Summaries of Selected Opinions, 1219 COBJ, Vol. 48, No. 11 Pg. 72
| Position | Vol. 48, 11 [Page 72] |
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 18-1105. Kenney v. Helix TCS, Inc. 9/20/2019. D.Colo. Judge Seymour. Fair Labor Standards Act—Controlled Substances Act—Colorado Marijuana Industry—No Implicit Repeal.
Plaintiff worked as a security guard for Helix TCS, Inc. (Helix), which provides security services for businesses in Colorado's state-sanctioned marijuana industry. He sued Helix claiming entitlement to overtime pay under the Fair Labor Standards Act (FLSA). Helix moved to dismiss, arguing that the FLSA did not apply because growing marijuana is illegal under the federal Controlled Substances Act (CSA). The district court denied the motion.
On appeal, Helix argued that the district court erred in denying its motion because the CSA implicitly repealed the FLSA's overtime mandate for employers in the marijuana industry. FLSA is focused on regulating the activity of businesses rather than the legality of individual workers' activities, and employers are not excused from complying with laws, such as tax laws, because of their other federal violations. Moreover, the purposes of the FLSA do not conflict directly with the CSA. The FLSA applies broadly to employees, unless an exemption applies. Here, Helix did not argue that one of the enumerated exemptions applied to plaintiff.
The denial of the motion to dismiss was affirmed.
No. 17-1405. United States v. Thomas.
10/1/2019. D.Colo. Judge Hartz. Federal Circuit Split—Counterfeit Substance—U.S. Sentencing Guidelines—Controlled Substance Offense.
Defendant pleaded guilty to possession of a firearm by a convicted felon. He had a prior felony conviction for a crime of violence, so his base offense level was either 20 or 24, depending on the characterization of his Colorado conviction of distribution of an "imitation controlled substance" under CRS § 18-18-422(1)(a). At sentencing, the district court ruled that his conviction involved a "counterfeit substance" and therefore was a "controlled substance offense" under U.S. Sentencing Guidelines §§ 2K2.1(a) and 4B1.2(b). Accordingly, the district court increased defendant's base offense level.
On appeal, defendant argued that the Tenth Circuit should adopt a meaning of "counterfeit substance" as a controlled substance that has been mislabeled or misbranded fraudulently or without authorization. The statutory definitions of "counterfeit substance" usually refer to controlled substances...
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