A recent ruling by the Washington State Court of Appeals in Cannabis Action Coalition v. City of Kent has declared collective medical marijuana gardens illegal because they can only consist of registered medical marijuana patients and Washington State has no medical marijuana registry.
Confused? That’s understandable, some background is in order.
Washington State has always had a loosely written medical marijuana law. Passed in 1998, the law does not actually provide any arrest protections for medical marijuana patients. Unlike any medical marijuana state but California, there is no statewide registry of medical marijuana patients. There are no Washington State medical marijuana cards, only doctor’s recommendations typed on tamper-proof paper. Washington State defines a fairly standard set of conditions to qualify for the recommendation, but it remains only an affirmative defense in court to charges of possession and/or cultivation -- patients can still be arrested.
Initially, Washington didn’t even define how much marijuana a patient could possess and cultivate, referring only to a “60-day supply.” That supply turned out to be fairly generous in western areas like Seattle and mighty low in eastern areas like Kennewick, depending on the attitude of law enforcement toward medical marijuana. Eventually, that 60-day supply got defined as 24 ounces (a pound and a half!) and 15 plants -- the greatest statewide limits in the country.
But there still remained the problem of where to buy marijuana if you couldn’t or wouldn’t grow it. That’s where entrepreneurs stepped in with a creative interpretation of the “designated provider” (caregiver) portions of the law and the activists were more than happy to help. A caregiver, who could only serve one patient at a time, was legally allowed to assist their patient with the use of medical marijuana. So, entrepreneurs opened storefront dispensaries. As a customer (patient) approached the counter, they would sign a note designating the clerk at the counter as their “designated provider.” The clerk would offer some marijuana, free of charge, to the customer, who would then, out of the kindness of his heart, donate some money to the clerk to reimburse his costs of production. Then the customer would sign a note revoking the clerk’s status as “designated provider” so that the next customer in line could sign up that clerk as “designated provider. See? That’s not a clerk at a dispensary…that’s a “designated provider serving only one patient at one time.”
This plainly illegal operation of dispensaries led to some raids and much anger from the medical activist community. There had to be some way of meeting the need for dispensaries. Soon, one of their top legislators had written a bill, SB 5073, which would finally bring some order to the medical marijuana market in Washington. It clearly defined dispensaries and created a voluntary statewide patient registry with medical marijuana cards. It also defined patient collective gardens so 10 patients could legitimately pool resources to cultivate and harvest up to 45 marijuana plants.
But then the US Attorneys on the Eastern and Western districts of the state cried foul. They did not want to see the legalization of dispensaries and threatened the then-Governor Christine Gregoire that any state employees involved with the aiding and abetting of federally illegal marijuana commerce would be brought up on federal charges. Gregoire used her power of line-item veto to strike the sections of the new law that created dispensaries and a registry, but in a nod to the needs of legitimate patients, kept the portions that established the 10-person collective gardens.
There was also established a 15-day waiting period before a “designated provider” could switch patients, clearly a move by the legislature to eliminate the loophole allowing storefront dispensaries. So the entrepreneurs switched from being “providers for one patient at a time” to being “collective gardens for 10 patients at a time,” and continued operations as storefront dispensaries without missing a beat. When a patient comes in, he becomes Patient #1 in the collective, the existing patients slide down a slot in the list, and patient number 10 is dropped from the collective.
This is where the City of Kent comes in. Not wanting any medical marijuana dispensaries no matter what loophole they’re using, the city banned collective gardens. A group called the Cannabis Action Coalition sued, saying SB 5073 legalized collective gardens and the city had no right to ban them. That’s when a smart attorney for the city noticed that collective gardens were only legal if comprised of registered patients:
APPEALS COURT: “Kent, in response, contends that the plain language of the [SB 5073] did not legalize collective gardens because collective gardens would only have been legalized in circumstances wherein the participating patients were duly registered, and the registry does not exist. The trial court properly ruled that Kent is correct.”
So now, not only are the storefronts operating as “collective gardens” officially declared illegal in Washington State, but so are the legitimate groups of ten patients cultivating 45 plants for their personal medical needs who never had any intention of profiting or opening a storefront. All patients in Washington State have left is the right to possess and cultivate their own marijuana without any protection from arrest, except for the possession of one ounce made legal for all Washingtonians by recreational legalization and, eventually, recreational stores in which to purchase up to an ounce of marijuana.
If Washington State had a voluntary patient registry, those collective gardens would still be legal, if a bit in a gray area. Let’s see, who has been one of the most vocal opponents of forming Washington state patient registry, going back to the 20th Century? Which groups and medical marijuana leaders have steadfastly refused to budge on even a voluntary patient registry, complaining that means patients would “register like sex offenders?” Who was it that vigorously opposed a “heinous patient registry?” Who called for the retirement of the legislator who tried passing that SB 5073 because she’d be “forcing us to register like sex-offenders?”
Why, that would be the same Cannabis Action Coalition that just lost the appeal vs. the City of Kent and stood as the loudest opponent to the recreational legalization in Washington State that finally protected patients from arrest for misdemeanor possession.