Noember 13, 2013

\ashington State Liquor Control Board !"#$ &'( ")('*

3000 Paciic Aenue Southeast +,-./01+02.3405061.78908:;<
Olympia, \ashington 98501

Dear Board Members,

\ashington has been a pioneer o rational marijuana policy. It was among the
irst states to proide protection rom criminal penalties to medical marijuana
patients, and now it is leading the way in establishing a new approach that
replaces counterproductie prohibition with a comprehensie system o
responsible regulation o all marijuana production and distribution.

1he ACLU-\A is submitting the ollowing comments in relation to the Liquor
Control Boards task of working with the Department o lealth and the
Department o Reenue to deelop recommendations or the legislature regarding
the interaction o medical marijuana regulations and the proisions o Initiatie
Measure No. 502 ,as proided or in Section 141 o 1hird Lngrossed Substitute
Senate Bill 5034, the 2013-15 state operating budget,.

As \ashington law currently recognizes, marijuana proides inaluable medicinal
assistance in alleiating the suering rom a range o medical conditions. In
crating policies or use o marijuana or medicinal purposes under Initiatie 502
,I-502,, the emphasis should be on accommodating needs o patients. \e beliee
those needs can largely be accommodated within the ramework o I-502.

1he Boards recommendations to the legislature should focus on ensuring that
patients retain rights currently granted by the medical marijuana law that the new
regulatory system does not include, especially:
the right to grow ones own medical supply, and
the right to deend onesel against charges o possessing more marijuana
than what most patients need to hae.

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1he ACLU-\A strongly opposes elimination of patients right to produce their
own cannabis, a right they hae enjoyed since the passage o Initiatie 692 in
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Noember 13, 2013
Page 2 o
1998. And even before adoption of Washingtons medical marijuana law, patients
could aail themseles o the common law medical necessity deense i charged
with marijuana manuacturing, a right recently reairmed by the \ashington State
Supreme Court.
1


1he aailability o I-502 retail stores will accommodate the needs o most
patients. loweer, due to ederal obstruction o scientiic research into the
potential therapeutic uses o the cannabis plant, some patients hae been orced
to rely on trial and error to identiy, and then reproduce, the speciic strains o
plants that possess the cannabinoid proiles most helpul or proiding relie or
their particular conditions. So, the option o personal cultiation needs to be
retained. Moreoer, the right to grow their own gardens ensures access to
cannabis should a patients city or county refuse to allow a state-licensed store
within its boundaries and orce protracted litigation. It is unnecessary, and would
be unair and harmul, to take away patients right to produce their own cannabis
when they hae deeloped a strain o marijuana specially tailored to their personal
medical needs.

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1he right to deend onesel against charges o possessing more marijuana than
what most patients need to hae is an essential protection or airness. 1he
airmatie deense has been a core protection of Washingtons medical marijuana
law since its inception. And when the state Department o lealth was tasked
with developing a definition of a sixty-day supply of medical marijuana, the
legislature made clear that the deinition would be presumptie only, the right to
proe need o a greater amount was resered to the patients.

An airmatie deense is not a blank check to abuse the law. Patients who
exceed presumptie limits can be charged and prosecuted i they are iolating the
law.

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1he rules adopted by the board to implement Initiatie 502 ,I-502, proide at
least the same level of regulatory oversight as other states medical marijuana laws,
i not more. Patients who choose to purchase, rather than produce, their
medicine will hae greater assurance o quality and saety than is aailable to them
under the current unregulated patchwork o commercial collectie gardens.
Gien these conditions, it makes little sense to create a parallel system o
production and distribution and incur duplicatie administratie and enorcement
expenses. Nor would it be good policy to continue allowing collectie gardens to
engage in unregulated commercial actiity.

1
!"#"$ &' ()*"+, ___ \n.2d ___, 309 P.3d 42 ,2013,.
Noember 13, 2013
Page 3 o

The idea of a special medical marijuana endorsement for stores should be
considered cautiously and careully. I the new I-502 regulations exceed current
standards or products sold to patients, it seems inadisable to create additional
requirements. I marijuana o high quality is made aailable, retailers may market
it as such in their stores.

I, on the other hand, the state decides that medical marijuana products should be
subject to higher quality and saety standards than those oered or general adult
use, then the endorsement or certiication should be or the product rather
than the retail outlet.

History of Washingtons Medical Use of Cannabis Act
\e also would like to proide some necessary historical background on marijuana
law in \ashington state.

1he \ashington State Medical Use o Marijuana Act ,Chapter 69.51A RC\, was
adopted in 1998 ia Initiatie 692, passed with 59-41 percent oter approal. 1he
measure identiied three categories o indiiduals to receie protection rom
existing laws criminalizing the possession and use o marijuana: qualiying
patients, primary caregiers, and physicians.
2
A primary caregiver was defined
as a person who:
,a, Is eighteen years o age or older,
,b, Is responsible or the housing, health, or care o the patient,
,c, las been designated in writing by a patient to perorm the duties o
primary caregier under this chapter.
3


Initiative 692 further required a primary caregiver to possess no more marijuana
than is necessary for the patients personal, medical use, not exceeding the
amount necessary for a sixty day supply, and to serve as a primary caregiver to
only one patient at any one time.
4


Amendments to the Medical Use o Marijuana Act were made in 200 that
renamed primary caregivers designated providers and removed the requirement
that they be responsible for the housing, health, or care of the patient. The
requirement that designated providers serve only one patient at any one time
remained in place.


2
1he ull text o Initiatie 692 is aailable online at
http:,,www.sos.wa.go,elections,initiaties,text,i692.pd.
3
Initiatie 692, sec. 6,2,, codiied at ormer RC\ 69.51A.010,2,.
4
Initiatie 692, sec. 5,4,,b, and ,e,, codiied at ormer RC\ 69.51A.040,4,,b, and ,e,.
Noember 13, 2013
Page 4 o
1wo other substantie changes made required the state Department o lealth, by
July 1, 2008, to define the quantity of marijuana that could reasonably be
presumed to be a sixty-day supply for qualifying patients, and to:

gather inormation rom medical and scientiic literature, consulting with
experts and the public, and reiewing the best practices o other states
regarding access to an adequate, sae, consistent, and secure source,
including alternatie distribution systems, o medical marijuana or
qualiying patients.
5


Light years o experience with the medical marijuana law had established that
sixty-day supply was too vague a standard to allow law enforcement officers to
quickly determine whether a patient or proider was in compliance and thereby
aoid unnecessarily intrusie inestigations. It was also clear that the only-one-
patient-per-proider system was impracticable, growing marijuana requires
months beore a irst harest can be made, and many patients need access to
cannabis immediately ater their diagnosis.

In 2011, the legislature passed a bill
6
that would hae created a tightly regulated
system o state-licensed producers and dispensaries that would inally proide
patients with access to an adequate, safe, consistent, and secure source of
medical marijuana that they would not hae to grow themseles. Unortunately,
Go. Chris Gregoire etoed all o the proisions that would hae established that
system. Accordingly, no medical marijuana regulations whatsoeer exist under
\ashington state law.

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One new provision survived Gov. Gregoires veto: the collective garden. The
collectie garden was intended to be an alternatie source o cannabis or patients
who had no reasonable access to a licensed dispensary or simply preerred to
participate directly in the production o their medicine. It was not intended to
operate as a commercial entity:


5
LSSB 6032 ,200,, sec. 8,3,, codiied at ormer RC\ 69.51A.080 ,repealed by L2SSB 503 in
2011,.
6
Lngrossed Second Substitute Senate Bill 503 ,the legislation also changed the name o the law
from the Washington state medical use o ,#*-.)#/# act to the Washington state medical use
o 0#//#1-2 act.

Pursuant to the mandate o LSSB 6032, the state Department o lealth adopted a rule in 2008
providing a presumptive definition of a sixty-day supply iteen plants and twenty-our
ounces o useable marijuana. \AC 246-5-010. DOl repealed this rule ater the legislature
codiied the deinition in L2SSB 503. \SR 12-05-06 ,2,16,12,.
Noember 13, 2013
Page 5 o
,1, Qualiying patients may create and participate in collectie gardens or
the purpose o producing, processing, transporting, and deliering
cannabis or medical use subject to the ollowing conditions:
,a, No more than ten qualiying patients may participate in a single
collectie garden at any time,
,b, A collectie garden may contain no more than iteen plants per patient
up to a total o orty-ie plants,
,c, A collectie garden may contain no more than twenty-our ounces o
useable cannabis per patient up to a total o seenty-two ounces o
useable cannabis,
,d, A copy of each qualifying patients alid documentation or proo o
registration with the registry established in section 901 o this act,
including a copy of the patients proo o identity, must be aailable at
all times on the premises o the collectie garden, and
,e, No useable cannabis rom the collectie garden is deliered to anyone
other than one o the qualiying patients participating in the collectie
garden.
,2, lor purposes o this section, the creation of a collective garden
means qualiying patients sharing responsibility or acquiring and
supplying the resources required to produce and process cannabis or
medical use such as, or example, a location or a collectie garden,
equipment, supplies, and labor necessary to plant, grow, and harest
cannabis, cannabis plants, seeds, and cuttings, and equipment, supplies,
and labor necessary or proper construction, plumbing, wiring, and
entilation o a garden o cannabis plants.
,3, A person who knowingly iolates a proision o subsection ,1, o this
section is not entitled to the protections o this chapter.
8


1hat the collectie garden was intended to complement, not replace, the
commercial dispensaries that had been included in L2SSB 503 is supported by
the act that just eleen days ater the eto, the prime sponsor o the legislation,
Sen. Jeanne Kohl-\elles, introduced Senate Bill 5955. SB 5955 would hae
created nonprofit patient cooperatives that would have been allowed to sell
cannabis to members, and also would hae clariied that, on the other hand,
contributions to a collectie garden by members o that garden could not be
solely monetary.
9





8
L2SSB 503, sec. 403, codiied at RC\ 69.51A.085 ,the registry reerenced in subparagraph
,1,,d, was etoed,.
9
SB 5955, sec. 6,1,,k, and Sec. 5,1,,c,.
Noember 13, 2013
Page 6 o
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On December 11, 2012, the language that had proen itsel unworkable as a
means of providing patients access to an adequate, safe, consistent, and secure
source of cannabis became the legal loophole through which entrepreneurs
would be able to leerage collectie gardens to cycle hundreds and een
thousands o patients through storeronts transacting commercial sales ,reerred
to as safe access points rather than dispensaries). That was the day the
\ashington State Court o Appeals, Diision III, reersed the coniction o Scott
Shupe, who had operated the Change dispensary in Spokane.

In the years leading up to the !3)4$ decision, a ew risk-tolerant indiiduals
opened dispensaries under the theory that only one patient at any one time
simply meant that the paperwork designating the proider to sere a particular
patient had to be shredded between each transaction, and a new document
executed by the next customer. In other words, the person behind the counter
could sere as a designated proider to Patient A at 8:00, Patient B at 8:15, and so
on, shredding each patients designating paperwork between each sale.

Mr. Shupes jury rejected this argument and convicted him on March 17, 2011,
while the legislature was considering Senate Bill 503. Neertheless, L2SSB 503
clarified the phrase only one patient at any one time by requiring 5$2-6/#"$5
4*7&-5$*2 to wait iteen days ater ending one care relationship beore taking on a
new patient.
10


loweer, the new 0788$0"-&$ 6#*5$/ proision in L2SSB 503 contained no such
temporal restriction. RCW 69.51A.085(1)(a) simply states, No more than ten
qualiying patients may participate in a single collectie garden #" #/9 "-,$
,emphasis supplied,. On December 11, 2012, the Court o Appeals announced
that the proper interpretation of to only one patient at any one time is an
interpretation that allows the greatest number o qualiied patients to receie the
medical marijuana treatment that they need. In other words, only one patient at
any one time means 7/$ "*#/2#0"-7/ #:"$* #/7"3$* 27 "3#" $#03 4#"-$/" 6$"2 -/5-&-5)#8 0#*$'
!"#"$ &' !3)4$, 12 \n. App. 341, 289 P.3d 41, 48 ,2012, ,emphasis supplied,.
1hereore, the identities o the ten members o a collectie garden may change as
soon as paperwork can be shredded and replaced, and one patient leaes the
counter to make room or another.

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Despite important legislatie and agency adancements rom 200 through 2010,
and a valiant effort by legislators and agency leadership in 2011, Washingtons
medical marijuana law was not allowed to eole into a marketplace where

10
L2SSB 503, sec. 401,5,, codiied at RC\ 69.51A.040,5,.
Noember 13, 2013
Page o
patients with terminal and debilitating medical conditions had access to an
adequate, safe, consistent, and secure source of cannabis that had been subject to
regulatory oersight and thereby proided some assurance that quality and saety
standards were being met. 1his is unortunate, because regulatory oersight o
commercial transactions is especially important or products intended or use by
patients with terminal and debilitating medical conditions who may hae
compromised immune systems.

\e thank the Liquor Control Board and agency sta or the tremendous work
that has gone into deelopment o rules to implement Initiatie 502. \ou hae
been thorough, inclusie, and transparent. \our team has deliered admirable
results that will proide a solid oundation or the launch o an unprecedented
and historic shit in marijuana policy.

Sincerely,

Alison lolcomb
Criminal Justice Director