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Medical Marijuana Reform Legislation Enacted


May 14, 2015 by Jim Doherty
Category: Marijuana

Medical Marijuana Reform Legislation Enacted

Here’s a toast to the Washington State Legislature! On Friday, April 24, Governor Jay Inslee approved, with several section vetoes, Second Substitute Senate Bill 5052 (2SSB 5052), which significantly revamps the entire medical marijuana structure in Washington. This legislation -- named the “Cannabis Patient Protection Act” -- was sorely needed. The legislation is lengthy (72 pages), partly because of its complexity and partly because it amends numerous existing statutes. Section 2 of 2SSB 5052 provides a  a good statement of its intent, and the Final Bill Report provides an excellent, detailed summary of its provisions.

First, a nomenclature change: the relevant statutes (chapter 69.51A RCW) previously referred to “medical cannabis” throughout, but they are now amended to refer to “medical marijuana.” However, the Legislature was not consistent with this change in how it named this legislation and in how it renamed the Washington State Liquor Control Board as the Washington State Liquor and Cannabis Board, presumably so that the board could retain the same initials, LCB.

The entire medical marijuana system will now be under the jurisdiction of the LCB, and state licenses will be required for anyone making retail sales of medical marijuana or growing or processing medical marijuana for retail sale. Businesses now operating as medical marijuana collective gardens and dispensaries will have to make the shift to operating as licensed marijuana businesses, with all of the record-keeping now applicable to recreational marijuana producers, processors, and retailers. If a recreational marijuana store chooses to obtain an LCB endorsement as a retailer of medical marijuana, the retail staff will need to be trained on various aspects of medical marijuana. See Section 37 of 2SSB 5052.

The LCB will be busy over the coming year, as will many of the medical marijuana businesses that have flourished in some jurisdictions around the state since even before the passage of I-502. It has been a free-for-all out there, and this legislation is a significant game-changer. Section 6 of 2SSB 5052 provides standards for the LCB to conduct a “comprehensive, fair, and impartial evaluation of the applications timely received.” The LCB is authorized to determine how much additional marijuana plant canopy will need to be developed to provide for the growing of medical marijuana, and the LCB will be determining how many additional retail stores will be needed to provide access to medical marijuana by qualifying patients or their caregivers. The LCB must reopen the license period for retail stores and allow for additional licenses to be issued to address the needs of the medical market. However, nothing in the statutes has changed regarding the authority of local governments to adopt and enforce zoning provisions relating to marijuana uses.

The Legislature included significant protections for medical marijuana patients who voluntarily sign up for the state medical marijuana registry after meeting the stricter requirements for being certified as a medical marijuana patient; see Sections 17 through 21 of 2SSB 5052. Qualifying patients will be issued “recognition cards.” Information from the state registry database regarding who is on the database will be exempt under the Public Records Act, except as necessary for retail sales and criminal justice purposes; see Section 22 and 23 of 2SSB 5052.

The statutes regarding “collective gardens” are repealed, effective July 1, 2016; see Section 49 of 2SSB 5052. The legislation instead provides for LCB-certified “cooperatives” with a maximum of four patients or designated providers – and there will be a 60-day waiting period between adding new members. See Section 26 of 2SSB 5052 for the details on these LCB-registered growing cooperatives. The location of the cooperative must be registered with LCB, but cooperatives are permitted only if they are at least one mile away from a marijuana retailer. A cooperative can have up to four patients or designated providers and a maximum of 60 plants and 72 ounces of useable marijuana. (No more than 15 plants may be grown in a housing unit, unless the housing unit is the location of a cooperative.)

Cities and counties should review their existing zoning regulations regarding collective gardens - which will by July 2016 either have to become cooperatives or cease operation - and recreational marijuana uses to ensure they are consistent with this legislation and with rules to be adopted by the LCB to implement it. And, once the revised system is functioning, with the LCB having the primary enforcement role, local governments can play a role in assisting with oversight and enforcement of the LCB-registered cooperatives; see subsection (7) of Section 26 and subsection (3) of Section 27, the latter of which states:

Cities, towns, counties, and other municipalities may create and enforce civil penalties, including abatement procedures, for the growing or processing of marijuana and for keeping marijuana plants beyond or otherwise not in compliance with this section.

So, local governments may want to consider their enforcement role beyond that of ensuring compliance with zoning regulations. 

The legislation has 52 sections (though the Governor vetoed seven of those), and there are three different effective dates for the various sections. (As passed by the Legislature, this bill was not to be effective unless a companion bill, HB 2136, was enacted by October 1, 2015, but the Governor vetoed that section.) Here is a brief summary for the effective dates of some of the key provisions.         

Effective immediately:

  1. Creation of the secure, confidential medical marijuana authorization database (Section 21);
  2. An exemption for disclosure of database information is added to the public records act (Section 22); and
  3. Controlled purchase programs to make sure minors are not purchasing marijuana at licensed stores (Section 33).

Effective July 24, 2015:

  1. More detailed standards for the LCB when evaluating applications for marijuana licenses (Section 6);
  2. Authorization for the LCB to determine increased production capacity for medical marijuana and increased retail stores (Section 8); and
  3. Requirement for recreational stores to obtain LCB endorsement if they intend to sell medical marijuana (Section 10).

Effective July 1, 2016:

  1. Detailed requirements for staff training at any retail store selling medical marijuana; training for entering information into confidential patient database (Section 12);
  2. Qualified medical marijuana patients who have a current recognition card cannot be arrested for possession or delivery of marijuana offenses if they are in compliance with the medical marijuana laws (Section 24);
  3. Qualified medical marijuana patients or designated caregivers who are not entered into the state database and who do not have a recognition card can raise their status as a medical marijuana patient as an affirmative defense at trial if prosecuted (Section 25);
  4. Details regarding cooperatives formed by up to four medical marijuana patients or designated caregivers (Section 26); and
  5. Repeals all provisions regarding what were known as “collective gardens” (Section 49).

One important goal of this legislation is to meet the concerns of the federal government as expressed in the “Cole memo,” and to move toward an integrated marijuana industry in the state with uniform regulations and accountability. As a result of this legislation, there will be an increase in the number of licensed retail stores, and it is very likely that this increase will decrease the amount of unregulated and untaxed marijuana being sold in the state. As the marijuana industry matures there will be fluctuations in the supply and demand, but the retail price of licensed marijuana product should move lower and be more competitive with prices offered by illegal street dealers.

Will these new regulations motivate additional cities and counties to repeal their prohibition ordinances and allow licensed marijuana businesses? Time will tell. If the marijuana industry matures into a responsible, tax-paying segment of our communities and provides convenient access to certified and tested products, I would not be surprised if more jurisdictions choose to cooperate with this innovative approach.


Image courtesy of Dank Depot.
 

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Jim Doherty

Jim has over 24 years of experience researching and responding to varied legal questions at MRSC. He is the lead attorney consultant and has special expertise in transmission pipeline planning issues, as well as the issues surrounding medical and recreational marijuana.

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