HomeMy WebLinkAboutReg 2011-08-15 Item 7 - Ordinance - 12-Month Moratorium on Medical Cannabis Collective Gardens or DispensariesCOUNCIL AGENDA SYNOPSIS
Initials ITEM NO.
Meetin Date Prepared by Mayor's_yrevieu I CounEil revienr
08/15/11 1 JP Air I U-/ 1
10/03/11 JP 7
ITEM INFORMATION
CAS NUMBER: 11-081 I STAFF SPONSOR: JACK PACE ORIGINAI.AGENDA DATE: 8/15/11
AGENDA ITEM Trmj Moratorium on medical cannabis collective gardens and dispensaries
CATEGORY N Discussion Motion Resolution N Ordinance BidAwatd N Public Hearing Other
Mtg Date 8/15/11 Mtg Date Mtg Date Mtg Date 8/15/11 Mtg Date Mtg Date 1013111 Mtg Date
I SPONSOR Council Mayor HR N DCD Finance Fire IT P&'R Police PII
SPONSOR'S Recent amendments to RCW 69.51A, the medical marijuana law, now allow "collective
SUMMARY gardens However portions of the law were vetoed by the Governor and possession and
distribution of cannabis remain a violation of federal law. Given the contradictory legal
framework and the lack of clarity in RCW 69.51A the City needs additional time to study
the issue and analyze the impacts. The Council is being asked to approve this emergency
ordinance and schedule a public hearing for October 3, 2011.
RE /IE\wI;D BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: N/A COMMITTEE CHAIR:
RECOMMENDATIONS:
SPONSOR /ADMIN. Department of Community Development
COMMIT 'TEE None emergency action
COST IMPACT FUND SOURCE
EXPENDITURE REOUIRF_D AMOUNT BUDGETED APPROPRIATION REQUIRED
$0
Fund Source:
Comments: No direct expenses are expected, work plan will be performed with existing staff
MTG. DATE 1 RECORD OF COUNCIL ACTION
8/15/11
MTG. DATE I ATTACHMENTS
8/15/11 Informational Memorandum dated 8/8/11
Moratorium Ordinance
WCIA Risk Management Bulletin
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City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Tukwila City Council
FROM: Jack Pace, Community Development Director
DATE: August 8, 2011
SUBJECT: Moratorium on Medical Cannabis Collective Gardens and Dispensaries
ISSUE
Should a moratorium on medical cannabis collective gardens and dispensaries be enacted?
BACKGROUND
The voters of Washington State passed initiative Measure No. 692 on November 30, 1998
allowing for the medical use of marijuana (cannabis). This has been codified as RCW Ch.
69.51A and created a limited defense to charges under state, not federal, law if the person
charged can demonstrate that he or she was a qualifying patient or designated provider. In
2007, the state legislature amended the law, and again in 2011, the state legislature passed a
third amendment to the law, portions of which the Governor vetoed. The newly amended law
took effect on July 22, 2011.
These recent amendments to RCW 69.51A change the scope and effect of the law affecting the
rights of qualifying patients and their designated providers. The law now allows "collective
gardens" that provide for growing and cultivating up to 45 plants to serve no more than 10
qualifying patients. The new law, however, clearly delegates to cities the authority to implement
zoning requirements, business licensing requirements, health and safety requirements, and
business taxes as those requirements and taxes relate to the production, processing, or
dispensing of medical marijuana. In particular, local regulations could address ambiguities
concerning the location and operation of collective gardens, and ensure that provisions related
to designated providers are not used to establish a de facto dispensary when the authority for
such uses was vetoed.
Despite this legislation the possession or distribution of cannabis has been and continues to be
a violation of state law pursuant to RCW 69.50 (Washington's Uniform Controlled Substances
Act), and federal law, through the Controlled Substances Act "CSA Washington's two U.S.
Attorneys state that marijuana is a Schedule I controlled substance under federal law and, as
such, "growing, distributing and possessing marijuana in any capacity, other than as part of a
federally authorized research program, is a violation of federal law regardless of state laws
permitting such activities." These U.S. Attorneys also concluded, "state employees who
conducted activities mandated by the Washington legislative proposals would not be immune
from liability under the CSA."
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INFORMATIONAL MEMO
Page 2
DISCUSSION
The Washington Cities Insurance Authority (WCIA) has issued an update to its earlier risk
management bulletin emphasizing the need for cities to proceed cautiously in this uncharted
area, see Attachment 2. Given the contradictory legal framework and the lack of clarity in RCW
69.51A the City of Tukwila needs additional time to study the issue and analyze the impacts of
allowing these uses and facilities in residential zones as well as impacts arising from the
proximity of these uses and facilities to schools, daycares, parks, religious and cultural facilities,
jails and courthouses.
Establishing a moratorium on these uses would allow the City time to perform this analysis and
develop a legally sound approach to the issue. Within 60 days of adoption of the moratorium the
City is required to hold a public hearing.
RECOMMENDATION
The Council is being asked to approve this ordinance for a 12 -month period, which will become
effective immediately, at the August 15, 2011 Regular Meeting. A public hearing will be
conducted on October 3, 2011.
ATTACHMENTS
Moratorium Ordinance
WCIA Risk Management Bulletin
WA2011 Info Memos \MarijuanaCollectiveGardens.doc
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City of TUkwila
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ADOPTING A 12 -MONTH MORATORIUM WITHIN THE
CITY OF TUKWILA ON THE ESTABLISHMENT, LOCATION, OPERATION,
LICENSING, MAINTENANCE OR CONTINUATION OF MEDICAL
CANNABIS COLLECTIVE GARDENS OR DISPENSARIES, ASSERTED
TO BE AUTHORIZED OR ACTUALLY AUTHORIZED UNDER E2SSB
5073, CHAPTER 181, LAWS OF 2011, CHAPTER 69.51A REVISED CODE
OF WASHINGTON, OR ANY OTHER LAWS OF THE STATE OF
WASHINGTON; SETTING A DATE FOR A PUBLIC HEARING ON THE
MORATORIUM; PROVIDING FOR SEVERABILITY; AND DECLARING AN
EMERGENCY AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the possession or distribution of cannabis (marijuana) has been and
continues to be a violation of state law pursuant to Chapter 69.50 Revised Code of
Washington (Washington's Uniform Controlled Substances Act), and federal law,
through the Controlled Substances Act "CSA" and
WHEREAS, Initiative Measure No. 692, approved by the voters of Washington
State on November 30, 1998, and now codified as Chapter 69.51A RCW, created a
limited defense to marijuana charges under state, not federal, law if the person charged
could demonstrate that he or she was a qualifying patient or designated provider as
those terms are defined in Ch. 69.51A RCW; and in 2007, the state legislature
amended the law; and in 2011 the state legislature passed a third amendment to the
law, E2SSB 5073, Chapter 181, Laws of 2011, portions of which the Governor vetoed,
and the newly amended law took effect on July 22, 2011; and
WHEREAS, prior to issuing her partial veto, the Governor received a letter signed
by Washington's two U.S. Attorneys, Michael Ormsby and Jennifer Durkan, and in their
letter they wrote that marijuana is a Schedule I controlled substance under federal law
and, as such, "growing, distributing and possessing marijuana in any capacity, other
than as part of a federally authorized research program, is a violation of federal law
regardless of state laws permitting such activities;" and these U.S. Attorneys also
concluded, "state employees who conducted activities mandated by the Washington
legislative proposals would not be immune from liability under the CSA and
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WHEREAS, because the Governor vetoed 36 of the 58 sections of the legislature's
bill amending Chapter 69.51A RCW, the law, in its final form, understandably has
inconsistencies and ambiguities; for example, certain sections that were not vetoed
make reference to other sections that were vetoed; and
WHEREAS, the recent amendments to Chapter 69.51A RCW change the scope
and effect of the law, including new sections that affect the rights of qualifying patients
and their designated providers; and the law now allows "collective gardens" that provide
for growing and cultivating up to 45 plants to serve no more than 10 qualifying patients,
and provides other changes to the rights and responsibilities of medical marijuana
patients and their designated providers; and
WHEREAS, the new law, however, clearly delegates to cities the authority to
implement zoning requirements, business licensing requirements, health and safety
requirements, and business taxes as those requirements and taxes relate to the
production, processing, or dispensing of medical marijuana; and in particular, local
regulations could address ambiguities concerning the location and operation of
collective gardens, and ensure that provisions related to designated providers are not
used to establish a de facto dispensary when the authority for such uses was vetoed;
and
WHEREAS, the City Council requires time to conduct appropriate research to
understand the extent of the changes provided in the new law, to analyze impacts and
potential liabilities under federal law, and to determine an appropriate regulatory
framework for any new uses that are allowed under these laws; and
WHEREAS, the City must ensure that proposed locations for these operations are
appropriate and that any potential secondary impacts arising from the operation of
these uses or facilities are minimized and mitigated; and these secondary impacts may
include, but are not limited to, burglaries associated with the cash and marijuana
maintained on the site, or an increase of other illegal activities, such as drug use, within
the vicinity of these dispensaries; and
WHEREAS, in particular, and without limitation, staff should analyze the impacts of
allowing these uses and facilities in residential zones as well as impacts arising from
the proximity of these uses and facilities to schools, daycares, parks, religious and
cultural facilities, jails and courthouses; and accordingly, the City Council finds that a
zoning, licensing, and permitting moratorium should be established pending local
review of appropriate locations and design requirements of these operations and
impacts of the newly amended law and its interaction with federal law; and
WHEREAS, although the City Council determines that a moratorium is necessary
for the reasons established above, the City Council emphasizes that it understands the
needs of persons suffering from debilitating or terminal conditions, as well as the
benefits that approved medical use of marijuana may provide these persons;
nevertheless, given the complex legal and regulatory framework surrounding this issue,
a moratorium remains necessary until the City Council can adequately address the
competing interests at play;
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Preliminary Findings. The recitals and findings set forth above are
hereby adopted as the City Council's preliminary findings in support of the moratorium
imposed by this ordinance. The City Council may, in its discretion, adopt additional
findings at the conclusion of the public hearing referenced in Section 6 below.
Section 2. Moratorium Imposed. Pursuant to the provisions of Article 11,
Section 11 of the Washington State Constitution, RCW 35A.63.220, and RCW
36.70A.390, a moratorium is hereby enacted prohibiting within the City of Tukwila, the
establishment, location, operation, licensing, maintenance, or continuation of any
medical cannabis collective garden or any medical marijuana dispensary, whether for
profit or not for profit, asserted to be authorized or actually authorized under E2SSB
5073, Chapter 181, Laws of 2011, Chapter 69.51A RCW, or any other laws of the state
of Washington. No building permit, occupancy permit, or other development permit or
approval shall be issued for any of the purposes or activities listed above, and no
business license shall be granted or accepted while this moratorium is in effect. Any
land use permits, business licenses or other permits for any of these operations that are
issued as a result of error or by use of vague or deceptive descriptions during the
moratorium are null and void and without legal force or effect.
Section 3. Definitions. As used in this ordinance, the following terms have the
meanings set forth below:
A. "Medical marijuana dispensary" means any business, agency, organization,
cooperative, network, consultation operation, or other group or person, no matter how
described or defined, including its associated premises and equipment, which has for
its purpose or which is used to grow, select, measure, package, label, deliver, sell, or
otherwise transfer (for consideration or otherwise) marijuana for medical use. One
individual person who is the designated provider for only one qualified patient during
any 15 -day period and who complies with Chapter 69.51A RCW, shall not be deemed a
medical marijuana dispensary for the purposes of this moratorium.
B. "Medical marijuana collective garden" means a group of qualifying patients that
share responsibility for acquiring and supplying the resources required to produce and
process marijuana for medical use. Examples of collective garden resources would
include, without limitation, the following: property used for a collective garden; or
equipment, supplies, and labor necessary to plant, grow and harvest marijuana;
marijuana plants, seeds, and cuttings; and equipment, supplies, and labor necessary
for proper construction, plumbing, wiring, and ventilation of a garden of marijuana
plants. A medical marijuana collective garden shall satisfy the above definition
regardless of its formation, ownership, management, or operation as a business,
agency, organization, cooperative, network, consultation operation, group, or person.
One individual person who is the designated provider for only one qualified patient
during any 15 -day period and who complies with Chapter 69.51A RCW, or an individual
person who is a qualified patient and who complies with 69.51A RCW, shall not be
deemed a medical marijuana collective garden for the purposes of this moratorium.
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Section 4. No Non conforming Uses. No use that constitutes or purports to be a
medical marijuana dispensary or medical marijuana collective garden as those terms
are defined in this ordinance, that was engaged in that activity prior to the enactment of
this ordinance shall be deemed to have been a legally established use under the
provisions of the Tukwila Municipal Code and that use shall not be entitled to claim
legal non conforming status.
Section 5. Effective Period for Moratorium. The moratorium set forth in this
ordinance shall be in effect for a period of 12 months from the date this ordinance is
passed and shall automatically expire at the conclusion of that 12 -month period unless
the same is extended as provided in RCW 35A.63.220 and RCW 36.70A.390, or unless
terminated sooner by the City Council.
Section 6. Public Hearing. Pursuant to RCW 35A.63.220 and RCW 36.70A.390,
the City Council will hold a public hearing at the City Council's regular meeting at 7:00
p.m. in Council Chambers on October 3, 2011, or as soon thereafter as the business of
the City Council shall permit, and which date is no more than 60 days after the date of
adoption herein, in order to take public testimony and to consider adopting further
findings.
Section 7. Work Program. The Director of Community Development and /or
his /her designee is hereby authorized and directed to address issues related to
determining the legality of medical marijuana dispensaries, production facilities, and
processing facilities including but not limited to review of the pending dispute between
state and federal law enforcement authorities regarding the legality of medical
marijuana under any circumstances and notwithstanding the enactment by the
legislature of RCW 69.51A. In the event that such uses are ultimately determined to be
legal, the work program should also develop appropriate land use regulations pursuant
to the newly amended law for review and recommendation for inclusion in the zoning
regulations or other provisions of the Tukwila Municipal Code. The Finance Director
and /or his /her designee is hereby authorized and directed to develop appropriate
business licensing and other regulations pursuant to the newly amended law for review
and recommendation for inclusion in the zoning regulations or other provisions of the
Tukwila Municipal Code.
Section 8. Severability. If any section, subsection, paragraph, sentence, clause
or phrase of this ordinance or its application to any person or situation should be held to
be invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 9. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section /subsection numbering.
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Section 10. Effective Date. The City Council hereby finds and declares that there
is a potential that persons seeking to engage in marijuana collective garden or
dispensary uses could claim vesting under E2SSB 5073 and /or that the presence of
any marijuana collective gardens in the City of Tukwila could have negative secondary
effects if not first addressed by adequate and appropriate regulations, and that,
therefore, an emergency exists which necessitates that this ordinance become effective
immediately in order to preserve the public health, safety and welfare. This ordinance
shall become effective immediately upon passage. The City Clerk is directed to publish
a summary of this ordinance at the earliest possible publication date.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON,
at a Regular Meeting thereof this day of
2011.
ATTEST /AUTH ENTICATED:
Christy O'Flaherty, CMC, City Clerk
APPROVED AS TO FORM BY
Shelley M. Kerslake, City Attorney
Jim Haggerton, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
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Risk Management Bulletin
Administration #46
June, 2011
Medical Mariivana Law: Post 2011 Washington Legislative Session
By Mark R. Bucklin, WCIA General Counsel
Keating Bucklin McCormack, Inc. P.S.
A WCIA Risk Management Bulletin was issued 12/28/2010 addressing the then existing state of
the law regarding medical marijuana in Washington and the rise of business license applications
for medical marijuana "Dispensaries" across the state. In short, the Bulletin concluded that such
"dispensaries" were not legal under the law at that time as they inevitably involved the
possession and sale of marijuana not allowed by law. It was recommended that business license
applications for dispensaries be denied or revoked. The Bulletin predicted that the topic would
be addressed in the 2011 Washington State Legislative Session and changes could occur. The
topic did arise, legislation was passed and then the legislation was partially vetoed by the
Governor. This Bulletin Supplement will address the law as it now exists, post 2011 Legislative
Session.
In April 2011, the Washington State Legislature passed Engrossed Second Substitute Senate Bill
5073 through both houses amending Initiative 692 and sent it on to the Governor for signature
into law. The bill, as passed, offered sweeping changes to the medical marijuana law in
Washington and would have put in place a regulatory licensing scheme for the growth and
distribution of medical marijuana through licensed dispensaries to "qualified patients" who had
been designated as such by their "health care professionals." The production and sale of medical
cannabis and the dispensing standards would have been under regulation by the State
Department of Health. Dispensers could sell seeds, plants, usable cannabis, and cannabis
products directly to qualifying patients. The bill also provided for optional "collective gardens"
where individuals who were qualified patients, or their individual providers, could grow for their
own use medical marijuana collectively so long as the participants did not exceed 10 in number
or more that 15 plants per person and up to 45 plants total.
Before the Governor could sign the bill, the U.S. Attorney's in Seattle and Spokane sent the
Governor an advisory letter, (which she had solicited) approved by U.S. Attorney General
Holder, warning and advising the Governor that substantial portions of the bill approved by the
Legislature was in direct conflict with Federal Drug Laws and that state employees could be at
risk of federal prosecution for aiding and abetting illegal drug possession and sale if they
processed licenses for production and sale of medical cannabis under the proposed new bill. The
letter of April 14, 2011 to Governor Gregoire signed by U.S Attorney Jenny Durkin and U.S.
Attorney Michael Ormsby stated, in part:
"The Washington legislative proposals will create a licensing scheme that permits large
scale marijuana cultivation and distribution. This would authorize conduct contrary to
federal law and thus, would undermine the federal government's efforts to regulate the
possession, manufacturing and trafficking of controlled substance. Accordingly, the
Department could consider civil and criminal legal remedies regarding those who set up
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marijuana growing facilities and dispensaries as they will be doing so in violation of federal
law. Others who knowingly facilitate the action of the licensees, including property owners,
landlords, and financier should also know that their conduct violates federal law. In
addition, state employees who conducted activities mandated by the Washington legislative
nroposals would not be immune from liability under the CSA (controlled substances act)."
(emphasis added).'
Citing this letter, Governor Gregoire issued a partial veto of ESSSB 5073 on April 29, 2011.
The Governor vetoed all the new sections dealing with the state licensing of production and
licensed dispensing of medical marijuana. The portions of the bill not vetoed and signed by
Governor Gregoire amend the original medical marijuana Initiative 692 passed by the people.
So, the question becomes: What is left of ESSSB 5073 after the line item veto of the Governor?
What Are the Significant Changes in the Law Under ESSSB 5073 as Signed?
1. New stronger protections to qualified medical marijuana users and providers from
criminal arrest, prosecution and conviction.
Previously qualified users and providers were given an affirmative defense to assert at
trial if they were charged with a marijuana crime. Now, sec. 401 of the new act provides:
"Sec. 401 The medical use of cannabis in accordance with the terms and conditions
of this chapter does not constitute a crime and a qualifying patient or designated
provider in compliance with the terms and conditions of this chapter may not be
arrested, prosecuted, or subject to other criminal sanctions or civil
consequences, for possession, manufacture, or delivery of, or for possession with
intent to manufacture or deliver, cannabis under state law, or have real or
personal property seized or forfeited
Section 102 of the new act states:
"(a) Qualifying patients with terminal or debilitating ((illnesses)) medical conditions
who, in the judgment of their health care professionals, may benefit from the medical
use of ((marijuana)) cannabis, shall not be ((found guilty of a crime under state
law for their possession and limited use of marijuana)) arrested, prosecuted, or
subject to other criminal sanctions or civil consequences under state law based
solely on their medical use of cannabis, notwithstanding any other provision of law;
(b) Persons who act as designated providers to such patients shall also not be ((found
guilty of a crime under state law for)) arrested, prosecuted, or subject to other
criminal sanctions or civil consequences under state law, notwithstanding any other
provision of law, based solely on their assisting with the medical use of ((marijuana))
cannabis;
I Letter attached
Partial veto letter attached
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Author's Supplemental Note: Did the act, as partially vetoed, really make medical
marijuana possession and use exempt from arrest and prosecution? It has been
pointed out that section 401 may have been intended to only relate to those qualified
users who obtained registry cards provided in Sec. 401(2) and Sec. 901. The
Governor vetoed Sec. 901 which would have created the State Registry system. Does
the Sec. 102's similar language stand alone and reach the same result? If not, then the
language of Sec. 402(1) and (2) which provides an affirmative defense to criminal
arrest and charges for qualified patients who do not have registry cai may be the
operative law. Court decisions may have to clarify this issue.
2. Health Care Professionals are given greater protection but with greater restrictions
regarding issuing "valid documentation" to qualifying patients authorizing medical
use of cannabis.
a. Health Care Professionals have been given the same protections as qualifying
patients and providers as noted above. (Sec 301(1))
b. The new act states:
"Sec. 301(2)(a) A health care professional may only provide a patient with valid
documentation authorizing the medical use of cannabis or register the patient with
the registry established in section 901 of this act if he or she has a newly initiated
or existing documented relationship with the patient, as a primary care provider or
a specialist, relating to the diagnosis and ongoing treatment or monitoring of the
patient's terminal or debilitating medical condition, and only after:
(1) Completing a physical examination of the patient as appropriate, based on
the patient's condition and age,
(ii) Documenting the terminal or debilitating medical condition of the patient
in the patient's medical record and that the patient may benefit from treatment
of this condition or its symptoms with medical use of cannabis;
(iii) Informing the patient of other options for treating the terminal or
debilitating medical condition; and
(iv) Documenting other measures attempted to treat the terminal or
debilitating medical condition that do not involve the medical use of cannabis.
(b) A health care professional shall not:
(1) Accept, solicit, or offer any form of pecuniary remuneration from or to a
licensed dispenser, licensed producer, or licensed processor of cannabis
products;
(ii) Offer a discount or any other thing of value to a qualifying patient who is a
customer of, or agrees to be a customer of, a particular licensed dispenser,
licensed producer, or licensed processor of cannabis products;
(iii) Examine or offer to examine a patient for purposes of diagnosing a
terminal or debilitating medical condition at a location where cannabis is
produced, processed, or dispensed;
(iv) Have a business or practice which consists solely of authorizing the
medical use of cannabis;
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(v) Include any statement or reference, visual or otherwise, on the
medical use of cannabis in any advertisement for his or her business or
practice; or
(vi) Hold an economic interest in an enterprise that produces, processes,
or dispenses cannabis if the health care professional authorizes the
medical use of cannabis.
(3) A violation of any provision of subsection (2) of this section constitutes
unprofessional conduct under chapter 18.130 RCW."
3. Use of medical cannabis at work or in jails requires no accommodation and may be
prohibited. Drug free work places may be continued. Medical insurance is not
required to cover medical cannabis. Medical cannabis may not be smoked in public
but it is now an infraction, not a crime. Persons under supervised probation or
parole may be prohibited from the use medical cannabis. The use of medical
cannabis is not a defense to Driving Under the Influence.
"Sec. 501. RCW 69.51A.060 and 2010 c 284 s 4 are each amended to read as
follows:
(1) It shall be a ((misdemeanor)) class 3 civil infraction to use or display
medical ((marijuana)) cannabis in a manner or place which is open to the
view of the general public.
(2) Nothing in this chapter ((requires any health insurance provider)) establishes a
right of care as a covered benefit or requires any state purchased health care as
defined in RCW 41.05.011 or other health carrier or health plan as defined in Title
48 RCW to be liable for any claim for reimbursement for the medical use of
((marijuana)) cannabis. Such entities may enact coverage or noncoverage criteria
or related policies for payment or nonpayment of medical cannabis in their sole
discretion.
(3) Nothing in this chapter requires any health care professional to authorize the
medical use of ((medical marijuana)) cannabis for a patient.
(4) Nothing in this chapter requires any accommodation of any on- site medical
use of ((marijuana)) cannabis in any place of employment, in any school bus or on
any school grounds, in any youth center, in any correctional facility, or smoking
((medical marijuana)) cannabis in any public place ((as that term is defined in
RCW 70.160.020)) or hotel or motel.
(5) Nothing in this chapter authorizes the use of medical cannabis by any person
who is subject to the Washington code of military justice in chapter 38.38 RCW.
(6) Employers may establish drug -free work policies. Nothing in this chapter
requires an accommodation for the medical use of cannabis if an employer has a
drug -free work place."
"Sec. 1105. (1)(a) The arrest and prosecution protections established in section
401 of this act may not be asserted in a supervision revocation or violation
hearing by a person who is supervised by a corrections agency or department,
including local governments or jails, that has determined that the terms of this
section are inconsistent with and contrary to his or her supervision.
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(b) The affirmative defenses established in sections 402, 405, 406, and 407 of this
act may not be asserted in a supervision revocation or violation hearing by a
person who is supervised by a corrections agency or department, including local
governments or jails, that has determined that the terms of this section are
inconsistent with and contrary to his or her supervision.
(2) The provisions of RCW 69.51A.040 and sections 403 and 413 of this act do
not apply to a person who is supervised for a criminal conviction by a corrections
agency or department, including local governments or jails, that has determined
that the terms of this chapter are inconsistent with and contrary to his or her
supervision.
(3) A person may not be licensed as a licensed producer, licensed processor of
cannabis products, or a licensed dispenser under section 601, 602, or 701 of this
act if he or she is supervised for a criminal conviction by a corrections agency or
department, including local governments or jails, that has determined that
licensure is inconsistent with and contrary to his or her supervision."
"Sec. 501(8) (8) No person shall be entitled to claim the ((affirmative defense
provided in RCW 69.51A.040)) protection from arrest and prosecution under
RCW 69.51A.040 or the affirmative defense under section 402 of this act for
engaging in the medical use of ((marijuana)) cannabis in a way that endangers the
health or well -being of any person through the use of a motorized vehicle on a
street, road, or highway, including violations of RCW 46.61.502 or 46.61.504, or
equivalent local ordinances."
4. A "designated provider" who has been terminated by a "qualified patient" cannot
become a designated provider for another qualified patient until 15 days have
elapsed.
"Sec. 404. (1) A qualifying patient may revoke his or her designation of a specific
provider and designate a different provider at any time. A revocation of
designation must be in writing, signed and dated. The protections of this chapter
cease to apply to a person who has served as a designated provider to a qualifying
patient seventy -two hours after receipt of that patient's revocation of his or her
designation.
(2) A person may stop serving as a designated provider to a given qualifying
patient at any time. However, that person may not begin serving as a
designated provider to a different qualifying patient until fifteen days have
elapsed from the date the last qualifying patient designated him or her to
serve as a provider."
5. Qualifying patients may, under restrictions, create "collective gardens" to produce
medical cannabis.
"Sec. 403. (l) Qualifying patients may create and participate in collective
gardens for the purpose of producing, processing, transporting, and delivering
cannabis for medical use subject to the following conditions:
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(a) No more than ten qualifying patients may participate in a single
collective garden at any time;
(b) A collective garden may contain no more than fifteen plants per patient
up to a total of forty -five plants;
(c) A collective garden may contain no more than twenty -four ounces of
useable cannabis per patient up to a total of seventy -two ounces of
useable cannabis;
(d) A copy of each qualifying patient's valid documentation or proof of
registration with the registry established in section 901 of this act, including a
copy of the patient's proof of identity, must be available at all times on
the premises of the collective garden; and
(e) No useable cannabis from the collective garden is delivered to anyone
other than one of the qualifying patients participating in the collective garden.
(2) For purposes of this section, the creation of a "collective garden" means
qualifying patients sharing responsibility for acquiring and supplying the
resources required to produce and process cannabis for medical use such as, for
example, a location for a collective garden; equipment, supplies, and labor
necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and
cuttings; and equipment, supplies, and labor necessary for proper construction,
plumbing, wiring, and ventilation of a garden of cannabis plants.
(3) A person who knowingly violates a provision of subsection (1) of this section
is not entitled to the protections of this chapter."
(Author's Note: Sec 501(1) makes the public disalav of medical cannabis a
civil infraction and this would presumably apply to the display of medical
cannabis in a collective garden hence some sort of screening from public view
seems to be built into the act.)
G. Cities and Counties may but are not required to, zone, license, regulate and tax the
production, processing and dispensing of cannabis. This would appear to be now
limited to collective gardens since that is the only new activity allowed under the act
and individual single production of medical cannabis by a qualified user or
provider.
"Sec. 1102. (1) Cities and towns may adopt and enforce any of the following
pertaining to the production, processing, or dispensing of cannabis or cannabis
products within their jurisdiction: Zoning requirements, business licensing
requirements, health and safety requirements, and business taxes. Nothing in this
act is intended to limit the authority of cities and towns to impose zoning
requirements or other conditions upon licensed dispensers, so long as such
requirements do not preclude the possibility of siting licensed dispensers within
the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not
required to adopt zoning to accommodate licensed dispensers.
(2) Counties may adopt and enforce any of the following pertaining to the
production, processing, or dispensing of cannabis or cannabis products within
their jurisdiction in locations outside of the corporate limits of any city or town:
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Zoning requirements, business licensing requirements, and health and safety
requirements. Nothing in this act is intended to limit the authority of counties to
impose zoning requirements or other conditions upon licensed dispensers, so long
as such requirements do not preclude the possibility of siting licensed dispensers
within the jurisdiction. If the jurisdiction has no commercial zones, the
jurisdiction is not required to adopt zoning to accommodate licensed dispensers."
(Author's Note: The Governor vetoed all other sections of the act that would
have created legal licensed dispensers of medical cannabis so presumably the
language in this section addressing the zoning of licensed dispensers is null
and void.)
7. Police and local jurisdictions are given limited immunity under the act for good
faith actions.
"Sec. 1101. (1) No civil or criminal liability may be imposed by any court on the
state or its officers and employees for actions taken in good faith under this
chapter and within the scope of their assigned duties.
(2) No civil or criminal liability may be imposed by any court on cities, towns,
and counties or other municipalities and their officers and employees for actions
taken in good faith under this chapter and within the scope of their assigned
duties."
Challenges and Issues for Local Government Under the New Act
1. What to do with existing medical marijuana /cannabis dispensaries and business
license applications for the same?
As previously noted, the Governor's line item veto took out all provisions of the
law that would have made dispensaries licensed and legal. Hence the law remains
the same as before and there is no credible argument that medical cannabis
dispensaries that sell cannabis are legal under state or federal law. (See prior
WCIA Bulletin of 12/28 /2010 Medical Mariivana Dispensaries -Are Thev
Legal The sale of mariivana in the State of Washington remains illeLyal
and subiect to criminal prosecution. (RCW 69.50.401 410.) Nothing in the
new act makes the sale of medical marijuana/cannabis legal.
Existing dispensaries that are selling marijuana/cannabis are subject to police
investigation, arrest and prosecution. Priority of enforcement is up to the local
jurisdictions and decisions on resource allocation.
Pending or new applications for business licenses dispensaries of medical
cannabis should be denied as illegal businesses if there is any evidence that the
sale of cannabis is part of the operational scheme or business plan.
2. Should local governmental entities do zoning or zoning moratoriums regarding
medical marijuana /cannabis dispensaries?
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There does not appear to be any current urgency to do so as the legislation that
would have allowed legal dispensaries starting in 2012 has been vetoed.
However, the political backers of ESSSB 5073 have vowed they will come back
with a new proposal in the next legislative session. Preemptive zoning in
anticipation that someday dispensaries may become legal under state law is a
consideration for local jurisdictions that may be concerned about a future
applicant becoming vested to a site that is inconsistent with the overall zoning
scheme of the jurisdiction.
3. Should local jurisdictions get involved in the zoning, regulation or licensing of
"collective gardens
This is a difficult issue. The new act does not require any local action but does
allow it under Sec. 1102. The possession of marijuana for any reason under
federal law may be a crime and the federal law does not recognize exceptions for
medical use of cannabis and marijuana except in authorized clinical situations.
Hence, an argument can be made that if local jurisdictions specifically allow,
license and regulate collective marijuana gardens they and the employees
executing the laws could run a fowl of the U.S. Attorney warnings expressed in
letter of April 14, 201 delivered to Governor Gregoire. They could be viewed as
aiding and abetting a violation of the federal controlled substances act. Some may
argue the threat is remote but no one can say it is impossible.
The other side of the argument is that unregulated and uncontrolled collective
gardens could become a public safety threat and therefore regulation and licensing
is a means of reducing the threat. Under the new law collective gardens may be
planted and marijuana grown by qualified patients of up to ten in number. There
are no provisions in the state law as to where in a local jurisdiction such gardens
may be started nor is there any provisions for fencing, screening, security or
safety. It is easy to envision that such collective gardens could become the locus
of thefts of marijuana plants and finished product and potentially violent
confrontations could occur. Collective gardens could be started next to schools
and churches. Some citizens may not appreciate relatively large scale open
marijuana cultivation next to their back yards, businesses, churches or schools.
There could be political pressure on local elected officials to regulate and license
cannabis production via "collective gardens." They may demand regulation and
licensing under the authority of Sec. 1102 "Cities and towns may adopt and
enforce any of the following pertaining to the production, processing, or
dispensing of cannabis or cannabis products within their jurisdiction: Zoning
requirements, business licensing requirements, health and safety
requirements, and business taxes."
(Author's Note: Business taxes on collective gardens is likely not legal as
"sales" of medical cannabis is not authorized by the partially vetoed act.)
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Local police authorities may feel that zoning, licensing and regulation of
collective gardens would assist them in tracking and distinguishing legal grow
operations from illegal ones.
There does not appear to be any express authority or provision in the new act
that would allow the outright banning of collective gardens by local
jurisdictions. Sec. 401 of the act directly empowers qualified users to start and
maintain collective gardens. This would appear to preempt local authorities from
doing outright bans on collective gardens on private property. Likewise, local
jurisdictions could not ban individual qualified patients or their providers from
cultivation of medical marijuana/cannabis on private property or at their homes so
long as they have the proper documentation and limit their possession to 15 plants
or 24 ounces of useable cannabis.
If the decision is made to zone, license and regulate collective gardens by the
local jurisdiction care will be need to make sure that an appropriate legislative
history is developed to document the negative impacts of unregulated collective
gardens and to narrowly fashion regulations tailored to address those negative
impacts. Failure to do so could lead to challenges that the regulations or zoning
violated substantive due process protections under the Constitution. Members are
advised to work closely with their legal counsel on these issues.
If Members think that zoning regulation and licensing of collective gardens is in
their best interest they may wish to quickly impose a moratorium prohibiting their
establishment for a brief period of time to develop the necessary legislative
history and to adopt appropriate ordinances for zoning. licensing and
regulating collective gardens.
WC11A strongly advises against Members allowing use of public property or
public "pea patches" for use as "collective gardens" where medical
marijuana /cannabis is grown. It would expose the jurisdiction to
unnecessary liability claims as a landlord under premises liability law if
other legal users of the public lands were injured due to criminal
activity /thefts potentially associated with the production of the cannabis
products.
Conclusion
The truncated and partially vetoed version of ESSSB 5073 signed into law by Governor Gregoire
becomes effective on July 22, 2011. Medical marijuana/cannabis dispensaries that sell cannabis
products remain illegal. The fact that the Legislature went to great lengths to try and make them
legal and then failed by virtue of the Governor's veto; re- enforces the argument that they were
never legal. Nevertheless, proponents of medical cannabis will continue to argue to the contrary
and will continue to urge novel schemes and models for the distribution of medical cannabis to
local jurisdictions in hopes of obtaining business licenses and therefore apparent legitimacy. It is
suggested that any such new model be closely analyzed to determine where the profit may be
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made in the business model. If it ultimately involves a sale of marijuana or cannabis products it
is likely illegal under both state and federal law.
The political battle promises to be carried on in the future. Governor Gregoire's signing letter
partially vetoing ESSSB 5073 states she remains open to legislation that would exempt
qualifying patients and their providers from criminal penalties when they join a cooperative to
distribute medical marijuana. The proponents of ESSSB 5073 promise to return in the next
legislative session to have another go at it. It is not clear how any future effort will have success
as long as the federal law remains intact and continues to criminalize possession and sale of
marijuana regardless of its designation as for medical treatment. Future case law may also
clarify or further obscure the picture. It appears the only certainty is more uncertainty as to what
future law in this area may develop.
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