Update: City Moratoria on Medical Cannabis Collective Gardens

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Update: City Moratoria on Medical Cannabis Collective Gardens

by Sensible Washington on Monday, February 13, 2012 at 9:37am Following is the text of a document I wrote to the City of Poulsbo, for their consideration in their February 15, 2012 public hearing. The content of this document is applicable to all cities and counties that are considering moratoriums on collective gardens. Feel free to use this text (or modify as needed), when working with councils in your own city.The following text is complete, only my contact information has been redacted (thanks, - Troy): Poulsbo Medical Marijuana Moratorium

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To the Honorable Mayor Becky Erickson, Poulsbo City Council Members, Planning Department, and City Attorney,

My position on the city moratorium for cannabis collective gardens has changed somewhat; rather, I should say my perspective has changed based on new evidence. I still hold to the ideal that we need a workable solution to provide safe and affordable access for medical cannabis patients.

Presented in this document, is evidence to suggest this moratorium is illegal under state law, yet puts the city largely in compliance with federal law; however, this is a grey area. I defer to your expertise, as to how you should apply this information moving forward. Links to outside resources can be found at the end of this document in sequential order.

Under PMC 9.20.120 Medical marijuanaStatutes adopted by reference; all sections of ESSB 5073 are law under Poulsbo Municipal Code. Section 403 of ESSB 5073, is the section that allows collective gardens, and the perimeters they follow. Section 413 reads: "Nothing in this chapter or in the rules adopted to implement it precludes a qualifying patient or designated provider from engaging in the private, unlicensed, noncommercial production, possession, transportation, delivery, or administration of cannabis for medical use as authorized under RCW 69.51A.040."

RCW 69.50.608 State preemption cites: "Local laws and ordinances that are inconsistent with the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of the city, town, county, or municipality." RCW 69.50.608 is not amended or referenced by ESSB 5073, which means it takes precedence, in addition to allowances of Sec. 403 and 413 of ESSB 5073.

The way I read this sequence of laws, is that any moratorium concerning medical cannabis gardens is both void, and illegal under state law. Furthermore, a collective garden could be established, without permission from the city. In lieu of this, if a collective garden were to exist in Poulsbo then the city interfered the city would be open to a lawsuit. It is not likely the state would waste their resources to prosecute any municipality's moratorium, although they could.

The twist, and consequent grey area, comes from federal law. A general rule of thumb is that any local or state government is not required to enforce federal law, but they cannot write laws that conflict with federal law. In this case, taxation is less an issue, since collective gardens are supposed to be non-profit; what becomes problematic is zoning and regulations for a federally

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controlled substance, which is in direct conflict with federal law.

In a letter written to Gov. Gregoire from the Department of Justice, the case is made that; while the DOJ will primarily direct investigations to those not in compliance with state law; they reserve the right to exercise authority to the fullest extent. This means any action by any municipal, county, or state official (elected or employed), could be charged with aiding and abetting the cultivation or distribution of a federally controlled substance; any tax revenues collected or distributed, or other monies accepted or paid, constitute money laundering; and since multiple people are involved, conspiracy charges could be added.

Please keep in mind, the scenario of the previous paragraph is "worst case". No elected official or government employee has ever been charged with implementing, or complying with, state medical marijuana laws. It would be political suicide for any administration to allow the DOJ to pursue such harsh measures.

In 2008, the U.S. Supreme Court refused to hear a case from California's Fourth District Appellate Court, which suggests the lower court ruling sets a precedent that "it is not the job of the local police to enforce the federal drug laws", which can further be interpreted as state medical marijuana laws are not preempted by federal law.

Washington State however does not have the same protections from federal intervention that some other states have. Washington is an affirmative defense state, meaning suspects can still be arrested and prosecuted it is not until they appear before a judge, that they may be acquitted of charges.

The hypocrisy of the federal stance on cannabis, and its schedule l status on the Controlled Substances Act, is disproved by the following criteria: in 1978 the federal government initiated a medical marijuana program called the IND Compassionate Access Program; in 2003 the U.S. Government was awarded Patent # 6630507 "Cannabinoids as Antioxidants and Neuroprotectants"; in 2010 the Department of Veterans Affairs announced that patients treated at VA facilities may use medical marijuana in the states where it is lawful (linked provision was revised in 2011). The federal drug law, under 21 U.S.C. Sec. 903, says the state, and not the federal government, has the authority to determine accepted medical use.

The federal claim that cannabis "has no medicinal value" is discredited by the fact that 16 states and the District of Columbia have medical marijuana laws on their books. Research has shown that cannabis is not only effective for approved conditions, but can actually kill some cancer cells, has shown preventative qualities for Alzheimer's, and is also useful in yet to be approved conditions such as OCD, ADD, and insomnia.

From the evidence presented in this document, the following conclusions can be made: - A moratorium on collective cannabis gardens is a violation of state law. - Federal charges, while possible, are highly unlikely for local officials. - Members of a collective garden will bear the risk of prosecution.

Two more considerations under way are the activities in the 2012 legislative session, and the current call to reschedule cannabis from schedule l to schedule ll on the USC Controlled Substances Act (CSA). These are both developing considerations, but the passage or acceptance of either will greatly impact any current discussion of this issue.

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(S)SB 6265 is placed on a second reading as of Feb. 10, 2012, to the Rules Committee. We don't know where this will go; or if passed, what parts will survive, amendments made, or if any of it will be vetoed if passed.

Rescheduling of cannabis on the CSA would alleviate much of the conflict experienced at a state and local level. However, this move will be met with much opposition from the legalization community, as it is our belief that cannabis does not belong on the CSA whatsoever; as long as alcohol and tobacco are not on the CSA, neither should marijuana.

While I may still disagree with a decision to move forward with an extension of the moratorium, I completely understand the reasoning; it may well prove to be the safest option. A moratorium is essentially opting to take no action, which does not conflict with federal law.

All of these considerations leave the city to assess what course of action will minimize risk of expense from unnecessary law suits. The city could elect to let the moratorium expire. The planning department could proceed with zoning rules, however, may not be in a position to implement them without violating federal law. The likeliest risk for the city would be a law suit, it is unlikely the state or federal government will pursue any action against any city official; operators of a collective garden bear the greatest risk.

While some of you may not agree with what I do as a legalization activist, hopefully by now you can at least appreciate that what I seek to do is bring clarity and fairness to our laws. Prohibition is the root of all this confusion, it will not be until people understand this, that we may all work together to find more practical and humane solutions.

Sincerely,

Troy Barber

Links:

PMC 9.20.120 Medical marijuanaStatutes adopted by reference:< http://www.codepublishing.com/wa/poulsbo/html/Poulsbo09/Poulsbo0920.html >

ESSB 5073:< http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bills /Senate%20Passed%20Legislature/5073-S2.PL.pdf >

RCW 69.50.608 State preemption:< http://apps.leg.wa.gov/rcw/default.aspx?cite=69.50.608 >

Department of Justice letter to Gov. Christine Gregoire:< http://reason.com/assets /db/13050453232855.pdf >

U.S. Supreme Court: State Medical Marijuana Laws Not Preempted by Federal Law:< http://www.safeaccessnow.org/article.php?id=5614 >

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IND Compassionate Access Program:< http://en.wikipedia.org /wiki/Compassionate_Investigational_New_Drug_program >

Patent #6630507:< http://www.google.com/patents/US6630507 >

Department of Veterans Affairs ACCESS TO CLINICAL PROGRAMS FOR VETERANS PARTICIPATING IN STATE-APPROVED MARIJUANA PROGRAMS:< http://www.va.gov /vhapublications/viewpublication.asp?pub_id=2362 >

Title 21 United States Code (USC) Controlled Substances Act; Section 903. Application of State law:< http://www.deadiversion.usdoj.gov/21cfr/21usc/903.htm >

SB 6265:< http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bills/Senate%20Bills/6265.pdf >

5 biggest concerns about SB 6265:< http://cdc.coop/lobby2012 >

Unlike Comment Share You, Jared Allaway, Troy Barber and 3 others like this. Troy Barber Please see this note for what everyone should know about city moratoriums on medical cannabis collective gardens. The note is written by me, and is addressed to the City of Poulsbo, however, the information is applicable to all cities. - Thanks! Monday at 9:40am Like

Sensible Kitsap Please note - there are two meetings in Kitsap this week. Port Orchard is on Tuesday, February 14th @ 7:00 pm. Poulsbo is the following night, Wednesday, Feb. 15, also @ 7:00. Anyone planning to attend these meetings should arrive early, as sometimes you will need to sign in before being able to speak. Be respectful, concise, and to the point. - Thanks! Monday at 9:44am Like

Carol Rains Nice Troy Barber, may I share this? Monday at 9:49am Like 2 Troy Barber Carol Rains - Yes, I wrote this for everyone. Check your local municipal codes. Some cities have their own laws pertaining to cannabis, others, such as Poulsbo, adopt the state RCW's by reference, those should be the only modifications you would need to make, other than changing wording to meet your own points of reference. Monday at 10:13am Like 2 Carol Rains Thanks Troy Barber,I live in Yakima. I also wan to share with other friends thank you again... Tuesday at 4:18pm Like 1