2012 feb 29 city of lacey memohillaryssuggestionnotes attorney for lacey cross

8/2/2019 2012 Feb 29 City of Lacey MemoHillarysSuggestionNotes Attorney for Lacey Cross

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memo

Date: February 23, 2012

To: Lacey Planning Commission

From:David Burns, AICP, Principal Planner

Subject: Medical Marijuana, focused work-session 1, Dispensary and Collective gardenoptions under state law?

I. Introduction and Summary discussion:

A. Previous work-session - At the last work-session the Planning Commission had ashort introductory briefing on Medical Marijuana and the interim ordinance the Councilreferred to the Planning Commission for review. We had a number of interested citizens

join the Planning Commission in discussion of this topic. With the short amount of timeon the agenda we did manage to get through most of the introduction and a number ofconcerns were identified by the citizens and discussed by the Planning Commission.

Because the topic is new to the Planning Commission, most of the allocated time wasspent learning about this topic and listening to citizen concerns. Representatives fromLacey Cross (Casey Lee) and Cannabis Outreach (Denny Coughlin) were present andwere able to discuss their concerns. This report refers to Lacey Cross and CannabisOutreach as local non profits, based upon the statement made by Denny Coughlin at thelast work-session. I do not have the professional background to make a determination

on their status as a nonprofit or a commercial business.

B. Central issue identified - Based upon the discussion at the work-session, there werea number of issues that surfaced. Staff has prepared this report to help focus thePlanning Commissions effort of reviewing this topic. This report identifies and focuseson a central issue important to members of the public that were at the last work-session,that of what a collective garden is and how the concept relates to Lacey Cross andCannabis outreach. The basic issue at the heart of discussion is what the state andfederal laws on marijuana mean for these two local non profits and the strategies theyuse to provide medical marijuana to qualified patients.

Both Lacey Cross and Cannabis Outreach have had a successful, but unlicensed,business model in providing medical marijuana to qualified patients. The model used byLacey Cross and Cannabis Outreach in providing patient access to Medical Marijuana is

to have a central location for patients to pick up medical marijuana produced inundisclosed locations. This results in a very convenient situation for medical marijuana


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patients to access medical marijuana without having to buy it off the street with the risk

that would involve a purchase off the black market. Patients can simply walk into one ofthe local non profits and purchase their authorized medical marijuana. It alsoconsolidates the points of product distribution, in the existing case to the CBDcommercial area of Lacey, which can have advantages, considering other models wheresupply points may be distributed throughout the community with more security issuesand impacts to more areas.

The City of Lacey considers use of this model illegal under state law and it has led tomultiple felony charges of delivery of a controlled substance being filed in ThurstonCounty Superior Court against the owners of both non-profits this year.

The models used by these two non-profits is similar to what is described in the paper tothe Langley City Council from Island Alternative Medicine, and can be referred to as aCooperative business model; See paper to the Langley City Council attached dated

February 13, 2012.

C. Questions to consider - Regardless of how well these models work for patientaccess, the critical questions we need to ask include,

Are these non profits and their operations permitted under state law?

Are the existing operations a dispensary, which is not currently permitted under statelaw, or is there a way they can be considered a collective garden(s), which is permittedunder state law?

If the existing non profits are not considered collective gardens they way they arecurrently operating, is there a model that these non profits could adopt that would beconsistent with state law?

To clarify the concept of a collective garden and dispensary under state law, we havededicated this work-session to exploring what the state law says about a collectivegarden and what options this might provide us considering the model currently used bythese local non profits.

D. Conclusions - Staff has come to the conclusion the current model used by these nonprofits may have worked under the draft version of ESSSB 5073 before the veto, whereLacey Cross and Cannabis Outreach may have been licensed by the state Departmentof Health as a dispensary and their suppliers (the producers/growers) could have appliedto be licensed by the Department of Agriculture. However, specific provisions of ESSSB5073 that would have permitted this were vetoed by the Governor and the final versionthat became state law does not allow dispensing of medical marijuana.

Ways brainstormed by staff to modify the model to make it work under state law have not

been successful, because all of the ideas developed are not compatible with provisionsin state law that limit what a collective garden can be. These ideas and a model

Comment [HB1]:Just a notenondo not have owners per se, just mId like to add that Lacey Cross isunder new management with KC

Comment [HB2]: Last week, I drafproposed interim regulations for tLangley that Id be glad to share wPlanning Commission. Langley is going to allow access points to exidelivery portion of collective gard(simultaneously with those collectgardens that make up the procesproduction portion); Issaquah adsimilar regulations in order to allopoints to operate.

Comment [HB3]: I just want to emthat there is no legal definition ofdispensary and that it is a term ocreated by the industry.

Comment [HB4]: I also want to emthat aside from its regular definittheres no legal definition of dispRCW 69.51A, et seq. Furthermoreare allowed to cultivate and distrieach other cannabis for medical pvia collective gardens. I really thin

just semantics; theres no differenbetween distribution and dispenswithout a legal definition to substdispensing.


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proposed by Island Alternative Medicine to the Langley City Council will be shared with

the Planning Commission to illustrate the problems and challenges the existing state lawpresents, and how some non profits have proposed to operate under the classification ofa collective garden.

Literally everyone I have talked to, that is knowledgeable about this topic, agrees thestate law is very much broken after the veto of ESSSB 5073 and is in need of seriousrepair.

The only strategy that would allow these non profits to continue their existing model isthe strategy adopted by Seattle. Seattles strategy is essentially to ignore theinconsistencies in state law regarding dispensaries and to make a policy decision thedispensaries are not a priority for law enforcement.

The only other option we have to work with involves Collective Gardens as described inthe interim ordinance. This is the concept the Council has referred to the PlanningCommission for review.

II. Existing state law and the collective garden concept:

A. What is the basis of the collective garden concept; how did it come to be instate law - To understand this concept it is helpful to review once again quickly thecontext of the existing state law. The original version of ESSSB 5073 intended that thestate Department of Health would license dispensaries and the Department ofAgriculture would license growers. See Part VI and part VII of ESSSB 5073; page 20and 26 ESSSB 5073. This model expected both the use and regulation of growers anddispensaries in meeting Washingtons medical marijuana demand. The concept of acollective garden was put forth in Part IV under new section 403; see page 14 ESSSB5073. This concept was originally intended to be an option for the do it yourselfer (Urbanagriculturist) that wanted to band together with several fellow patients to grow their ownproduct, without the need for do it yourself oversight.

Reading the whole of ESSSB 5073 it is clear collective gardens were was neverintended to be the main model for supplying the entire medical marijuana demand. Thisconcept was only an alternative. Most people are not an urban agriculturist type and donot have the capability or interest to be so. Unfortunately, after the veto removed themajor provisions for dispensing and production of medical marijuana in ESSSB 5073,only the alternative for the do it yourselfer remained. In the interim, between now andwhen our state law is amended, the only opportunities for an individual qualified patientto access medical marijuana, is to grow his/her own, designate a care provider to growit for them,or to band together in a collective garden.

B. What exactly is a collective garden, how is it presented in state law?

Comment [HB5]:This is not necestrue. If you read Seattles ordinanmake clear that, albeit they are recollective gardens, they are not, asame time, directly approving of a

activity that is illegal pursuant to law. To say enforcement is not a palso inaccurate; patients are entitaffirmative defense meaning they convicted of a crime at trial (this dinsulate them from arrest or prosPolice in Seattle are not going to eState drug laws against qualifyingbecause of the affirmative defensewould be a huge waste of tax payAnd Seattle hasnt been authorizeState to enforce Federal law againaccess points.


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The wordcollective is used in agricul ture to descr ibe a group of

growers who actual ly farm together, working in a closed system, on anot-for-prof i t basis, with no outside market.

State law provides a specific description of what a collective garden is and putsconstraints on what it can include. Originally, it was not considered to be of enoughsignificance for regulatory purposes. It was probably on the same low priority forregulation as an individual growing his/her own medical marijuana. In the originalESSSB 5073 it is in the same part IV as the provisions that deal with an individualgrowing his/her own. After all, the real action and regulation would have been thelicensing of dispensaries and growing operations. Still some standards were needed toappropriately limit the scope.

The key standards applicable to collective gardens from RCW 69.51A.085 (1) areas follows:

No more than 10 qualifying patients may participate in a single collective garden at anytime.

A collective garden may contain no more than fifteen plants per patient up to a total offorty-five plants.

A collective garden may contain no more than twenty-four ounces of useable cannabisper patient up to a total of seventy-two ounces of useable cannabis.

A copy of each qualifying patients valid documentation or proof of registration with theregistry established in section 901 of this act, including a copy of the patients proof ofidentity, must be available at all times on the premises of the collective garden.

No useable cannabis from the collective garden is delivered to anyone other than one of

the qualifying patients participating in the collective garden.

The state law goes on to describe the model of a collective garden in RCW69.51A085 (2) as follows:

(2) For the purposes of this section, the creation of a collective garden means qualifyingpatients sharing responsibility for acquiring and supplying the resources required toproduce and process cannabis for medical use as, for example, a location for a collectivegarden; equipment, supplies, and labor necessary to plant, grow, and harvest cannabis;cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary forthe proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants.

This seems straight forward describing a small collective garden operation run andmanaged by 10 or less qualified patients for their own personal medical marijuana use.

C. The morphing of dispensaries into collective gardens:

Comment [HB6]: I dont know if I ayour legislative interpretations. Mbecause Gregoire made it very cleshe didnt want any State involvemlicensing anything related to canndont necessarily believe that the san access point was meant to fall

from the law (a law which emphaspatient access). If anything, Gregoconcerned for State employees. I dthink she meant to stamp out accpoints altogether.

Comment [HB7]:This portion wasout of the Statute.

Comment [HB8]:This is my main No where in that portion of the stthe law say the collective garden msmall. And the statute does not sapeople or less. I think Lacey runrisk of violating State law here by

restrictive on patient access to meMukilteo and Issaquah agreed thawould not control patient access bthe fear of violating State law.


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When ESSSB 5073 was partially vetoed and sections for licensed dispensaries and

growing operations were removed, dispensaries continued to be illegal under state law.In order to survive these businesses were forced to re-invent their operations. Becausecollective gardens were now the only mechanism remaining for providing medicalmarijuana to multiple qualified patients, it was necessary to come up with a way to meetthe requirements of a collective garden provided in state law.

From a reading of the state law this is a challenging proposition. Collective gardens areintended and designed to provide an opportunity for several patients to come togetherand grow their own medical marijuana, while the dispensaries are designed to serve alarger population that may have no interest in farming, but only needs access to theproduct.

A major problem to overcome is a limitation of 10 patients with only a patient of thecollective being able to transfer or deliver medical marijuana to another patient of the

collective. If anyone in the collective delivers marijuana to someone other than the othernine in the collective, we have delivery of a controlled substance. If someone that is notin the collective delivers medical marijuana to a patient, other than a designated careprovider, we have delivery of a controlled substance.

This limitation was intended to limit the growing and use of the medical marijuana to thepatients and as an urban agricultural self grow there were no standards it was expectedto meet. Keep in mind, the original ESSSB 5073 provided dispensaries would beregulated by the Department of Health as to who and how medical marijuana could beobtained and provided quality control of the medical marijuana produced. Medicalmarijuana produced by the 10 patients in a collective garden was not permitted to gobeyond the immediate collective group and was not going to be subject to standards.

The dispensaries creatively attempted toaddress this issue by saying a qualified patient

can be a member of multiple collectives which result in multiple collectives operating as acooperative. Imagine 1000 collectives with an aggregate of 10,000 members. Imaginefurther patients can come to one and go to another with no restrictions. This would allowa patient in one collective (A) being able to join another collective (B) to purchase theproduct of (B). To avoid getting too many patients in any one collective a patient thatbuys the product from (B) is automatically revoked of the membership in (B) as soon asthe purchase is made. To maintain collectives some will have only three permanentmembers and the rest will be transients going from one to another when there is a needto acquire the product.

While creative, it would also be incorrect to conclude this is permitted under the statelaws description of a collective garden. If it was the intent to allow membership inmultiple gardens and coming and going from one to another with an aggregate of 10,000patients, why would the collective garden have been limited to 10 individual patients? If

it was the intent to allow trading between any of the 10,000 members of multiplegardens, there would not have been a limitation on the number of patients and there

Comment [HB9]: Where is this pardefinition coming from for a dispe

Comment [HB10]: You have this ron a Federal level, even if qualifyipatients from the same garden ardelivering to each other.

Comment [HB11]: Again, not surethis interpretation of legislative incoming from and I believe it is toorestrictive.

Comment [HB12]: State law doesnthat you cannot do this. In fact, Sdoesnt even define membership igarden and some citys have chosthey cannot regulate patient membecause of that.

Comment [HB13]:The devil is in tdetailsits 10 people in a garden

time. That particular phrase can allow for a rotating patient memb


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would not have been a restriction that only a patient in a specific collective garden can

deliver a fellow patient in the same collective garden the product. The collective gardenwas intended for 10 or less patients working together to grow their own, nothing more.

The morphing of dispensaries into collective garden requires pushing the envelope ofintent to the breaking point. The requirement to temporarily join a collective garden andbe automatically revoked after a transaction is bazaar, and demonstrates the activitydoes not fit the collective garden model.

While we might applaud the creativity to make something not designed for a particularpurpose fit a particular need, we should remember what we are dealing with. We have aschedule 1 drug that is still considered illegal under Federal law, even for medical use. Astate law cannot supersede Federal law and state laws that permit the use of medicalmarijuana are treading lightly to minimize conflicts. What a local government permitsunder state law on this topic should be consistent with the letter and intent of the state

law on its face, without a need to imagine a process or strategy for supply and deliverythat falls well beyond.

The intent of a collective garden is clear, and it does not include serving the medicalmarijuana needs of thousands of patients. It was designed to serve the needs of ten (10)patients who by themselves cannot grow their own marijuana. Models that centralizeproduction and distribution, while better able to meet demand, need to wait for reworkingof the state law.

D. Models to serve the product needs of the medical marijuana qualified patients:

Review of ESSSB 5073 depicts a model that was well designed to serve the medicalmarijuana needs of qualified patients. It provided for centralized dispensaries andgrowing opportunities that could serve a large number of people. The models used bythe local non profits have been successful in meeting consumer needs. All of the modelsprovide a centralized and organized way of supplying product to qualified patients,minimize land use impacts and minimize security issues. Unfortunately, ESSSB 5073underwent a partial veto and sections providing for a model that centralizes productionand dispersion were removed from the legislation.

Until the state law is amended, local jurisdictions are left with personal grows forpersonal use and collective gardens as the only methods of providing the medicalmarijuana demand of qualified patients. These may be a poor substitute for the modelscurrently being used, but they are the only mechanisms available to local jurisdictionsunder state law.

E. Options for the Planning Commission to consider:

1. Follow the advice of the City Attorneys office and this report, considering the

intent and requirement of state law for collective gardens. This is essentially the positionthat a collective garden must be a separate entity limited to 10 patients that work

Comment [HB14]:Just to analogiza person goes to Bartells and doewhat they need on the shelf, whatthem from going to Walgreens to gthey need to treat their pain? Citieregulate their drug stores so restrand, albeit subject to a different srules, you dangerously tread impefreedom of choice and associationcalling into question a rotating pabase. Again, other cities, with juslarge/small a population as Lacey

decided to allow patients to dictatown choices because they cannot otherwise that it is lawful to regulpatient access in such a way.

Comment [HB15]:There is no conbetween State and Federal law; thcan still enforce against Lacey Crosee fit. The Feds have clearly telegthat if a medical cannabis operatiabiding by State law that that openot a priority for enforcement.Furthermore, the City of Lacey shbe preoccupied with enforcing Fedagainst its citizens. To do so isundemocratic, unconstitutional, abizarre.

Comment [HB16]: I have to be honLacey regulates this way, collectivwill start popping up all over the the last meeting, it was said that wouldnt regulate home grows/pegrows. If you go this route, you wyourselves to do just that and enfwill be a nightmare. State law is nrestrictive as Lacey intends it to bregulating a store front (that actuto follow your guidelines) is muchand cost effective than regulatinggrows for the intended collectiveof just 10 people or less.

Comment [HB17]: Mukilteo, IssaqSeattle, Gig Harbor, and Langley sdifferent.


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together to grow their own product. It cannot involve a cooperative model involving

multiple collective gardens.

2. Consider the argument for the cooperative model reasonable, given thecircumstances of the partial veto, the discussion presented in the paper to the LangleyCity Council provided by Hillary Bricken (Attorney for Lacey Cross), and what is in theexisting state law, and provide for Councils consideration of an alternative ordinance thatallows this strategy.

3. Collaboration to build an alternative. While we always suggest consideringvariations of positions and collaboration to build consensus to find something that worksfor everyones needs, in this case our options are limited. Staff has spent a significantamount of time considering this topic and options provided under state law. If we staytrue to what we believe is the purpose and function of a collective garden, modelsneeded for the existing non profits to work do not fit.

III Staff recommendations:

Staff recommends the Planning Commission make a determination that the cooperativemodel does not fit state law and chose option 1 above. With this decision made,additional work-sessions can be focused on issues associated with making collectivegardens work in our community under the parameters provided in state law.

IV Work-session expectations:

The Planning Commission will be briefed on the central issue of dispensaries versuscommunity gardens. The Planning Commission will then have an opportunity to discussthis issue with participating citizens and determine what direction it wants to go on thisissue.

The direction the Planning Commission takes on this issue will determine theorganization of the next few work-sessions. It the Planning Commission follows the staffrecommendations we will be ready to move on to the next issue of focus where we willbegin to consider what zones collective gardens should be permitted to best serve theintent and need of collective gardens while protecting the land use interests of thecommunity.

2012 feb 29 city of lacey memohillaryssuggestionnotes attorney for lacey cross

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