IN THE SUPERIOR COURT OF GUAM

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IN THE APPLICATION OF) SPECIAL PROCEEDINGS
DEPARTMENT OF PUBLIC HEALTH) CASE NO. SP0137-14
AND SOCIAL SERVICES FOR)
ADMINISTRATIVE INSPECTION AND)
SEARCH WARRANT OF WISE OWL) FINDINGS OF FACT AND
ANIMAL HOSPITAL) CONCLUSIONS OF LAW
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INTRODUCTION

This matter came before the Honorable Anita A. Sukola on February 20, 2015 for a evidentiary hearing upon the motion by Joel Joseph, D.V.M. ("Movant") for return of propert seized under a warrant issued by this Court, pursuant to 8 GCA 35.30. Movant appeared and was represented by Attorney Mitchell F. Thompson. Objector, Government of Guam, Department of Public Health and Social Services was represented by Assistant Attorney General R. Happy Rons. Having heard the evidence and reviewed any relevant documents submitted by the parties and exhibits admitted into evidence, the Court now makes the following findings and conclusions.

FINDINGS OF FACT

By preponderance of the evidence, the Court makes the following findings of fact:
  1. The Department of Public Health and Social Services ("DPHSS") executed a search warrant on May 8, 2013, which was issued by the Superior Court of Guam on May 7 2013, on Movant's veterinarian clinic, i.e., Wise Owl Animal Hospital, located on Guam.
  2. The search warrant authorized DPHSS to, inter alia, "seize any controlled substances or what appears to be a controlled substance" found on the premises in violation of the Guam Uniform Controlled Substances Act [Chapter 67 of Title 9, GCA].
  3. Drugs, including controlled substances listed in Schedules III and IV of 9 GCA Ch. 67, were seized pursuant to the execution of the administrative search warrant. Client files, computers, cameras, and cash were also seized.
  4. DPHSS has the statutory authority to execute an administrative search warrant and conduct other regulatory and enforcement activities pursuant to Title 9 GCA Ch. 67.
  5. The items seized by DPHSS have been under DPHSS' control and custody since May 2013.
  6. On October 10, 2014, Movant filed his Motion for Return of the Property Seized under the Warrant.
  7. The Government of Guam, on November 12, 2014 filed a Response to Motion for Return of Property Seized Pursuant to the Search Warrant.
  8. On February 11, 2015, this Court ordered the return of some of the seized property excepting the medications. Specifically, this Court ordered DPHSS to submit a list to Movant of the medications which it seized from Movant pursuant to the warrant, along with an explanation for each such medication which it objected to returning to him.
  9. DPHSS, pursuant to the order of the Court, prepared a list setting out thirty-seven (37) types of medications seized during the raid on Movant's clinic. A copy of the list was moved into evidence at the February 20, 2015 evidentiary hearing as Exhibit A.
  10. DPHSS did not object to the return to Movant of items 1, 2, 5, 6, 7, 13, 23, 24, 25, 26, 27, 28, 29, 30, 32 and 37 on the list.
  11. DPHSS noted that it could not determine approval of the other items due to lack of labeling or they were not FDA approved. See Exhibit A.

CONCLUSIONS OF LAW

  1. This Court has jurisdiction over this matter, pursuant to 7 GCA 3105 and 4101, as it concerns the disposition of property seized pursuant to a warrant issued by this Court.
  2. DPHSS has the authority to administer the Guam Uniform Controlled Substances Act. 9 GCA 67.201.
  3. As DPHSS did not object to the return to Movant of items 1, 2, 3, 5, 6, 7, 13, 23, 24, 25, 26, 27, 28, 29, 30, 32 and 37 on the list, (Exhibit A), DPHSS shall return those items to him forthwith.
  4. Title 9 GCA 67.502.1, entitled Items Subject to Forfeiture for Violation of this Act provides in relevant part:
    1. The following shall be subject to forfeiture and no property right shall exist in them:
      1. all controlled substances which have been or are intended to be manufactured, distributed, dispensed, acquired or held in violation of the provisions of this Act;
  5. Property taken or detained under 9 GCA 67.502.1(c) shall be deemed to be in the custody of the Guam Police Department or DPHSS subject only to the orders and decrees of the Court. 9 GCA 67.502.1(c).
  6. Guam law provides that it shall not be necessary for the government to negate any exemption or exception to the Guam Uniform Controlled Substances Act, and that the burden of proof of any such exemption shall be upon the person claiming its benefit. Dr. Joel Joseph is the Movant and thus bears the burden of proof. 9 GCA 67.505.1(a); 9 GCA 67.505.2(a)(1).
  7. In the absence of proof that a person is the duly authorized holder of an appropriate registration issued under this Act, he shall be presumed not to be the holder of such registration, and the burden of proof shall be upon him to rebut such presumption. Movant, Dr. Joel Joseph, who has the burden of proof, has not shown proof that he is the duly authorized holder of an appropriate registration to import or export drugs. 9 GCA 67.505.1(b); 9 GCA 67.505.2(a)(2); 9 GCA 67.601; .606; .607.
  8. DPHSS, through Ms. Rosanna Rabago, testified that no-import-export registration records were ever found during the administrative search warrant inspection that was executed on May 8, 2013. Therefore, Movant, Dr. Joel Joseph is in violation of 21 CFR 1301.11(a); 9 GCA 67.306.
  9. Therefore, all other items not recommended by DPHSS for return, shall remain in the custody and control of said Department.

CONCLUSION

By preponderance of the evidence and based on the foregoing reasons, the Court finds the following:
  1. As DPHSS did not object to the return to Movant of items 1, 2, 3, 5, 6, 7, 13, 23, 24, 25, 26, 27, 28, 29, 30, 32 and 37 on the list, (Exhibit A), DPHSS shall return those items to him forthwith.
  2. All other items not recommended by DPHSS for return, shall remain in the custody and control of said Department.
  3. The parties are responsible for their respective costs and attorney's fees.

SO ORDERED this 6th day of JULY, 2015.

[signature]
HONORABLE ANITA A. SUKOLA
Judge, Superior Court of Guam