plaintiffs be forced to defy the Commissioner in order to challenge his Delta-8 declaration in an
administrative hearing following license revocation See Rappel v. Shearer, 321 S.W.2d 36. 39
(Ky. 1959).
For all the foregoing reasons, the Court finds that Plaintiffs have made an adequate
showing of iJTeparable harm.

"'
0
0
0
0
0
0
0
0
0
(J
24 r.:,
See Plaintiff,' Hearing Exh. 7 and 8.
15
£111ered 21 ("l 00836 Da, id :\l artin. Boone Circuit C'le1t:
Entered 21-C J-008:\6 D,n-id \£ arr in. Boone ( i1-r1111C IN'k
C. Balance of Equities
As part of balancing the equities between the public interest and the respective parties.
courts are to consider "whether the injunction will merely preserve the status quo." Rogers v.
Lexi11gto11-FayetteUrban County Govemment, 175 S.W.3d 569,571 (Ky. 2005). On Plaintifrs
side, the status quo would be to merely recognize the existing statutory definition of hemp, and
the corresponding application of the statutory exemption of hemp. On Defendants' side, the
status quo would be to allow criminal enforcement, or license revocation, on the grounds
declared in the April 19, 2021 letter by the Kentucky Department of Agriculture despite it being
contrary lo the statutory exemption.
Defendants both argue the equities weigh against injunctive relief. According to
Commissioner Burnett, equity favors denying the injunction because "the public has an interest
in the enforcement and application of Kentucky criminal statutes by slate law enforcement.'' 25
And Commissioner Quarles contends that "Delta-8 THC is potentially dangerous to a user's
health, and is not approved for human consumption by the U.S. Food and Drng Administration,"
and that, although "Delta-8 THC is largely unregulated by federal and Kentucky law, ... a court
order prospectively blessing the sale of unregulated, untested, and psychoactive drugs to the
public, including children, is not in the public interest." 26
At the hearing, Defendants presented a witness who testified to adverse effects she
experienced from taking two doses of a product containing Delta-8 within a period of 30 to 45
minutes. Defendants also presented testimony concerning the adverse effects Delta-8 can
0
0
0
produce in small children, especially if taken in substantial quantities. Defendants' further 0
0
"'
0
0
0
0
25
Commissioner Burnett's Reply (deemed his Response). p. 6. fn. 2.
26 I,
Commissioner Quarles' Resp .• pp. 15-16.
16
fute,ed 21-CI 00836 Da, id :uarri11. Boone Circuit C letk
f111e1ed 21 ~-1 00836 DaYirl \I arr in. Boone ( irrnit ( IPrk
presented evidence of health care practitioners indicating that, despite warnings on packaging,
there have been instances where children have obtained products containing Delta-8.
It is clear from the testimony presented that the agents and officers who testified have 1he
best of intentions. But there are many hannful things offered to the public that may injure them
physically, mentally, or morally. Regardless of that fact, however, no agency or officer can
prohibit possession or distribution without legislative enactment. There is a reason our system
does not allow those charged with enforcing the law to also make the law.
In Roppe/ v. Shearer. Kentucky's then highest cou11considered a very similar argument
to the equity arguments presented by Defendants. There, the Kentucky Alcohol Control Board
promulgated a regulation declaring it t9 be illegal for licensed retailers of malt beverages to
either take orders for alcoholic beverages over the telephone or to deliver said beverages beyond
the premises of the licensee. The underlying statute provided that alcohol sales must be "from
the licensed premises only," not "at the license premises only." The Board argued this was
sufficient to enable it to impose the regulation. The Board further argued the regulation was
necessary to prevent retailers from selling alcohol to minors. The retailer sought a temporary
and permanent injunction against the Board. ln resolving the issue, Kentucky's then highest
court held:
This may be a moral and laudable purpose by the Board, but the statute
cannot be constrned as limiting sales by a retailer in any such manner. ...
the Board broadened the statutes and included therein matters not written into
the statutes by the Legislature. The Board cannot substitute its judgment
for that of the Legislature but must accept the law as enacted by that
body. It is elementary that the Legislature cannot delegate its functions to
others .... Whenever the Board adopted regulations which conflicted O>
with the statute, this court has consistently refused to sustain the 0
0
C
regulations. c.,
0
...
,-..
Roppe/ v. Shearer, 321 S.W.2d 36, 39 (Ky. 1959) (emphasis added; internal citations omitted). C
0
0
0
17
fntercd 21 CI 00836 D;n-id \I artiu. Boone Circuit Clet1,
fnten•d :?l C J-00836 Da,·icl \I a rein. Rooue Ci1 rnit Clerk
As this Court already stated, it agrees with Defendants that it is not the province of the
courts to establish policy. But neither is it the province of governmental agencies to contravene
the enactments of the legislative branch. Among the problems with Defendants' reasoning is it
would do so, resulting in placing administrative agencies over the legislative branch that created
them. And in no circumstance can that be said to serve equity.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs'
Motion for Temporary Injunction is GRANTED as follows:
I. That Defendant, Hon. Ryan Quarles, in his official capacity as Commissioner of the
Kentucky Department of Agriculture, as well as its officers and agents are, during the
pcndency of this case, ENJOINED from instituting or continuing any license
revocation or other adverse action against licensees on the basis of legally compliant
Hemp (the plant Cannabis sativa L. with a delta-9 tetrahydrocannabinol concentration
of not more than 0.3 percent on a dry weight basis), as well as any part of that plant
that is compliant (that has a delta-9 tetrahydrocannabinol concentration of not more
than 0.3 percent on a dry weight basis), including the seeds thereof and all
derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers. whether
growing or not, provided none of those materials have a delta-9 tctrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis; this includes any
products that contain delta-8 tetrahydrocannabinol unless it contains more than 0.3
percent delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a
dry weight basis.
That Defendant Colonel Phillip Burnett, Jr., in his official capacity as Commissioner
of the Kentucky State Police, as well as its officers, agents, and other persons in
active concert or patiicipation with them who receive actual notice of this Order by
personal service or otherwise are, during the pendency of this case, ENJOINED from
instituting or continuing any criminal enforcement action on the basis of legally
compliant Hemp (the plant Cannabis saliva L. with a delta-9 tctrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis), as well as any part
of that plant that is compliant (that has a delta-9 tctrahydrocannabinol concentration
of not more than 0.3 percent on a dry weight basis), including the seeds thereof and
all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers.
whether growing or not, provided none of those materials have a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight a,
basis; this includes any products that contain dclta-8 tetrahydrocannabinol unless it 0
0
0
contains more than 0.3 percent delta-9 tetrahydrocannabinol concentration of not 0
more than 0.3 percent on a dry weight basis. 0

a:,
0
0
0
0
18
Eulered 21-CI 00836 Da, id .\I anin. Boone Circuit <.!erk
fntererl !l-CJ-008.',6 D;n;d \J artin, Ro one Cirrni1 C'leli,
IT IS FURTHER HEREBY ORDERED AND ADJUDGED that Pursuant to C.R.
65.05( I), the Court finds it in the public interest to waive the bond requirement.
IT IS SO ORDERED.
tlJt.6-~
"'MOP•, RICHAA~OEOOE~~Jjr,
1ltet1onlulPf' signed
2128/2022 40, 11 PM ET
JUDGE RICHARD A. BRUEGGEMANN

BOONE CIRCUIT COURT
CC: ALL COUNSEL AND PARTIES OF RECORD.
C>
0
0
0
0
0
a,
0
0
0
0
19
Entered 21-CI-00836 Da,·id .\I art in. Boone Circuit Cleti,
EXHIBIT 12

P Verifiedcomplaint

Uploaded by

Copyright:

Available Formats

P Verifiedcomplaint

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

P Verifiedcomplaint

Uploaded by

Copyright:

Available Formats

EXHIBIT 1

U.S. Department of Justice

www.dea.gov September 15, 2021

Donna C. Yeatman, R.Ph.

Dear Dr. Yeatman:

Terrence L. Boos, Ph.D., Chief

cc: Birmingham Office

ORDER GRANTING RETURN OF PROPERTY

pursuant to O.C.G.A. § 17-5-30.

be taken from this ruling.

IT IS SO ORDERED this 12th day of January , 2022.

IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA, : Criminal No: 22-B-01152-3Q

ORDER GRANTING DEFENDANT’S MOTION FOR RETURN OF PROPERTY

SO ORDERED, this the _____

SASS Group, LLC, and Great Vape, LLC,

On Application for Interlocutory Appeal from

APPLICATION FOR INTERLOCUTORY APPEAL

Christopher M. Carr 112505

Table of Authorities .................................................................................. iii

A. Factual Background ....................................................................... 2

B. Proceedings Below. ......................................................................... 3

Reasons for Granting the Application ...................................................... 4

I. The trial court’s ruling on sovereign immunity meets all of the

A. Sovereign immunity is dispositive by nature. ........................ 7

B. The trial court erred by ruling that Plaintiffs could maintain

1. The word “action” in the waiver of immunity means case

2. Plaintiffs may not sue the State of Georgia for

C. There is an acute need for precedent on the new

Colon v. Fulton County,

Doe #102 v. Dep’t of Corr.,

Love v. Fulton County Bd. Of Tax Assessors,

McConnell v. Dep’t of Labor,

Sawnee Elec. Mbrshp. Corp. v. Ga. Dep’t of Revenue,

Slakman v. Continental Cas. Co.,

7 U.S.C. Section 1639o................................................................................2

O.C.G.A. § 2- 23-3(3) ...................................................................................2

O.C.G.A. § 2- 23-3(6) .............................................................................. 2, 8

O.C.G.A. § 5-6-34(a)(4) ................................................................................6

O.C.G.A. § 9-2-1(1) ................................................................................... 10

O.C.G.A. § 9-2-61 ..................................................................................... 11

O.C.G.A. § 9-10-2 ........................................................................................3

O.C.G.A. § 16-13-25(3)(P) ...................................................................... 2, 8

Ga. Const. Art. I, § II, Para. V(b). ..............................................................8

Ga. Const. Art I, § II, Para. V ....................................................... 1, 2, 5, 8

Ga. Const. Art. I, § II, Para. V(b)(1) .......................................... 5, 6, 11, 12

Ga. Const. Art. I, § II, Para. V(b)(2) ................................................. passim

Ga. Const. Art. VI, § VI, Para. II ...............................................................2

interpretation of a recent constitutional amendment providing a limited

Contrary to the express terms of the new limited waiver of immunity,

the lower court permitted Plaintiffs to pursue a lawsuit filed against

capacity. The express terms of the Georgia Constitution provide that

actions filed pursuant to this waiver “shall be brought exclusively

provide that “[a]ctions . . . naming as a defendant any individual, officer

or entity other than as expressly authorized under this Paragraph shall

erred in its reading of these limitations on the state’s waiver of

sovereign immunity. These errors are dispositive of the entire case

dismissed. The lack of any appellate decisions interpreting the state’s