Washington Court Rejects Legal Rationale for Medical Marijuana Dispensaries, but That's Not Why Their Days Are Numbered


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A little-noticed state appeals court ruling issued a month ago rejected the main legal theory under which Washington's medical marijuana dispensaries operate. But that decision may not make much difference in practice, given the various other factors that will determine whether these businesses can continue to supply patients with marijuana—in particular, the views of local officials and state legislators.

To understand the decision's significance requires a little background on medical marijuana in Washington. In 1998 Washington voters approved Initiative 692, which created an affirmative defense against possession and cultivation charges for patients who use marijuana to treat "terminal or debilitating conditions" based on a medical recommendation. The law gave the same defense to "any designated primary caregiver who assists a qualifying patient in the medical use of marijuana." But it offered no clear option for patients who were not up to growing their own medicine and could not find someone willing to do it for them.

Until 2011 dispensaries in Washington operated based on a model in which a given seller became the temporary "designated provider" (as the role was renamed in 2007) for each patient who bought cannabis from him. That year the legislature finally approved a bill aimed at regulating the medical marijuana business. But Gov. Christine Gregoire vetoed most of the bill, citing advice from Jenny Durkan and Michael Ormsby, Washington's U.S. attorneys. In a letter to Gregoire, Durkan and Ormsby warned that licensing and regulating dispensaries would result in massive violations of the Controlled Substances Act (CSA), that they could respond with "civil and criminal legal remedies," and that "state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA."

Gregoire, who had solicited the U.S. attorneys' guidance and may have been looking for an excuse to veto the bill, interpreted that last sentence as a threat to prosecute state employees involved in licensing and regulating medical marijuana suppliers. She therefore vetoed all the provisions of the bill that would have put them in that position. At the same time, the governor signed into law two provisions that inadvertently created the current dispensary system.

One provision closed the "designated provider" loophole, saying providers had to wait 15 days before switching from one patient to another. The other provision let patients grow cannabis in "collective gardens" rather than buy it from the state-licensed outlets that were supposed to be the main source of medical marijuana. That provision, which allowed up to 10 patients and 45 plants per garden, became the new legal rationale for dispensaries. Today medical marijuana suppliers in Washington typically operate as collective gardens (or associations of collective gardens) with rotating memberships: When a patient enters a dispensary, he becomes a member for the length of the transaction.

State Sen. Jeanne Kohl-Welles (D-Seattle), the chief sponsor of the 2011 bill, says that system is "very different" from what she had in mind. "There's nothing in statute expressly allowing dispensaries or prohibiting them," she says. "There's been a lot of innovative interpretation." Martin Martinez, who in 1999 founded Life Vine, Washington's first medical marijuana collective, thinks "all of these dispensaries basically are abusing the law." But John Schochet, deputy chief of staff in the Seattle City Attorney's Office, says state appeals courts have approved the idea of collective gardens with rotating memberships. "I couldn't give you a clear answer as to whether it's illegal under criminal law," he says, but "no one's been convicted for selling marijuana illegally using a collective garden in King County," where Seattle is located.

At the end of March, however, the Court of Appeals for Division I upheld a ban on collective gardens in Kent, a city about 20 miles south of Seattle. The court ruled that the legality of collective gardens depends on a patient registry created by a provision of the 2011 law that Gregoire nixed. "As the plain language of the statute and the governor's veto message indicate," the court said, "collective gardens are not legal."

The decision nevertheless seems to leave patients who grow marijuana collectively with an affirmative defense. "This case probably doesn't mean anything," says Douglas Hiatt, a Seattle attorney who helped write the appeal brief. "Basically they were trying to punt. They were saying, 'The city can do this, but you're still going to have an affirmative defense.' And it's unclear how the city is going to move forward." When it comes to enforcing a ban with criminal penalties, Hiatt says, "You can't have different standards for a collective garden defense in Kent than you do in Spokane [which is in Division III]. It would be a huge equal protection violation."

Steve Sarich, president of the Cannabis Action Coalition, says he and the other plaintiffs in the case have not decided yet whether to appeal to the Washington Supreme Court. He agrees that the ruling does not affect the affirmative defense available to patients with medical recommendations. "There was nothing in the law that prohibited a collective garden prior to [the 2011 legislation]," he says. "What this did was [establish] additional protections for people growing collectively."

In any case, the viability of dispensaries has always hinged more on the attitudes of local officials (as well as federal prosecutors) than on the letter of the law. When it comes to the "collective garden" rationale for dispensaries, Hiatt says, King County Prosecuting Attorney Daniel Satterberg "essentially bought off on it. He hasn't brought any cases. What Satterberg knows is that they can't beat us in a jury trial in Seattle on medical marijuana. It's just not going to happen. So he's not interested in charging this stuff." As John Davis, who operates two dispensaries in Seattle, puts it, "It's not the law that's solid out here. It's the policy."

For years Seattle's policy has been to tolerate dispensaries. But that changed after voters approved I-502, the 2012 initiative that legalized recreational use and charged the Washington State Liquor Control Board with licensing and regulating marijuana growers and retailers. Last year the Seattle City Council approved an ordinance that limits dispensaries to 45 plants and 72 ounces per location unless they obtain state licenses by January 1, 2015. Washington does not currently license medical marijuana outlets, and the state legislature ended its 2014 session without agreeing on a bill to incorporate them into the new system. So unless the city council extends its deadline, dispensaries will be operating in violation of local zoning law.

Even if medical marijuana suppliers get a reprieve, state legislators may end up banning them in 2015, as several of the bills considered this year would have done. Opponents of the dispensaries cite the threat of a federal crackdown, noting that Durkan has called the current system "not tenable." Legislators also have an interest in maximizing marijuana tax revenue by eliminating businesses that otherwise would compete with state-licensed pot shops. "They're going to get rid of it all," Hiatt predicts. "It's gone. 

[story via Canna Law Blog; ruling text via Mark Kleiman]

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  1. “It’s not the law that’s solid out here. It’s the policy.”

    Normally, you’d think that would scare these people…

    It’s not the law, it’s just how guys currently in charge choose to apply it.

    Legislators also have an interest in maximizing marijuana tax revenue by eliminating businesses that otherwise would compete with state-licensed pot shops. “They’re going to get rid of it all,” Hiatt predicts. “It’s gone.

    All snark aside, do not underestimate how tangled, byzantine and complex freedom is in the state of Washington. And how limited by state caps on issued licenses for that freedom. Freedom also comes with production limits as well.

    As a university official recently said “This isn’t the 60s anymore.”

    You have no idea how true that is.

    1. As soon as the initiative passed and I heard that the State Liquor Board was put in charge of licensing stores and whatnot, I knew (I hoped not, but needed to be realistic) that this was going to be a clusterfuck. You can’t ever have gone into a now thankfully gone state run liquor store and not realize that. And the SLB scum are going to try and make themselves as integral to selling pot as they can so they don’t get thrown out on the asses by another initiative. Which means byzantine rules, cronyism, and more. All the good stuff.

      1. As soon as the initiative passed and I heard that the State Liquor Board was put in charge of licensing stores and whatnot, I knew (I hoped not, but needed to be realistic) that this was going to be a clusterfuck

        What’s unfortunate is how soon after the Liquor Board was rudely kicked out of the Liquor sales business that the MJ initiative came in.

        The SLB was very much in a ‘fuck you, citizens’ kind of mood (they had just leveled a FYTW tax of 20% on retail spirits) and this marijuana initiative had a fucking RIBBON on it.

        1. Yeah, that short time span between the privatization of the liquor stores and the MJ initiative really kept them going, the parasitic fucks. And I’m still astonished that people tolerate the 20.5% liquor tax PLUS the “volume” tax. It’s one thing if you buy $10 bottles of Bacardi, and quite another if you buy $50 bottles of craft gin.

          1. Here in MD, they just legalized Medical MJ and are allowing a few ‘select growers’. How much you want to wager that each of those growers have deep connections to O’Malley and his merry band of cronies. Fucking douchebags.

      2. Which means byzantine rules, cronyism, and more

        The very existence of our current form of government, virtually guarantees that this comes with every new move that they make.

        Long gone is anything that is done for the common good. Our government exists solely for the benefit of people like the Clintons, Bushes, and all the other criminal gangs and their minions that have taken over the country.

        Anyone who is more afraid of being killed by foreign terrorists than by our own government, or more afraid of being robbed by a burglar by our own government, is something more sad than just naive and ignorant.

        1. What blows my mind is that people just sit back and take it. But I guess that’s partly a result of having enough prosperity that even when they rob us blind we still have a lot, and partly a result of the politicians and other assorted scum getting better at giving out free shit in the right places to keep everybody afraid that their free shit will get cut if any free shit gets cut.

          It’s my contention that the politicians have been getting better at what they do (retaining power, stealing, playing off cronies, etc.) over the years; or it’s not that they’re getting better, it’s that people are using the internet to reinforce partisanship so much that nothing a politician does matters any more, only what TEAM they’re on, and so they can get away with outrageous shit and still have their moronic sheep defenders vote for them.

          1. Rare is the lover of liberty, today. Or apparently, even they who are aware of it, at all.

            It happened one time, over 200 years ago, and then people went to sleep, grew prosperous and complacent, like you said.

            Everyone doesn’t need to wake up and get educated and care, only ‘enough’ people have to.

  2. Wellpoint Boosts Profit Forecast On Younger, Larger ACA Enrollment
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    Wellpoint (WLP), one of the nation’s largest health insurance companies, added 1.3 million more subscribers across its government and commercial businesses thanks in large part to the Affordable Care Act.

    Wellpoint now says it expects its medical enrollment to grow for the full year by 1.3 million to 1.4 million members, including more than 400,000 that came from government-run exchanges in the first quarter, according to the company’s earning report today. Wellpoint also raised its earnings per share forecast to “greater than $8.40 per share.”

    CRONY CAPITALISM!…..nrollment/

    1. The improved forecast is the latest in a parade of rosy financial projections from health insurance companies benefitting from the health law. Other insurers doing well include UnitedHealth Group UNH -0.21% (UNH), Humana HUM +0.64% (HUM), Cigna CI +2.81% (CI) and Aetna AET +1.41% (AET).


      1. The improved forecast is the latest in a parade of rosy financial projections from health insurance companies benefitting from the health law.

        Funny how Obama demanding that every American by their products or be thrown into jail does that.

      2. Yes, we already know that you’re a huge fan of cronyism and total brown noser of those who reap profits from it by stealing from everyone else that is not politically connected.

        Now go suck some crony dick and be gone, you fucking moron.

  3. Underground Website Used for Black Market Drug Sales Bigger Than The Original, Report Says


    Like the original Silk Road, the new site thrives on a dark underbelly of the internet often navigated by computer users with TOR, software that enables users to browse the Internet anonymously for purposes both legitimate and, in this case, illegitimate. According to federal court filings in the case against Ulbricht, the original site served as a marketplace where drug dealers are connected with buyers and have exchanged shipments of drugs for hundreds of millions of dollars-worth of Bitcoin, a type of online currency.


    1. You’d have to have some stones to operate a site like that, considering all the heavies on Silk road are looking at life in a Federal lockup.

      1. Uh, I’d take the potential arrest for earning 3-5% of every sale off of 13,000 pending sales.

        Feds probably didn’t even get the right guy to start with, choosing to just “arrest -somebody-” to save face.

  4. Rumple Stillskin said no way dude.

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