Never Get out of This Maze

The state’s new medical marijuana law took effect Friday. But between the governor’s reckless partial veto, the unresolved state-federal conflict, and a state Attorney General who hides under his desk every time he hears the word ‘marijuana’, no one seems to have any idea exactly what the law does or doesn’t allow.

To give a brief illustration of how fucked up this is, here’s part of the new law [emphasis mine]:

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 for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, and investigating peace officers and law enforcement agencies maynot be held civilly liable for failure to seize cannabis in this circumstance, if:

…

(2) The qualifying patient or designated provider presents his or her proof of registration with the department of health, to any peace officer who questions the patient or provider regarding his or her medical use of cannabis;
(3) The qualifying patient or designated provider keeps a copy of his or her proof of registration with the registry established in section 901 of this act and the qualifying patient or designated provider’s contact information posted prominently next to any cannabis plants, cannabis products, or useable cannabis located at his or her residence;

One rather large problem here…section 901 and the registry were vetoed by the governor. So instead of finally having a class of patients protected from arrest, we still have a medical marijuana law that makes it impossible to avoid getting arrested by any police officer who decides to overrule your doctor’s recommendation.

Despite this, there’s a new section (1102) that still supposedly leaves the door open for cities like Seattle to allow for what this bill was supposed to do before Gregoire mutilated it: Regulate the distribution of medical marijuana.

(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.

But as I mentioned on Tuesday, defense attorney Douglas Hiatt thinks that this section is invalid. In his opinion, because there’s still only an affirmative defense (while all marijuana possession remains illegal at the state level), Seattle and other municipalities can’t regulate it. In his opinion, the state isn’t allowed to regulate what remains an illegal activity. Nick Licata, in a statement regarding the proposed regulations for Seattle dispensaries, appears to misstate Hiatt’s case [emphasis mine again]:

This ordinance is the City’s response to a bill passed by the Washington State Legislature earlier this year – and that will go into effect on July 22 – that permits cities to regulate and license the production, processing, or dispensing of cannabis products within their jurisdiction. Although my recent bill received a great deal of media coverage, the legislation will only make sure dispensaries across the city act like the businesses they are, and that we hold them accountable as such rather than only turning a blind eye.

This ordinance is a crucial step forward toward providing clarity for medical cannabis dispensaries in the area, particularly in wake of the new state law. While the federal government still prohibits the production, processing, dispensing, and possession of medical cannabis, responding to the state government’s new rules is a responsibility that will minimize the impact of changes to the roughly 25,000 Seattle medical cannabis users.

Some opponents of the legislation have questioned whether the City has the authority to regulate a federally prohibited substance, such as medical cannabis. The legislation in every way recognizes that there is a federal prohibition, but also takes the needed steps to ensure safety and basic standards of dispensaries in Seattle. Regardless of whether the business is illegal, we want to make sure it is not jeopardizing the rights, health or safety of the surrounding community, which is why this ordinance is so important.

That’s actually not what Hiatt is questioning. Hiatt is questioning whether Seattle can regulate a substance that remains illegal at the state level, not the federal level. Now I’m still not sure whether Hiatt’s opinion makes sense legally (although I’m aware that several attorneys strongly disagree with him), but it’s not good that no one even seems to understand what he’s even arguing. As another attorney I spoke to mentioned, this will eventually be decided in a courtroom – probably fairly soon – and it’s really hard to predict how any judge is going to interpret all this.

One thing that does seem to be clear about the law is that anyone setting up shop in Seattle (or any other tolerant city) to provide medical marijuana must abide by the framework of Section 403, which defines “collective gardens”. Thanks to the governor, simply selling medical marijuana to authorized patients remains illegal, so if folks want to set up a storefront, they’ll have to organize their business in a way that segments their customer base into 10-person cooperatives and ensure that people only get supplied with medicine from their own designated garden. With the City Council estimating that there are roughly 25,000 medical marijuana patients in the city, it could then require roughly 2,500 collective gardens to supply them all. Some of those could probably function independently in a private setting among acquaintances, but many others will likely require some entrepreneurial help organizing themselves. And it’s these large networks of patients and collective gardens that the city has an interest in regulating.

As I mentioned above, Douglas Hiatt is arguing that cities and towns can’t regulate it at all. And even if his argument has a legal basis, the politics of it are murky. Most cities want to make sure that marijuana distribution happens in a place that’s safe for both patients and the community as a whole. They’d love to have all this commerce happen in commercial and industrial areas. But if there’s an incentive to stay small enough as to not be seen as a “business”, people will strive for that. And this will inevitably lead to grow operations staying within residential areas and largely hidden. From a political standpoint, Hiatt thinks this will lead to people getting mad and demanding change. But it could also backfire and lead to futile attempts at moratoriums (maybe not in Seattle, but possibly elsewhere), which might also be against the law. No one knows.

Of course, the punch line to all of this (if you have to choose just one), is that Attorney General Rob McKenna – the gubernatorial hopeful who thinks that the individual health insurance mandate is an egregious abuse of federal power, but that the federal prohibition on marijuana is just dandy – is simply refusing to deal with any of this. When Liz Jones from KUOW contacted his office, they claimed that his office is not involved in the issue. And honestly, I have no idea if that’s a good thing or a bad thing at this point.