“To be clear at the outset: No ‘marijuana’ is or has been sold at the Goldwasser (Best Buds) business,” the letter reads. “... The false, misleading, erroneous, and confused statements submitted by the affiant in the sworn affidavit to support the warrant issued ... are based upon misinformation and misunderstandings of the basic distinctions among ‘Cannabis,’ ‘Hemp,’ and ‘Marijuana.’”
Trotwood officials did not respond to requests for comment in time for this article.
Search warrant
Ramirez provided the Dayton Daily News with the letter, along with a copy of the search warrant affidavit.
The sworn affidavit includes a list of “facts” to support a search of the business submitted by a Trotwood detective.
One such fact within the affidavit claims Best Buds Depot began advertising as the “first recreational dispensary in Ohio where you could purchase marijuana without a medical card” soon after the Nov. 7 election that saw the legalization of recreational marijuana use.
Credit: JIM NOELKER
Credit: JIM NOELKER
While it is legal to consume marijuana in the state of Ohio, selling it remains illegal as of now, as the state works to issue the first licenses to dispensaries to allow such sales.
The affidavit list of facts also provides details of multiple controlled purchases at Best Buds Depot, along with results from subsequent testing of the product.
Product obtained during one purchase gave a THC content result of 12.3%, plus or minus 3.8%, when tested by the Bureau of Criminal Investigation (BCI) crime lab, according to the affidavit.
Product obtained during a separate purchase tested “presumptive positive” for marijuana above 0.3% — the threshold for legal sale of hemp in accordance with state and federal law — when field tested by police.
The affidavit also cites the shop’s own Facebook page, which has advertised leafy product as having THC contents of up to 27.9%.
Ramirez’s letter claims Trotwood police seized product valued in total up to $160,000, and calls into question the “chain of evidence and conditions under which it continues to hold” the product.
“Given the complex chemical differences between ‘legal’ and ‘illegal’ products, Goldwasser fears that Trotwood police are holding such perishable property under conditions that may degrade and change the chemical nature of the property from legal hemp products to those that do not comport with applicable law,” the letter reads.
Legal argument
Ramirez also provided the Dayton Daily News a legal opinion, memo and supporting documents making the argument that the products are hemp, not marijuana, because they contain less than .3% THC — even if they contain a much higher concentration of the cannabinoid THCa.
THCa is not psychoactive but converts to psychoactive THC when it’s heated — such as burned or vaporized.
The legal opinion is by cannabis business law attorney Rod Kight, who asserts Goldwasser’s products are legal under state and federal law because they contain THC concentrations under .3%, regardless of their THCa content.
Kight’s analysis notes that Ohio law takes into account THCa when measuring THC levels to determine if a product is marijuana or hemp, but Kight says that Ohio’s definition is “preempted by federal law.”
“For these reasons, Goldwasser’s cannabis products are lawful under Ohio law. At a minimum, they are federally legal ‘hemp’ and do not constitute ‘marijuana’ under Ohio law,” the analysis says.
Furthermore, Kight said, field tests to measure the THC level in a product are unreliable because they heat up the product, thus changing its chemical structure and increasing THC levels during the test.
The Dayton Daily News contacted Heidi Urness, a Seattle attorney specializing in cannabis law, who said there is great debate in the industry about some of these definitions — but the letter of federal law defines marijuana at the retail level based on levels of THC, regardless of THCa content.
If a company is offering hemp with high levels of THCa, as long as it is below the limit for THC, “If you’re asking me, they’re complying with the black letter of federal law,” she said.
But the product can still violate state law, she said, and courts have yet to rule on whether state law can conflict with federal law on this issue.
“It’s an interesting argument,” she said.
Threatened legal action
Also attached to Ramirez’s letter is a notice approved by the U.S. Postal Service that, according to Ramirez, accompanies every shipment from Goldwasser advocating for the enclosed product’s legality as hemp.
Credit: JIM NOELKER
Credit: JIM NOELKER
Ramirez includes multiple requests within his letter, including an in-person meeting with Trotwood police and city leaders “to clear up the gross misunderstandings and false accusations leveled against” Best Buds Depot, and the return of all seized property to the store.
Ramirez also includes a warning of legal action if property is not returned, impending litigation in U.S. District Court for purported civil rights violations against his clients, as well as a threat of “further public embarrassment for all involved as the true facts emerge as to the botched ‘investigation’ that led to the seizure.”
“Goldwasser’s customers include a number of your employees and will be harmed by the emerging disclosures and continued recklessness with which elements of your city government and law enforcement have harassed Goldwasser as outlined in this letter,” Ramirez wrote.
Best Buds Depot is still open, according to a May 11 post on the store’s Facebook page.
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