OMW Municipal Law Blog

On Friday, April 29, 2011, Governor Gregoire exercised her partial veto powers, vetoing the portions of ESSB 5073 that would direct state employees of the Department of Health and Department of Agriculture to authorize and license commercial businesses that produce, process, or dispense cannabis.  Consequently, most of the surviving provisions of the bill afford increased protection for qualifying patients and their designated providers to grow cannabis for a patient’s use or to participate in collective gardens. 

Of importance for Washington cities and towns, the Governor approved Section 1102 of ESSB 5073.  Section 1102 provides that cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: zoning requirements, business licensing requirements, health and safety requirements, and business taxes.  Section 1102 further provides that nothing in the act is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction.  The Governor specifically stated in her veto message that she approved Section 1102 with the understanding that the provision that local governments’ zoning requirements cannot “preclude the possibility of siting licensed dispensers within the jurisdiction” was without meaning in light of the vetoes of other sections providing for licensed dispensers.  Consequently, the bill still provides local governments with the authority to establish land use regulations relating to collective gardens and, presumably, other producers, processors, and dispensaries if they were to be allowed under state law in the future.

 Also of interest to Washington cities and towns is that the Governor signed Section 404 of ESSB 5073.  Section 404 provides that, although a person may stop serving as a designated provider to a particular qualifying patient at any time, that person may not begin serving as a designated provider to a different qualifying patient until fifteen days have elapsed from the date the last qualifying patient designated him or her to serve as a provider.  This Section promises to make it far more difficult for existing medical marijuana dispensaries to comply with state law.

 The Governor made clear in her veto message that she remains open to legislation to exempt qualifying patients and their designated providers from state criminal penalties when they join in nonprofit cooperative organizations to share responsibility for producing, processing, and dispensing cannabis for medical use.  The Legislature may consider alternative bills during its Special Session, which convened on April 26.  OMW will continue to post updates on this blog if any activity on the cannabis bill occurs during the Special Session.

A link to the Governor’s veto message is provided here.

This blog article serves as a reminder that last year the legislature enacted RCW 42.17A.575, which provides that no municipal officer may speak or appear in a public service announcement that is broadcast, shown, or distributed in any form whatsoever during the period beginning January 1st and continuing through the general election if that official or officer is a candidate. 

A public service announcement means a communication that meets all of the following criteria.  The communication is:

(a) Designed to benefit or promote the community’s health, safety or welfare or nonprofit community events;

(b) Not selling a product or service;

(c) Sponsored by an organization with a history of routinely providing the community such outreach public service messages in the service area of the organization;

(d) Of primary interest to the general public and is not targeted to reach only voters or voters in a specific jurisdiction;

(e) Not coordinated with or controlled or paid for by a candidate’s authorized committee or political committee;

(f) Subject to the policies for public service announcements of the entity broadcasting, transmitting, mailing, erecting, distributing or otherwise publishing the communication including policies regarding length, timing, and manner of distribution; and

(g) One for which the arrangements to include a reference or depiction of the candidate or candidates in the communication were made at least six months before the candidate became a candidate.

Examples of public service announcements include but are not limited to communications regarding nonprofit community events, outreach or awareness activities such as: Breast cancer screening, heart disease, domestic violence, organ donation, emergency or other disaster relief for organizations such as the Red Cross, programs designed to encourage reading by school children, childhood safety, fund drives for charitable programs such as United Way, and similar matters. 

This law applies to all “municipal officers,” which is otherwise defined in state law as “all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer.” RCW 42.23.020(2).

For the Public Disclosure Commission’s Interpretation of this statute, please click here.

The Washington Legislature is currently considering two bills relating to medical marijuana or cannabis.  The first bill, ESSB 5073, passed the Senate on March 2nd, with a vote of 29 yeas and 20 nays.  The House Committee on Health Care & Wellness held its first public hearing on ESSB 5073 on March 14th and will hold an executive session on March 21st. 

ESSB 5073 would establish a regulatory system for producing, processing, and dispensing cannabis intended for medical use; establish protections from criminal liability and arrest for qualifying patients, designated providers, health care professionals, licensed producers, licensed processors, and licensed dispensers; and establish a voluntary registry in which qualifying patients and designated providers may enroll and receive arrest protection.  The Department of Agriculture would administer the licensing program for producers and processors, and the Department of Health would establish a regulatory system to issue credentials to licensed dispensers.  Dispensers will only be able to sell cannabis that they have received from producers or processors, and they may only sell to qualifying patients, designated providers, or producers.  Prior to selling or delivering cannabis to a patient or designated provider, the dispenser will have to contact the patient’s health care provider to confirm the patient’s qualification for obtaining cannabis for medical use.  Importantly for cities and towns, the legislation provides that licensed dispensers may not sell cannabis in any city or town without first being authorized to do so by the city or town council.  Further, municipalities are able to adopt “reasonable” zoning requirements, business licensing requirements, or business taxes pertaining to the production, processing, or dispensing of cannabis products that are adopted pursuant to their authority and duties under the Growth Management Act.  There is no indication in the bill analysis and reports what the legislature considers to be a “reasonable” zoning, business licensing, or business tax requirement.  However, the legislation calls for a study to be completed by July 1, 2014, which would examine, among other factors, diversion of cannabis intended for medical use to nonmedical uses and incidents of home invasion burglaries, robberies, and other violent and property crimes associated with qualifying patients accessing cannabis for medical use, which could eventually become useful in creating a legislative record for municipalities in regulating producers, processors, and dispensers.  Finally, the legislation addresses cannabis producers and dispensaries currently in operation.  According to Section 1201 of the bill, the legislature intends that currently-operating producers and dispensaries become licensed, but they will not be able to become licensed until the Department of Agriculture and the Department of Health adopt their regulations.  Thus, currently-operating producers and dispensaries are likely to remain unlicensed until July 1, 2012, and consequently, owners run the risk of arrest between the effective date of ESSB 5073 and the time they become licensed.  Nevertheless, the legislature has provided an affirmative defense to those currently-operating producers and dispensaries if charged with a violation of state law in the interim.  To be eligible for this affirmative defense, the following criteria must be satisfied:

• In the case of producers, solely provide cannabis to cannabis dispensaries for the medical use of cannabis by qualified patients;
• In the case of dispensaries, solely provide cannabis to qualified patients for their medical use;
• Be registered with the secretary of state as of May 1, 2011;
• File a letter of intent with the department of agriculture or the department of health, as the case may be, asserting that the producer or dispenser intends to become licensed in accordance with ESSB 5073 and rules adopted by the appropriate department; and
• File a letter of intent with the city clerk if in an incorporated area or to the county clerk if in an unincorporated area stating they operate as a producer or dispensary and that they comply with the provisions of this chapter and will comply with subsequent department rule making.

Upon receiving a letter of intent, the department of agriculture, the department of health, and the city clerk or county clerk must send a letter of acknowledgment to the producer or dispenser.  The producer and dispenser must display this letter of acknowledgment in a prominent place in their facility.  Left unanswered is whether this provision overrides city zoning and business license requirements that may apply.

In addition, the legislature is considering HB 1550, though the last action was a public hearing before the House Committee on Public Safety & Emergency Preparedness on February 8th.  HB 1550 would legalize possession of cannabis for adults over the age of 21 years old.  Under HB 1550, licensing, taxing, and selling cannabis would occur under the regulation of the Liquor Control Board (LCB).  A state tax of 15 percent per gram of cannabis sold would be imposed, and agricultural farmers wishing to produce, process, or package cannabis would have to obtain a license through the LCB at an annual cost of $5,000.  Cannabis and hemp products would be sold in liquor stores to adults (similar to alcohol) and regulated by the LCB.  However, it would be a gross misdemeanor offense to: (1) sell cannabis without a valid license; or (2) distribute cannabis to a juvenile under the age of 21 years old.  Adults could grow cannabis for personal use within certain specifications.  If passed, this bill would not take effect until July 1, 2013.

Two recent court decisions in Seattle provide clarification on regulation of firearms.

 Background

On February 10, 2010, King County Superior Court Judge Catherine Shaffer signed an Order Granting Plaintiffs’ Motion for Summary Judgment in the case of Chan v. Seattle (“State Court Order”).  The State Court Order found that the Seattle Department of Parks and Recreation’s Rule/Policy No. P 060-8.14 (“Firearms Rule”) violates a Washington statute, RCW 9.41.290, and enjoined (stopped) the City from enforcing the Firearms Rule.  As part of the State Court Order, Judge Shaffer found that “Plaintiffs have a clear legal or equitable right to carry firearms under federal and state constitutions.”  The statute that the State Court Order is based on states, in part, that the state “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state . . . . Cities, towns and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law. . . . Local laws and ordinances that are inconsistent with, or more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed. . . .”

On March 11, 2010, in a federal case called Warden v. Nickels, United States District Court Judge Marsha Pechman filed an Order Granting Motion to Dismiss (“Federal Court Order”) dismissing a challenge to the Firearms Rule.  The Federal Court Order refers to the State Court Order, but the Federal Court Order addresses different issues; specifically, whether the Firearms Rule violates the U.S. or Washington State Constitutions.  The Federal Court Order holds that the Firearms Rule is not unconstitutional under either the U.S. Constitution’s Second Amendment or Fourteenth Amendment or under the Washington State Constitution. 

In other words, the City of Seattle’s Firearms Rule is no longer in effect because it violates a state law (RCW 9.41.290), but under the Federal Court Order, it would be possible for the City to enact a rule like the Firearms Rule if the state statute allowed for it.  One or both of the orders could be modified by subsequent court decisions or legislative action, however.