Hiding Behind Zoning Powers

With no “opt out “ language in either the State’s Medical Marjuana Law (MMJ), or the I-502 implementing statute, how is it cities, and some counties consider themselves on solid ground when enacting moratoria, or prohibitions against cannabis growing and sales? Speaking with a request of anonymity, legislative committee staff working with the subject have no answers but doubt the cities have defensible positions. Others just shrug. Regional cannabis attorneys claim that any moratorium or rolling prohibition is illegal, and as legislative staff has discussed, probably unconstitutional. I-502 statute is clear. So it’s the old, “If you don’t like it sue me.” Fight City Hall? Municipalities hide behind zoning powers and lack of clarity in statutes. Even their Federal law cannabis prohibition enforcement excuse faded this summer when the US Department of Justice announced specific conditions of regulation for Colorado and Washington State, the nation’s only recreational cannabis use states.

A question to Dave Williams, Director of Government Relations for the Washington Association of Cities produce an admittance some cities are “considering moratoria…” and then his response email suggested I look at the website for the Municipal Services and Research Council,MSRC. The Council’s website provides well crafted explanations of the present status at the Washington Liquor Control Board’s, (LCB) rules for implementing I-502, reiteration of the conflict with Federal law, and a description of some of the detail of the location restrictions being considered in the I-502 WAC, but nothing about the authority or lack of it for cities to just flat out stop cannabis business.

Municipal Services And Research Council Staff Agree With Thin Ice Status

Earlier this year the City of Puyallup passed a resolution prohibiting all cannabis business. They talked about recreational use, they sited the LCB process, then they reached out and clobbered MMJ as well. As reported (http://wacannabiswire.washingtonstatewire.com/wp-admin/post-new.php) some city council members did not know the extent of the resolution. Puyallup city attorneys did not return phone calls. Now we know why. Jim Doherty, legal consultant to the MSRC admits that some municipalities are over reaching. But, he is quick to mention that with the vagueness of the MMJ law and the yet to be adopted final rules for recreational use, how can we blame them?

“With the lack of clarity in the MMJ law, and the long delay of the CR-103 adoption  by the LCB it is not surprising that cities are protecting themselves with morotoria until the laws are sorted out.”

Cannabis Business Private Counsel

Seattle area private legal counsel specializing in cannabis businesses add…”Under I-502, any so-called “opting out” is patently not allowed and also unconstitutional. Moreover, any arbitrary moratorium or rolling moratoria without a serious work/implementation plan will fail in court for the same unconstitutional reason as I-502 now stands.” But how many have the money to fight city hall?

The Onus Once Again Falls On The LCB

If LCB adoption of final rules and LCB lead MMJ/Recreational use interaction budget-proviso-recommendations are truly the justification for municipal cannabis prohibition in the face of a citizen’s adopted statute then the remedy lies with the LCB. The regulatory agency responsible for implementing Washington’s recreational use initiative, the LCB is on track to bring forth it’s rules as well as finally give the world a peek at it’s secret proceedings to comply with the biennial budget, mandated study. The study will look at the “interaction” of the State’s MMJ law, and our recreational use law. The agency announced that “stakeholders” (undefined in the budget language) will be allowed to view the recommendations tomorrow, October 21st.

What To Expect

The very transparent and even more thorough rules creation process are self explanatory. With the lack of public whining about the draft rules and the “do-overs” by the agency, citizens should see a seamless, organized, consensus built recreational use platform. The devil will be in the agency’s immersion into MMJ regulations, or other statutes affected by the MMJ statute. To remedy one of the prohibition excuses the LCB and it’s partner agencies, Department of Revenue and Department of Health should revisit the unexplainable and mysterious set of vetoes left for us by former Governor Gregoire. In any case, the recommendation, due by start of the 2014 legislative session, should finally provide for an MMJ retail outlet. Indications are that they will also stick their regulatory pen into the murky world of authorizations. This will force the legislature, if they agree, to address the scope of practice provisions of our state’s healthcare providers. To say this is hollowed ground does not do justice to the fierce territorial battles that may ensue if appropriate, professional, medical evaluation is to be the common test for issuance of an MMJ authorization, or prescription.

Go Big Or Go Home

Long time MMJ growers and “retailers/dispensers” claim that ambiguity and lax regulatory provisions will be the undoing of the entire I-502 process. And, those cities and counties choosing to do so will continue to hide behind the confusion and enforcement of their otherwise illegal prohibitions. Simply, if the MMJ regulatory platform is not tightened up, and users are allowed to continue to acquire an authorization online, and obtain cannabis at an outlet or community garden, there will be no economic or convenience reason to visit the recreational use retailer who must charge 50-75% more for imbedded taxes. Presently there is no mention of a dispensary or a retail outlet in the MMJ law. None. Oregon State legislature passed a law this year setting in play a process to tighten up their MMJ law. Ironically the lynch pin of the tune-up seems to be the dispensary activity. Oregon MMJ advisory committee estbalished to quide the proposed changes is focusing first on security of product and cash. It is apparent they did not turn their head or their ears as the US DOJ clarified their role in state cannabis laws and stressed the requirement for tight product and border control.

If the MMJ statute is not tightened up the alleged revenue from recreational use sales will not be forthcoming, recreational users will continue to possess bogus MMJ authorizations and acquire their cannabis from loosely regulated community or personal growers, and the black market will continue to chase the price point to the mean.

As one private, MMJ grower told me, “If they don’t tighten up the MMJ product-stream regulation, I will continue to grow and sell wherever I can…to a dispensary (her word) or friendly clients.”

The LCB can get it right on the I-502 front, and they have a chance to constructively close the door on a loosely controlled MMJ market. If they fail on the later, the leakage will bolster the black market, and doom the recreational use market and its coveted revenue. We are not alone in this historical undertaking. Citizens of Portland, Maine will vote on November 5, 2013 whether they want to legalize small amounts of cannabis possession for adults. It’s just a city, in one state, but as quoted in an AP Wire story, David Boyer, Marijuana Policy Project local political director states that the vote in Maine is…”just the next domino.” Those who have gone before, must do it right.

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