Our 5 biggest concerns about SB 6265

2011 Medical Use of Cannabis Act

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Date: February 6, 2012
To: Interested parties
Re: Our 5 biggest concerns about SB 6265

1. Giving too much for too little

SB 6265 would legalize a limited number of medical cannabis access points in a limited number of jurisdictions, but it will come at great cost to the Washington State medical cannabis community. Governor Gregoire — whose partial veto last year put an end to the "designated provider model" under which most access points were operating — has set boundaries on any medical cannabis bill she is to sign, and SB 6265 represents what is acceptable to her.

The bill would provide broad authority to local counties, cities and towns to regulate medical cannabis collective gardens and access points through zoning, taxation, licensing, health and safety requirements, etc. This will allow pot-friendly jurisdictions like Seattle and Tacoma to license, tax and regulate the medical cannabis businesses which have sprouted up in their midst, and over which they have uncertain authority.

In exchange, all other local jurisdictions get the clear right to effectively ban medical cannabis access points and collective gardens under their authority. Different standards will be codified for different parts of the state, and we will have "dry counties." It will fund the creation of a government registry of medical cannabis patients, which in other states have been disclosed, misused, and ordered by the courts to be turned over to the feds. This is too great a trade to legalize a handful of dispensaries.

2. Dry counties make no sense

SB 6265 would ban nonprofit patient cooperatives in thirty counties with less than 200,000 residents. In the other nine counties, local city councils may "opt out" of the state law — meaning they may ban access points. Neither of these components makes sense to us. Washington State voters enacted a medical cannabis law statewide. Let us keep a statewide law, and not go the route of California where every jurisdiction has its own medical cannabis law.

3. Local authority is too great

SB 6265 provides local jurisdictions with too much power to limit safe access to medical cannabis. City, town, county, or state employees may access patient records while engaged in administrating and enforcing the requirements of local ordinances or state law. Plant and useable cannabis limits may be further limited by local government ordinance. Local governments may impose zoning requirements, licensing requirements, permitting requirements, health and safety requirements, taxes or other conditions upon any entity producing, processing, or dispensing cannabis within their jurisdictions. Local governments may limit the number of patients that can grow together in a collective garden down to three.

4. State registry threatens gun rights, patient safety

The voters of Washington State believe medical cannabis patients are not criminals, but our state government still wants patients to register as if they were. Other states have registries, both optional and mandatory, and we should learn from their experiences. The federal government recently won court-ordered access to Michigan's medical cannabis registry. Bill sponsors claim that this registry will use computer technology to disallow federal access, but the whole system is designed to be used by our law enforcement, many of whom are federally deputized as members of drug task forces throughout the state.

The federal government believes medical cannabis patients forfeit their Second Amendment right to bear arms. This was ironically illustrated when activist Steve Sarich — whose guns were seized after a shootout with armed home invaders — was told by the King County Sheriff's Office that the FBI's background check system "informed us that possession of a medical drug card is sufficient to establish an inference of current use," which is cause to deny Sarich and all other medical cannabis patients their gun rights.

Do not believe that the government intends to protect you with its registry. Medical cannabis patients are best protected when off the government radar. The State of Washington should not spend our limited tax dollars to issue cards to medical cannabis patients which are sufficient cause to negate their Second Amendment rights.

"There's no question that the use of cannabis for medical purposes isn't authorized under federal law and I suspect there could be some problems for gun owners who sign onto a registry."

Don Pierce, Wa. Assoc. of Sheriff's and Police Chiefs, Jan 18, 2012

5. Removes most forgiving affirmative defense

SB 6265 repeals the most forgiving of our three affirmative defense clauses, RCW 69.51A.047. This section allows an authorized patient to raise an affirmative defense argument in court, even if they did not show their paperwork to police upon questioning. This had been a problem before, and authorized patients were denied their affirmative defense in court if they invoked their right to remain silent and not cooperate with police during a raid. Technically, it seems as though RCW 69.51A.047 can be raised for any number of plants or any amount of useable cannabis. It is a very forgiving affirmative defense, and you can bet the prosecutors' lobby hopes to "tighten" it up.

Lobby 2012

Following up on the legislative disaster of 2011, Washington State Senator Jeanne Kohl-Welles intends to file another comprehensive medical cannabis bill to provide fixes and clarity to the law.

Bill summary - Dec. 15, 2011

On December 15, 2011, Sen. Kohl-Welles sent a summary of her proposed legislation. She is seeking feedback from the medical cannabis community by December 22, 2011.

Collective garden restrictions

Amends the section which authorizes collective gardens

  • Membership in gardens is limited to patients and designated providers. Patients and providers may only be a member of one collective garden;
  • Collective gardens may have a maximum of 10 members and the membership period must be for at least 5 days;
  • Members may produce, process, transport, or deliver cannabis for the medical use of its members;
  • Plant and useable cannabis limits at set at 15 plants per member up to a total of 45 plants and 24 ounces of cannabis per member up to a total of 72 ounces;
  • Contributions of patients and providers may not be solely monetary;
  • Only one garden is allowed per tax parcel;
  • Local governments may impose zoning, licensing, permitting, and health and safety requirements, taxes, fees, or other conditions upon a collection garden but such regulation may not preclude the siting of collective gardens within that jurisdiction;
  • A copy of each member's valid documentation or registration card and proof of identity must be available on the premises.

Nonprofit patient cooperatives

Permits nonprofit patient cooperatives (NPCs) providing counties, cities and towns with opt-in and opt-out options

  • Counties (and the cities within those counties) with a population of less than 200,000 are permitted to opt-in. NPCs will not be permitted unless such jurisdictions allow by ordinance;
  • Counties (and the cities within those counties) with a population of 200,000 or more are permitted to opt-out. NPCs will be permitted in these jurisdictions unless they agree to prohibit them by ordinance. The population number is copied from the pilot project language in SB 5955;
  • If local jurisdictions allow NPCs they may impose zoning, licensing, permitting, and health and safety requirements, taxes, fees, or other conditions upon a NPC. Local jurisdictions may also set limits on the number of members.

NPCs must:

  • Be registered with the secretary of state as nonprofit corporations;
  • Limit membership to qualifying patients or their designated providers;
  • Confirm that a nonregistered patient qualifies for the medical use of cannabis by contacting the authorizing health care professional's office;
  • Comply with plant and useable cannabis limits
    • 15 plants per member up to a total of 99 plants
    • 24 ounces of useable cannabis per member up to a total of 144 ounces
  • Make available on the premises a copy of each member's valid documentation or registration card and proof of identity;
  • Only deliver cannabis to members;
  • Not permit cannabis to be consumed on the premises;
  • Ensure that cannabis cannot be viewed from outside the facility;
  • Not be located within 500 feet of community centers, child care centers, or schools. Local governments can increase/decrease this requirement;
  • Not advertise to the general public in any manner that promotes the use of cannabis. This prohibition does not apply to advertising in medical marijuana trade journals and on medical marijuana websites;
  • Set the price of cannabis and membership fees at a rate that only covers expenses. Fees may be adjusted based on individual consumption rates and level of participation in the NPC;
  • Allow only members or staff of the NPC to be on the premises except that NPCs may periodically allow media and government officials to visit the NPC;
  • Be independent facilities, unaffiliated with other NPCs. NPCs can have multiple locations but plant and usable cannabis limits cannot exceed what’s allowable for that one NPC;
  • Permit local government employees to access records while engaged in their official duties.

NPCs may:

  • Produce cannabis and/or obtain cannabis from collective gardens (subject to plant and useable cannabis limits);
  • Hire staff to assist in operating the NPC or use member volunteers;
  • Staff is provided with an affirmative defense unless they are patients or designated providers who are registered.

Members of a NPC may:

  • Only be a member of one NPC at a time;
  • Volunteer or work for a NPC but are not required to do so;
  • Also be a member of a collective garden if that garden produces cannabis for the NPC (patients and providers can only be a member of one collective garden and one NPC).

Medical cannabis registry

Establishes a voluntary registry within the Department of Health (DOH)

  • Patients and providers who are registered and in compliance with state law are provided with arrest protection;
  • Patients and providers who are not registered may assert an affirmative defense if they otherwise comply with the law;
  • DOH must adopt rules relating to the creation, implementation, maintenance, and upgrading of the registry. This process will be guided by a stakeholder advisory committee;
  • DOH may contract out the operation of the registry;
  • Law enforcement may only access the registry in connection with a specific legitimate criminal investigation;
  • Before seeking an arrest warrant law enforcement must make reasonable efforts to ascertain whether the person under investigation is registered;
  • Personally identifiable information must be nonreversible, not susceptible to linkage, and subject to current best differential privacy practices;
  • Registration cards must be issued on tamper resistant paper.

Other provisions

  • Removes obsolete references to licensed dispensaries, etc.,
  • Allows for the taxation of the medical use of cannabis until it is rescheduled;
  • Modifies the Washington State Institute for Public Policy study to focus on activities of local governments;
  • Requires cannabis exceeding a total of 24 ounces to be transported in a locked metal box that is bolted to the transporting vehicle unless it is being transported by a patient or provider and is for the personal medical use of the patient or the provider's patient;
  • Prohibits law enforcement from discriminating against non-registered patients;
  • Exempts records containing names and other personally identifiable information relating to patients, providers, collective gardens and NPCs from the public records act.
  • Disallows conviction of DUI for qualifying patients based solely on the presence, or presence in a certain concentration, of components or metabolites of cannabis. Proof of actual impairment is required.