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A Court Decision Says Medical Marijuana Dispensaries Are Illegal in Washington State

Ted S. Warren
AP Photo
ILE - In this Wednesday, Nov. 7, 2012 file photo, medical marijuana is packaged for sale in 1-gram packages.

At some point today, depending on where you live, you are likely to pass by a medical marijuana collective garden, which is more commonly known as a dispensary.

These places have been allowed to flourish in cities like Seattle. But according to a ruling last March by Washington’s State Court of Appeals, dispensaries are actually illegal and communities have the authority to ban them.

This is what the city of Kent would like to do. Kent passed a zoning ordinance in 2012 to keep dispensaries out. The city is now fighting a lawsuit by the medical marijuana lobbying group Cannabis Action Network. The group says the ordinance is illegal. On Oct. 9, The Washington State Supreme Court will review the case and decide whether to take it up.

'Under State Law As It Currently Stands, Medical Marijuana Is Not Legal'

Recreational marijuana in Washington state is regulated every step of the way. Despite efforts by lawmakers, medical marijuana has little oversight.

“Under state law as it currently stands, medical marijuana is not legal,” said Pat Fitzpatrick, a deputy prosecutor for the city of Kent. “The city of Kent is allowed to prohibit something that’s illegal under state law. In fact, Kent’s ordinance is quite consistent with state law, and the court agreed.”

The law that Kent, the judges and the plaintiffs in this case are all looking at for guidance was enacted by former Gov. Christine Gregoire in 2011. It would have created a patient registry and licensed dispensaries. But Gregoire took all of this out after getting a letter from the U.S. attorney’s office.

The letter warned that state employees carrying out the law as it was originally written could possibly have been arrested by federal agents. Kristie Weeks with the State Department of Health says the vetoes left the legislation in a confusing state.

“Although that 2011 bill was designed to legalize marijuana possession for patients and as a collective garden, that legalization was only for people who were registered in a registry. The governor vetoed the registry. Because there is no registry, the bill, as it was enacted after the veto, only provides medical marijuana users with an affirmative defense to criminal prosecution. And that includes patients who have banded together for a collective garden, aka a dispensary," Weeks said.

An affirmative defense means that if you are caught with an illegal amount of marijuana, then you are not protected by state law. The burden is on you to prove you are a medical marijuana patient. This is the position the Court of Appeals took in its decision last spring. The court says without a registry, collective gardens are illegal, and Kent has the right to pass ordinances against unlawful activity.

'What The Cities Are Doing Is They Are Preempting State Law'

Steve Sarich, the spokesman for the Cannabis Action Coalition, insists the 2011 law doesn’t give Kent any authority to ban collective gardens.

“What the cities are doing is they are preempting state law,” Sarich said. “When the governor vetoed all the sections, she left in one section which would have given the cities and the counties the right to zone and license dispensaries. There was nothing in there about controlling collective gardens whatsoever.”

Sarich suffers from severe back pain and has a marijuana brownie with a glass of milk before going to bed each night. He vows to keep fighting for fellow patients.

“From a moral standpoint, what they are trying to do is stop patients from getting medication. Why is that fair? Why is that humane? We just had to draw a line in the sand,” said Sarich.

There is a hold on Kent’s ordinance until this lawsuit is resolved. If the Court of Appeals’ decision stands, it will set a precedent for other cities and towns in Washington to write similar laws if they so choose.

Guidance could also come from the state legislature. Cities, including Seattle, are asking lawmakers to take medical marijuana out of the grey realm that it’s in and create clear laws to regulate the industry, or fold it into the recreational law. 

Jennifer Wing is a former KNKX reporter and producer who worked on the show Sound Effect and Transmission podcast.