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HomeMy WebLinkAbout01/21/2014 08 Marijuana Production, Processing, and Retailing Land Uses - Public HearingBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: 1/21/2014 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ITEM TITLE: SUBMITTED BY: SUMMARY EXPLANATION: Public hearing to consider the Yakima Planning Commission's recommendation, findings of fact, and ordinance amending YMC 15.01.035 regarding banning marijuana production, processing, and retailing land uses within the City of Yakima. Mark Kunkler, Senior Assistant City Attorney (509) 575-3552 Steve Osguthorpe, AICP, Community Development Director (509) 575-3533 On November 5, 2013, following a public hearing and action affirming a moratorium adopted October 8, 2013 prohibiting the receipt of applications and issuance of permits and approvals for marijuana production, processing and retailing in the City of Yakima, the City Council directed staff to prepare legislation to amend the Yakima Municipal Code to ban marijuana production, processing and retail land uses within the city. The Yakima Planning Commission held a public hearing on January 8, 2014 and conducted a special meeting on January 15, 2014, during which the Planning Commission adopted Findings of Fact, Conclusions of Law and Recommendation to the City Council. The Recommendation asks the City Council to adopt and approve the proposed Ordinance banning marijuana production, processing and retailing within the City of Yakima. A public hearing before the City Council to receive the Recommendation of the Planning Commission and public comment is set for January 21, 2014. This public hearing concerns a "legislative" function of the City Council, and new comment may be received as well as comments and arguments based on the record before the Planning Commission. The proposed Ordinance, as presented, does not ban or prohibit individual use, possession or consumption of marijuana in accordance with Initiative 502. It bans only the land uses of production, processing and retailing of marijuana within the City of Yakima. Resolution: Other (Specify): Ordinance: X Contract: Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: Improve the Built Environment City Manager Staff recommends approval and adoption of the Ordinance. Upon the effective date of the Ordinance, the moratorium adopted pursuant to Ordinance No. 2013-048 shall expire. ATTACHMENTS: Description Upload Date Memo to Council 01.13.14 1/13/2014 ordinance 1/16/2014 findings of fact and vpc recommendation 1/16/2014 AGO opinion 1/16/2014 full record 1/16/2014 Type Cover Memo Ordinance Cover Memo Cover Memo Cover Memo CITY OF YAKIMA LEGAL DEPARTMENT 200 South Third Street, Yakima, Washington 918901 (509)575-6030 Fax (509)575-6160 TO: MEMORANDUM January 13, 2014 Honorable Mayor and City Council Tony O'Rourke, City Manager FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Public Hearing — Recreational Marijuana — January 21, 2014 Meeting On January 21, 2014, the City Council will conduct a public hearing concerning a proposed amendment to the Yakima Municipal Code banning marijuana production, processing and retailing within the City of Yakima. The proposed amendment follows a previous 2012 enactment banning medical marijuana dispensaries and collective gardens, YMC 15.01.035. The Yakima Planning Commission has held a public hearing on January 8, 2014 regarding the proposed legislation, followed up by a special meeting on January 15, 2014. Following this discussion, the Planning Commission adopted Findings of Fact, Conclusions of Law and Recommendation to the City Council. It is the recommendation of the Planning Commission to adopt the proposed amendment banning marijuana production, processing and retailing within the City of Yakima. The following documents comprise the record in this proceeding: (a) The Yakima Planning Commission's Findings of Fact, Conclusions of Law and Recommendation to City Council, adopted January 15, 2014. (b) (Proposed) Ordinance amending YMC 15.01.035 regarding marijuana production, processing and retailing. (c) Initiative Measure No. 502. (d) Chapter 314-55 WAC, regulations adopted by the Washington State Liquor Control Board implementing Initiative 502. (e) City of Yakima Ordinance No. 2013-148, enacting moratorium. Memorandum to Honorable Mayor and Members of the City Council January 13, 2014 Page 2 (f) Resolution No. 2013-142, adopting Findings of Fact in support of moratorium enacted per Ordinance No. 2013-148. (g) Memorandum to City Council dated October 2, 2013 regarding Initiative 502. (h) Memorandum dated August 29, 2013 from U.S. Department of Justice, Office of the Deputy Attorney General, regarding marijuana enforcement in states of Colorado and Washington. (i) Letter from City Attorney dated December 10, 2013 to Washington State Attorney General's Office. (j) "White Paper on Marijuana Dispensaries," submitted by California Police Chiefs Association Task Force on Marijuana Dispensaries (April 22, 2009). (k) Materials dated November 4, 2013 in support of medical marijuana facilities, submitted to City Council by MCS of Central Washington. (Omitting copy of City of Spokane Ordinance No. C-35037 creating new and amended municipal code provisions regulating medical marijuana collective gardens and land uses for production, processing and retailing of recreational marijuana. Reference is made to Spokane Municipal Code Chapters 10.49 and 10.50, which are available for view on the City of Spokane's web site.) (I) Memorandum from Senior Assistant City Attorney Mark Kunkler, dated January 10, 2014, providing additional information regarding projected revenues from the production, processing and retailing of marijuana. This memorandum includes a copy of a December 17, 2013 Tri -City Herald newspaper article containing an interview on this subject with Governor Jay Inslee. (m) Copies of correspondence received by the Planning Commission at the public hearing of January 8, 2014. The public hearing before the City Council on January 21, 2014 concerns a legislative action and is an open record public hearing. This means that new evidence and comments can be received and considered by the City Council. AN ORDINANCE ORDINANCE NO. 2014 - amending Section 15.01.035 of the Yakima Municipal Code prohibiting production, processing and/or retail outlets and sales of marijuana in all zones of the city; and terminating moratorium implemented pursuant to Ordinance No. 2013-048. WHEREAS, on November 6, 2012, the voters of the State of Washington approved Initiative Measure No. 502 ("Initiative 502"), now codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which provisions (a) decriminalized possession and use of certain amounts of marijuana and marijuana paraphernalia; (b) amended state laws pertaining to driving under the influence of intoxicants to include driving under the influence of marijuana; and (c) authorized promulgation of regulations and issuance of licenses by the Washington State Liquor Control Board ("WSLCB") for the production, processing and retailing of marijuana; and WHEREAS, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Under the Controlled Substances Act (also "CSA"), Congress established five "schedules" of controlled substances. Controlled substances are placed in specific schedules based upon their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b); and WHEREAS, marijuana is currently listed as a "Schedule!" controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a); and WHEREAS, under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful; and WHEREAS, the United States Supreme Court has held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule I controlled substance pursuant to the Controlled Substances Act, and that, under the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over any conflicting state law; and 1 WHEREAS, WAC 314-55-020(11) promulgated by the WSCLB under the authority of Initiative 502 describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements; and WHEREAS, pursuant to Article 11, § 11 of the state Constitution, the general police powers granted to cities empower and authorize the City of Yakima to adopt land use controls to provide for the regulation of land uses within the city and to provide that such uses shall be consistent with applicable law; and WHEREAS, one of the primary purposes of the Growth Management Act is to empower cities planning under the Act to develop and adopt land use controls reflecting the local needs of the community. As provided in RCVV 36.70A.010: "It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning;" and WHEREAS, the City Council finds and determines that Initiative 502 does not preempt the City of Yakima from exercising and administering its constitutional and statutory land use regulatory authority to either allow and regulate land uses within the city limits, or to prohibit and ban such uses; and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retailing as defined by Initiative 502 and regulations promulgated thereunder is consistent with federal law and not in conflict therewith; and WHEREAS, the City Council finds and determines that prohibiting within the City of Yakima the production, processing and retailing of marijuana, as set forth in Initiative 502 and its implementing regulations, will maintain adequate access in areas in the vicinity of the city for marijuana production, processing and retailing for residents within the City of Yakima, and is consistent with the provisions of Initiative 502 and its implementing regulations; and WHEREAS, the City Council finds and determines that documented secondary effects associated with analogous medical marijuana dispensaries in other cities and counties include murders, robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 756, 300 P.3d 494 (2013); and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retail uses within the City of Yakima is the only 2 effective means to protect residential districts, recreational facilities, families and children within the City of Yakima; and WHEREAS, the City Council of the City of Yakima finds and determines that Section 15.01.035 of the Yakima Municipal Code should be amended to prohibit marijuana production, processing and retailing, as defined in Initiative 502 and its implementing regulations, within the City of Yakima; and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retailing is subject to the authority and general police power of the city to develop specific and appropriate land use controls regarding such uses, and the City Council reserves its powers and authority to appropriately amend, modify and revise such prohibition to implement such land use controls in accordance with applicable law; and WHEREAS, the City Council finds and determines that such amendments authorized herein are not intended to regulate the individual use of marijuana as authorized by Initiative 502 ; and WHEREAS, the Planning Commission has held and conducted an open record public hearing on January 8, 2014, with special meeting on January 15, 2014, all pursuant to required notice and applicable procedures of the City of Yakima, and has adopted findings of fact and conclusions of law in support of its recommendation for adoption of the above-described amendments, which Findings of Fact and Conclusions of Law are of record and incorporated herein by this reference; and WHEREAS, the City Council has held and conducted a public hearing on January 21, 2014 and considered the recommendation of the Planning Commission, the record herein, and all evidence and testimony presented; and WHEREAS, the City Council finds and determines that approval of such amendments is in the best interests of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The City Council hereby adopts as its own, and approves, the Findings of Fact, Conclusions of Law and Recommendation of the Planning Commission adopted by the Planning Commission following its special meeting on January 15, 2014, of record herein. Section 2. Section 15.01.035 of the Yakima Municipal Code is hereby amended to provide as follows: 15.01.035 Illegal Uses Prohibited. A. General. No use that is illegal under local, state or federal law shall be allowed in any zone within the city. 3 B. Specific Application — Medical Marijuana Dispensaries and Collective Gardens. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating dispensaries of cannabis and/or collective gardens for the production, distribution and dispensing of cannabis for medical uses, all as further defined and set forth in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington, such uses are not allowed in any zone within the city. For purposes of this section, "dispensary" means any person, entity, site, location, facility, business, cooperative, collective, whether for profit or not for profit, that distributes, sells, dispenses, transmits, packages, measures, labels, selects, processes, delivers, exchanges or gives away cannabis for medicinal or other purposes. C. Production, Processing and Retailing of Marijuana Prohibited. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating production, processing, retail sale and retail outlets for the sale of marijuana and marijuana - infused products, all as defined in Initiative Measure No. 502, as codified in the Revised Code of Washington, and implementing regulations in Chapter 314-55 of the Washington Administrative Code, as now existing or hereafter amended, such uses are each prohibited and not allowed in any zone within the city. Section 3. Except as amended herein, Title 15 of the Yakima Municipal Code shall remain unchanged. Section 4. The moratorium adopted and imposed on October 8, 2013 pursuant to Ordinance No. 2013-048 shall terminate upon the date this ordinance becomes effective in accordance with the provisions of Section 5 below. Section 5. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 21s1 day of January, 2014. ATTEST: City Clerk Publication Date: Effective Date: 4 Mayor BEFORE THE PLANNING COMMISSION OF THE CITY OF YAKIMA In the matter of: Proposed Regulation of Marijuana Production, Processing and Retail Uses in City of Yakima Public Hearing: January 8, 2014 Special Meeting: January 15, 2014 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION THIS MATTER, having come before the Planning Commission of the City of Yakima (hereafter "Planning Commission") upon public hearing on January 8, 2014, and the Planning Commission having considered the record herein and all evidence and testimony presented, hereby makes the following FINDINGS OF FACT 1. A public hearing was held before the Planning Commission on January 8, 2014 pursuant to notice duly published, all in accordance with applicable procedures of the Yakima Municipal Code and state law, with a special meeting conducted January 15, 2014. 2. No objection was made to any member of the Planning Commission hearing and deciding all issues in this matter. 3. On November 6, 2012, the voters of the State of Washington approved Initiative Measure No. 502, ("Initiative 502"), now codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which provisions (a) decriminalized possession and use of certain amounts of marijuana and marijuana paraphernalia; (b) amended state laws pertaining to driving under the influence of intoxicants to include driving under the influence of marijuana; and (c) authorized promulgation of regulations and issuance of licenses by the Washington State Liquor Control Board ("WSLCB") for the production, processing and retailing of marijuana. 4. Congress has previously enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Under the Controlled Substances Act (also "CSA"), Congress established five "schedules" of controlled substances. Controlled 1 substances are placed in specific schedules based upon their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b). 5. Marijuana is currently listed as a "Schedule 1" controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a). 6. Under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. 7. The United States Supreme Court has held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule I controlled substance pursuant to the Controlled Substances Act, and that, under the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over any conflicting state law. 8. WAC 314-55-020(11) promulgated by the WSCLB under the authority of Initiative 502 describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. 9. Pursuant to Article 11, § 11 of the state Constitution, the general police powers granted to cities empower and authorize the City of Yakima to adopt land use controls to provide for the regulation of land uses within the city and to provide that such uses shall be consistent with applicable law. 10. One of the primary purposes of the Growth Management Act is to empower cities planning under the Act to develop and adopt land use controls reflecting the local 2 needs of the community. As provided in RCW 36.70A.010: "It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning." 11. The Planning Commission finds and determines that Initiative 502 does not preempt the City of Yakima from exercising and administering its constitutional and statutory land use regulatory authority to either allow and regulate land uses within the city limits, or to prohibit and ban such uses. 12. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retailing as defined by Initiative 502 and regulations promulgated thereunder is consistent with federal law and not in conflict therewith. 13. The Planning Commission finds and determines that prohibiting within the City of Yakima the production, processing and retailing of marijuana, as set forth in Initiative 502 and its implementing regulations, will maintain adequate access in areas in the vicinity of the city for marijuana production, processing and retailing for residents within the City of Yakima, and is consistent with the provisions of Initiative 502 and its implementing regulations. 14. The Planning Commission finds and determines that documented secondary effects associated with analogous medical marijuana dispensaries in other cities and counties include murders, robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 756, 300 P.3d 494 (2013). 15. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retail uses within the City of Yakima is an effective means to protect residential districts, recreational facilities, families and children within the City of Yakima. 16. The Planning Commission finds and determines that Section 15.01.035 of the Yakima Municipal Code should be amended to prohibit marijuana production, processing and retailing, as defined in Initiative 502 and its implementing regulations, within the City of Yakima. 17. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retailing is subject to the authority and general police 3 power of the city to develop specific and appropriate land use controls regarding such uses, and the City Council reserves its powers and authority to appropriately amend, modify and revise such prohibition to implement such land use controls in accordance with applicable law. 18. The Planning Commission finds and determines that such amendments authorized herein are not intended to regulate the individual use of marijuana as authorized by Initiative 502. 19. The Planning Commission finds and determines that Title 15 of the Yakima Municipal Code should be amended as set forth in Exhibit "A" attached hereto and incorporated herein by this reference, to add a new subsection to YMC 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed in any zone within the city, and that such amendment specifically applies to prohibit, within the City of Yakima, the production, processing and retail sale and distribution of marijuana, all as specifically defined and described in Initiative Measure No. 502 and Chapter 314-55 of the Washington Administrative Code (WAC), as now existing or hereafter amended. 20. The Planning Commission finds and determines that the proposed amendment as set forth in Exhibit "A" does not regulate, and is not intended to regulate, individual possession, consumption and use of marijuana as authorized pursuant to Initiative Measure No. 502, codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which possession, consumption and use shall be subject to the provisions of such state statutes and enactments. 21. Any Finding of Fact, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Conclusion of Law shall be construed as a Conclusion of Law without derogation of any other Finding of Fact. Having made the above Findings of Fact, the Planning Commission makes the following CONCLUSIONS OF LAW 1. The Planning Commission has jurisdiction to receive all evidence and testimony in this matter, and to make these Findings of Fact, Conclusions of Law and Recommendation concerning all issues herein. 2. There being no objection to any member of the Planning Commission proceeding to hear and consider all matters herein, any and all objections arising or alleged to 4 arise out of the appearance of fairness doctrine or provisions related to conflict of interest are hereby deemed waived. 3. All procedural requirements pertaining to notice, scheduling and conducting the public hearing have been met and are satisfied. 4. All procedural requirements pertaining to amendment of Title 15 of the Yakima Municipal Code have been met and are satisfied. 5. The proposed legislation as set forth in Exhibit "A" attached hereto consists of a proposal to adopt legislation by ordinance relating solely to governmental procedures and contains no substantive standards respecting use or modification of the environment, and is therefore categorically exempt from threshold determination and EIS requirements under the State Environmental Policy Act (SEPA) pursuant to WAC 197-11-800(19). 6. The adoption of the proposed legislation as set forth in Exhibit "A" constitutes an exercise of the general police and regulatory powers of the city as authorized by, but not limited to: Washington State Constitution Article 11, Section 11; Chapter 35.22 RCW, and RCW 35.22.195; Charter of the City of Yakima, Article I; and the Yakima Municipal Code. 7. The exercise of the city's general police and regulatory power to adopt the proposed legislation is specifically authorized by and consistent with Initiative 502 as adopted and codified within the Revised Code of Washington and Chapter 314-55 WAC, including but not limited to WAC 314-55-020(11). 8. The adoption of the proposed legislation is not in conflict with, nor preempted by, the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, or the Controlled Substances Act, 21 U.S.C. § 801-971. 9. The adoption of the proposed legislation is not in conflict with, nor preempted by, Initiative 502 as adopted and codified within the Revised Code of Washington, and Chapter 314-55 WAC. 10. The adoption of the proposed legislation constitutes a land use control rationally and reasonably related to control documented secondary effects arising from unregulated marijuana dispensaries and collective gardens. The city is entitled to rely on facts, reports and studies of prepared by other jurisdictions when analyzing secondary effects associated with marijuana. See, e.g., City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). 5 11. Under the current application of federal law prohibiting the production, dispensing, possession and use of marijuana, and the provisions of state law decriminalizing production, possession and use of marijuana as authorized by Initiative 502 as adopted and codified in the Revised Code of Washington, no clear precedential decisions of any court with jurisdiction have been issued, nor federal legislation passed, addressing the conflict between applicable federal law and state law decriminalizing use, possession, production, processing and retailing of marijuana. In the absence of such clarification, the city is at risk of being found to have aided and/or abetted a violation of applicable federal law by adopting and implementing any regulatory scheme that could be construed to constitute an authorization of conduct in violation of federal law. The adoption of the proposed legislation constitutes an exercise of the city's general police powers to prohibit any such marijuana production, processing and retail use, sale and distribution in any zone of the city, thereby adopting local regulation not in conflict with either state or applicable federal law. In the event any court of competent jurisdiction issues a decision with precedential effect for courts of the State of Washington, or in the event subsequent legislation is passed, removing any conflict between federal and state law, the city has authority under its general police and regulatory powers to adopt subsequent legislation to impose and implement appropriate controls for the land use regulation of marijuana production, processing and retailing. 12.The Planning Commission concludes that the adoption of the proposed legislation attached hereto as Exhibit "A" will prohibit only the production, processing and retailing of and for marijuana within the City of Yakima, and will not prohibit the individual use, possession or consumption of marijuana authorized in accordance with, and subject to the provisions and restrictions of, Initiative 502 as adopted and codified in the Revised Code of Washington. 13.Any Conclusion of Law, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Finding of Fact shall be construed as a Finding of Fact without derogation of any other Conclusion of Law. Having made the above Findings of Fact and Conclusions of Law, the Planning Commission hereby renders its RECOMMENDATION TO CITY COUNCIL The Planning Commission of the City of Yakima, having received and considered all evidence and testimony presented at public hearing, and having received and reviewed 6 the record herein, hereby recommends that the City Council of the City of Yakima APPROVE the proposed legislation attached hereto as Exhibit "A." ADOPTED AND APPROVED this 15th day of January, 2014. By: /s/ Dave Fonfara Chairman Dave Fonfara Attorney General of Washington STATUTES—INITIATIVE AND REFERENDUM—ORDINANCES—COUNTIES— CITIES AND TOWNS—PREEMPTION—POLICE POWERS—Whether Statewide Initiative Establishing System For Licensing Marijuana Producers, Processors, And Retailers Preempts Local Ordinances 1. Initiative 502, which establishes a licensing and regulatory system for marijuana producers, processors, and retailers, does not preempt counties, cities, and towns from banning such businesses within their jurisdictions. 2. Local ordinances that do not expressly ban state -licensed marijuana licensees from operating within the jurisdiction but make such operation impractical are valid if they properly exercise the local jurisdiction's police power. January 16, 2014 The Honorable Sharon Foster Chair, Washington State Liquor Control Board 3000 Pacific Avenue SE Olympia, WA 98504-3076 Dear Chair Foster: Cite As: AGO 2014 No. 2 By letter previously acknowledged, you have requested our opinion on the following paraphrased questions: 1. Are local governments preempted by state law from banning the location of a Washington State Liquor Control Board licensed marijuana producer, processor, or retailer within their jurisdiction? 2. May a local government establish land use regulations (in excess of the Initiative 502 buffer and other Liquor Control Board requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction? BRIEF ANSWERS 1. No. Under Washington law, there is a strong presumption against finding that state law preempts local ordinances. Although Initiative 502 (1-502) establishes a licensing and regulatory system for marijuana producers, processors, and retailers in Washington State, it includes no clear indication that it was intended to preempt local authority to regulate such Attorney General of Washington Post Office Box 40100 Olympia, WA 98504-0100 (360) 753-6200 ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 2 AGO 2014 No. 2 businesses. We therefore conclude that I-502 left in place the normal powers of local governments to regulate within their jurisdictions. 2. Yes. Local governments have broad authority to regulate within their jurisdictions, and nothing in I-502 limits that authority with respect to licensed marijuana businesses. BACKGROUND I-502 was approved by Washington voters on November 6, 2012, became effective 30 days thereafter, and is codified in RCW 69.50. It decriminalized under state law the possession of limited amounts of useable marijuana) and marijuana -infused products by persons twenty-one years or older. It also decriminalized under state law the production, delivery, distribution, and sale of marijuana, so long as such activities are conducted in accordance with the initiative's provisions and implementing regulations. It amended the implied consent laws to specify that anyone operating a motor vehicle is deemed to have consented to testing for the active chemical in marijuana, and amended the driving under the influence laws to make it a criminal offense to operate a motor vehicle under the influence of certain levels of marijuana. I-502 also established a detailed licensing program for three categories of marijuana businesses: production, processing, and retail sales. The marijuana producer's license governs the production of marijuana for sale at wholesale to marijuana processors and other marijuana producers. RCW 69.50.325(1). The marijuana processor's license governs the processing, packaging, and labeling of useable marijuana and marijuana -infused products for sale at wholesale to marijuana retailers. RCW 69.50.325(2). The marijuana retailer's license governs the sale of useable marijuana and marijuana -infused products in retail stores. RCW 69.50.325(3). Applicants for producer, processor, and retail sales licenses must identify the location of the proposed business. RCW 69.50.325(1), (2), (3). This helps ensure compliance with the requirement that "no license may be issued authorizing a marijuana business within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older." RCW 69.50.331(8). Upon receipt of an application for a producer, processor, or retail sales license, the Liquor Control Board must give notice of the application to the appropriate local jurisdiction. RCW 69.50.331(7)(a) (requiring notice to the chief executive officer of the incorporated city or town if the application is for a license within an incorporated city or town, or the county legislative authority if the application is for a license outside the boundaries of incorporated 1 Useable marijuana means "dried marijuana flowers" and does not include marijuana -infused products. RCW 69.50.101(11). ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 3 AGO 2014 No. 2 cities or towns). The local jurisdiction may file written objections with respect to the applicant or the premises for which the new or renewed license is sought. RCW 69.50.331(7)(b). The local jurisdictions' written objections must include a statement of all facts upon which the objections are based, and may include a request for a hearing, which the Liquor Control Board may grant at its discretion. RCW 69.50.331(7)(c). The Board must give "substantial weight" to a local jurisdiction's objections based upon chronic illegal activity associated with the applicant's operation of the premises proposed to be licensed, the applicant's operation of any other licensed premises, or the conduct of the applicant's patrons inside or outside the licensed premises. RCW 69.50.331(9). Chronic illegal activity is defined as a pervasive pattern of activity that threatens the public health, safety, and welfare, or an unreasonably high number of citations for driving under the influence associated with the applicant's or licensee's operation of any licensed premises. RCW 69.50.331(9).2 In addition to the licensing provisions in statute, I-502 directed the Board to adopt rules establishing the procedures and criteria necessary to supplement the licensing and regulatory system. This includes determining the maximum number of retail outlets that may be licensed in each county, taking into consideration population distribution, security and safety issues, and the provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market. RCW 69.50.345(2). The Board has done so, capping the number of retail licenses in the least populated counties of Columbia County, Ferry County, and Wahkiakum County at one and the number in the most populated county of King County at 61, with a broad range in between. See WAC 314-55-081. The Board also adopted rules establishing various requirements mandated or authorized by I-502 for locating and operating marijuana businesses on licensed premises, including minimum residency requirements, age restrictions, and background checks for licensees and employees; signage and advertising limitations; requirements for insurance, recordkeeping, reporting, and taxes; and detailed operating plans for security, traceability, employee qualifications and training, and destruction of waste. See generally WAC 314-55. Additional requirements apply for each license category. Producers must describe plans for transporting products, growing operations, and testing procedures and protocols. WAC 314-55-020(9). Processors must describe plans for transporting products, processing operations, testing procedures and protocols, and packaging and labeling. WAC 314-55-020(9). Finally, retailers must also describe which products will be sold and how they will be displayed, and may only operate between 8 a.m. and 12 midnight. WAC 314-55-020(9), -147. The rules also make clear that receipt of a license from the Liquor Control Board does not entitle the licensee to locate or operate a marijuana processing, producing, or retail business in violation of local rules or without any necessary approval from local jurisdictions. WAC 314- 2 The provision for objections based upon chronic illegal activity is identical to one of the provisions for local jurisdictions to object to the granting or renewal of liquor licenses. RCW 66.24.010(12). ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 4 AGO 2014 No. 2 -55-020(11) provides as follows: "The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements." ANALYSIS Your question acknowledges that local governments have jurisdiction over land use issues like zoning and may exercise the option to issue business licenses. This authority comes from article XI, section 11 of the Washington Constitution, which provides that "[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." The limitation on this broad local authority requiring that such regulations not be "in conflict with general laws" means that state law can preempt local regulations and render them unconstitutional either by occupying the field of regulation, leaving no room for concurrent local jurisdiction, or by creating a conflict such that state and local laws cannot be harmonized. Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010). Local ordinances are entitled to a presumption of constitutionality. State v. Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009). Challengers to a local ordinance bear a heavy burden of proving it unconstitutional. Id. "Every presumption will be in favor of constitutionality." HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 477, 61 P.3d 1141 (2003) (internal quotation marks omitted). A. Field Preemption Field preemption arises when a state regulatory system occupies the entire field of regulation on a particular issue, leaving no room for local regulation. Lawson, 168 Wn.2d at 679. Field preemption may be expressly stated or may be implicit in the purposes or facts and circumstances of the state regulatory system. Id. I-502 does not express any indication that the state licensing and operating system preempts the field of marijuana regulation. Although I-502 was structured as a series of amendments to the controlled substances act, which does contain a preemption section, that section makes clear that state law "fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act." RCW 69.50.608 (emphasis added).3 It also allows "[c]ities, towns, and counties or other municipalities [to] enact only those laws and 3 RCW 69.50.608 provides: "The state of Washington fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to controlled substances that are consistent with this chapter. Such local ordinances shall have the same penalties as provided for by state law. 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." The Washington Supreme Court has interpreted this provision as giving local jurisdictions concurrent authority to criminalize drug- related activity. City of Tacoma v. Luvene, 118 Wn.2d 826, 835, 827 P.2d 1374 (1992). ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 5 AGO 2014 No. 2 ordinances relating to controlled substances that are consistent with this chapter." RCW 69.50.608. Nothing in this language expresses an intent to preempt the entire field of regulating businesses licensed under I-502. With respect to implied field preemption, the "legislative intent" of an initiative is derived from the collective intent of the people and can be ascertained by material in the official voter's pamphlet. Dep't of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973); see also Roe v. TeleTech Customer Care Mgmt., LLC, 171 Wn.2d 736, 752-53, 257 P.3d 586 (2011). Nothing in the official voter's pamphlet evidences a collective intent for the state regulatory system to preempt the entire field of marijuana business licensing or operation. Voters' Pamphlet 23-30 (2012). Moreover, both your letter and the Liquor Control Board's rules recognize the authority of local jurisdictions to impose regulations on state licensees. These facts, in addition to the absence of express intent suggesting otherwise, make clear that I-502 and its implementing regulations do not occupy the entire field of marijuana business regulation. B. Conflict Preemption Conflict preemption arises "when an ordinance permits what state law forbids or forbids what state law permits." Lawson, 168 Wn.2d at 682. An ordinance is constitutionally invalid if it directly and irreconcilably conflicts with the statute such that the two cannot be harmonized. Id.; Weden v. San Juan County, 135 Wn.2d 678, 693, 958 P.2d 273 (1998). Because "[e]very presumption will be in favor of constitutionality," courts make every effort to reconcile state and local law if possible. HJS Dev., 148 Wn.2d at 477 (internal quotation marks omitted). We adopt this same deference to local jurisdictions. An ordinance banning a particular activity directly and irreconcilably conflicts with state law when state law specifically entitles one to engage in that same activity in circumstances outlawed by the local ordinance. For example, in Entertainment Industry Coalition v. Tacoma - Pierce County Health Department, 153 Wn.2d 657, 661-63, 105 P.3d 985 (2005), the state law in effect at the time banned smoking in public places except in designated smoking areas, and specifically authorized owners of certain businesses to designate smoking areas. The state law provided, in relevant part: "A smoking area may be designated in a public place by the owner . . .." Former RCW 70.160.040(1) (2004), repealed by Laws of 2006, ch. 2, § 7(2) (Initiative Measure 901). The Tacoma -Pierce County Health Department ordinance at issue banned smoking in all public places. The Washington Supreme Court struck down the ordinance as directly and irreconcilably conflicting with state law because it prohibited what the state law authorized: the business owner's choice whether to authorize a smoking area. Similarly, in Parkland Light & Water Co. v. Tacoma -Pierce County Board of Health, 151 Wn.2d 428, 90 P.3d 37 (2004), the Washington Supreme Court invalidated a Tacoma -Pierce County Health Department ordinance requiring fluoridated water. The state law at issue authorized the water districts to decide whether to fluoridate, saying: "A water district by a ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 6 AGO 2014 No. 2 majority vote of its board of commissioners may fluoridate the water supply system of the water district." RCW 57.08.012. The Court interpreted this provision as giving water districts the ability to regulate the content and supply of their water systems. Parkland Light & Water Co., 151 Wn.2d at 433. The local health department's attempt to require fluoridation conflicted with the state law expressly giving that choice to the water districts. As they could not be reconciled, the Court struck down the ordinance as unconstitutional under conflict preemption analysis. By contrast, Washington courts have consistently upheld local ordinances banning an activity when state law regulates the activity but does not grant an unfettered right or entitlement to engage in that activity. In Weden v. San Juan County, the Court upheld the constitutionality of the County's prohibition on motorized personal watercraft in all marine waters and one lake in San Juan County. The state laws at issue created registration and safety requirements for vessels and prohibited operation of unregistered vessels. The Court rejected the argument that state regulation of vessels constituted permission to operate vessels anywhere in the state, saying, "[n]owhere in the language of the statute can it be suggested that the statute creates an unabridged right to operate [personal watercraft] in all waters throughout the state." Weden, 135 Wn.2d at 695. The Court further explained that "[r]egistration of a vessel is nothing more than a precondition to operating a boat." Id. "No unconditional right is granted by obtaining such registration." Id. Recognizing that statutes often impose preconditions without granting unrestricted permission to participate in an activity, the Court also noted the following examples: "[p]urchasing a hunting license is a precondition to hunting, but the license certainly does not allow hunting of endangered species or hunting inside the Seattle city limits," and "[r]eaching the age of 16 is a precondition to driving a car, but reaching 16 does not create an unrestricted right to drive a car however and wherever one desires." Id. at 695 (internal citation omitted). Relevant here, the dissent in Weden argued: "Where a state statute licenses a particular activity, counties may enact reasonable regulations of the licensed activity within their borders but they may not prohibit same outright[,]" and that an ordinance banning the activity "renders the state permit a license to do nothing at all." Weden, 135 Wn.2d at 720, 722 (Sanders, J., dissenting). The majority rejected this approach, characterizing the state law as creating not an unabridged right to operate personal watercraft in the state, but rather a registration requirement that amounted only to a precondition to operating a boat in the state. In State ex rel. Schillberg v. Everett District Justice Court, 92 Wn.2d 106, 594 P.2d 448 (1979), the Washington Supreme Court similarly upheld a local ban on internal combustion motors on certain lakes. The Court explained: "A statute will not be construed as taking away the power of a municipality to legislate unless this intent is clearly and expressly stated." Id. at 108. The Court found no conflict because nothing in the state laws requiring safe operation of vessels either expressly or impliedly provided that vessels would be allowed on all waters of the ' - state. ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 7 AGO 2014 No. 2 The Washington Supreme Court also rejected a conflict preemption challenge to the City of Pasco's ordinance prohibiting placement of recreational vehicles within mobile home parks. Lawson, 168 Wn.2d at 683-84. Although state law regulated rights and duties arising from mobile home tenancies and recognized that such tenancies may include recreational vehicles, the Court reasoned "[t]he statute does not forbid recreational vehicles from being placed in the lots, nor does it create a right enabling their placement." Id. at 683. The state law simply regulated recreational vehicle tenancies, where such tenancies exist, but did not prevent municipalities from deciding whether or not to allow them. Id. at 684. Accordingly, the question whether "an ordinance ... forbids what state law permits" is more complex than it initially appears. Lawson, 168 Wn.2d at 682. The question is not whether state law permits an activity in some places or in some general sense; even "[t]he fact that an activity may be licensed under state law does not lead to the conclusion that it must be permitted under local law." Rabon v. City of Seattle, 135 Wn.2d 278, 292, 957 P.2d 621 (1998) (finding no preemption where state law authorized licensing of "dangerous dogs" while city ordinance forbade ownership of "vicious animals"). Rather, a challenger must meet the heavy burden of proving that state law creates an entitlement to engage in an activity in circumstances outlawed by the local ordinance. For example, the state laws authorizing business owners to designate smoking areas and water districts to decide whether to fluoridate their water systems amounted to statewide entitlements that local jurisdictions could not take away. But the state laws requiring that vessels be registered and operated safely and regulating recreational vehicles in mobile home tenancies simply contemplated that those activities would occur in some places and established preconditions; they did not, however, override the local jurisdictions' decisions to prohibit such activities. Here, I-502 authorizes the Liquor Control Board to issue licenses for marijuana producers, processors, and retailers. Whether these licenses amount to an entitlement to engage in such businesses regardless of local law or constitute regulatory preconditions to engaging in such businesses is the key question, and requires a close examination of the statutory language. RCW 69.50.325 provides, in relevant part: (1) There shall be a marijuana producer's license to produce marijuana for sale at wholesale to marijuana processors and other marijuana producers, regulated by the state liquor control board and subject to annual renewal... . (2) There shall be a marijuana processor's license to process, package, and label useable marijuana and marijuana -infused products for sale at wholesale to marijuana retailers, regulated by the state liquor control board and subject to annual renewal... . ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 8 AGO 2014 No. 2 (3) There shall be a marijuana retailer's license to sell useable marijuana and marijuana -infused products at retail in retail outlets, regulated by the state liquor control board and subject to annual renewal... . RCW 69.50.325(1)-(3). Each of these subsections also includes language providing that activities related to such licenses are not criminal or civil offenses under Washington state law, provided they comply with I-502 and the Board's rules, and that the licenses shall be issued in the name of the applicant and shall specify the location at which the applicant intends to operate. They also establish fees for issuance and renewal and clarify that a separate license is required for each location at which the applicant intends to operate. RCW 69.50.325. While these provisions clearly authorize the Board to issue licenses for marijuana producers, processors, and retail sales, they lack the definitive sort of language that would be necessary to meet the heavy burden of showing state preemption. They simply state that there "shall be a ... license" and that engaging in such activities with a license "shall not be a criminal or civil offense under Washington state law." RCW 69.50.325(1). Decriminalizing such activities under state law and imposing restrictions on licensees does not amount to entitling one to engage in such businesses regardless of local law. Given that "every presumption" is in favor of upholding local ordinances (HJS Dev., Inc., 148 Wn.2d at 477), we find no irreconcilable conflict between I -502's licensing system and the ability of local governments to prohibit licensees from operating in their jurisdictions. We have considered and rejected a number of counterarguments in reaching this conclusion. First, one could argue that the statute, in allowing Board approval of licenses at specific locations (RCW 69.50.325(1), (2), (3)), assumes that the Board can approve a license at any location in any jurisdiction. This argument proves far too much, however, for it suggests that a license from the Board could override any local zoning ordinance, even one unrelated to I-502. For example, I-502 plainly would not authorize a licensed marijuana retailer to locate in an area where a local jurisdiction's zoning allows no retail stores of any kind. The Board's own rules confirm this: "The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements." WAC 314-55-020(11). Second, one could argue that a local jurisdiction's prohibition on marijuana licensees conflicts with the provision in I-502 authorizing the Board to establish a maximum number of licensed retail outlets in each county. RCW 69.50.345(2); see also RCW 69.50.354. But there is no irreconcilable conflict here, because the Board is allowed to set only a maximum, and nothing in I-502 mandates a minimum number of licensees in any jurisdiction. The drafters of I-502 certainly could have provided for a minimum number of licensees per jurisdiction, which would have been a stronger indicator of preemptive intent, but they did not. ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 9 AGO 2014 No. 2 Third, one could argue that because local jurisdictions are allowed to object to specific license applications and the Board is allowed to override those objections and grant the license anyway (RCW 69.50.331(7), (9)); local jurisdictions cannot have the power to ban licensees altogether. But such a ban can be harmonized with the objection process; while some jurisdictions might want to ban I-502 licensees altogether, others might want to allow them but still object to specific applicants or locations. Indeed, this is the system established under the state liquor statutes, which I-502 copied in many ways. Compare RCW 69.50.331 with RCW 66.24.010 (governing the issuance of marijuana licenses and liquor licenses, respectively, in parallel terms and including provisions for local government input regarding licensure). The state laws governing liquor allow local governments to object to specific applications (RCW 66.24.010), while also expressly authorizing local areas to prohibit the sale of liquor altogether. See generally RCW 66.40. That the liquor opt out statute coexists with the liquor licensing notice and comment process undermines any argument that a local marijuana ban irreconcilably conflicts with the marijuana licensing notice and comment opportunity. Fourth, RCW 66.40 expressly allows local governments to ban the sale of liquor. Some may argue that by omitting such a provision, I -502's drafters implied an intent to bar local governments from banning the sale of marijuana. Intent to preempt, however, must be "clearly and expressly stated." State ex rel. Schillberg, 92 Wn.2d at 108. Moreover, it is important to remember that cities, towns, and counties derive their police power from article XI, section 11 of the Washington Constitution, not from statute. Thus, the relevant question is not whether the initiative provided local jurisdictions with such authority, but whether it removed local jurisdictions' preexisting authority. Finally, in reaching this conclusion, we are mindful that if a large number of jurisdictions were to ban licensees, it could interfere with the measure's intent to supplant the illegal marijuana market. But this potential consequence is insufficient to overcome the lack of clear preemptive language or intent in the initiative itself. The drafters of the initiative certainly could have used clear language preempting local bans. They did not. The legislature, or the people by initiative, can address this potential issue if it actually comes to pass. With respect to your second question, about whether local jurisdictions can impose regulations making it "impractical" for I-502 licensees to locate and operate within their boundaries, the answer depends on whether such regulations constitute a valid exercise of the police power or otherwise conflict with state law. As a general matter, as discussed above, the Washington Constitution provides broad authority for local jurisdictions to regulate within their boundaries and impose land use and business licensing requirements. Ordinances must be a reasonable exercise of a jurisdiction's police power in order to pass muster under article XI, section 11 of the state constitution. Weden, 135 Wn.2d at 700. A law is a reasonable regulation if it promotes public safety, health, or welfare and bears a reasonable and substantial relation to accomplishing the purpose pursued. Id. (applying this test to the personal watercraft ordinance); see also Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 26, 586 P.2d 860 (1978) (applying this ATTORNEY GENERAL OF WASHINGTON The Honorable Sharon Foster 10 AGO 2014 No. 2 test to a zoning ordinance). Assuming local ordinances satisfy this test, and that no other constitutional or statutory basis for a challenge is presented on particular facts, we see no impediment to jurisdictions imposing additional regulatory requirements, although whether a particular ordinance satisfies this standard would of course depend on the specific facts in each case. wros We trust that the foregoing will be useful to you. \vast,;AntiI„4i/,lr4 ROBERT W. FERGUSON Attorney General JESSICA FOGEL Assistant Attorney General (360) 753-6287 o SII Nlli^ti lop TEXT AMENDMENT — MARIJUANA — YMC TITLE 15 URBAN AREA ZONING ORDINANCE (TXT#006-13) Yakima City Council Open Record Public Hearing January 21, 2014 Applicant: File Numbers: Site Address: Staff Contact: EXHIBIT LIST City of Yakima Planning Division TXT#006-13 Citywide Mark Kunkler, Senior Assistant City Attorney Steve Osguthorpe, AICP, Community Development Director Table of Contents Memorandum to Yakima Planning Commission from City Legal Dept (dated 12/18/2013) (a) (Proposed Draft) Findings of Fact, Conclusions of Law and Recommendation to City Council. (b) (Proposed) Ordinance amending YMC 15.01.035 regarding marijuana production, processing and retailing. (c) Initiative Measure No. 502. (d) Chapter 314-55 WAC, regulations adopted by the Washington State Liquor Control Board implementing Initiative 502. City of Yakima Ordinance No. 2013-148, enacting moratorium. Resolution No. 2013-142, adopting Findings of Fact in support of moratorium enacted per Ordinance No. 2013-148. Memorandum to City Council dated October 2, 2013 regarding Initiative 502. Memorandum dated August 29, 2013 from U.S. Department of Justice, Office of the Deputy Attorney General, regarding marijuana enforcement in states of Colorado and Washington. Letter from City Attorney dated December 10, 2013 to Washington State Attorney General's Office. (j) "White Paper on Marijuana Dispensaries," submitted by California Police Chiefs Association Task Force on Marijuana Dispensaries (April 22, 2009). (k) Materials dated November 4, 2013 in support of medical marijuana facilities, submitted to City Council by MCS of Central Washington. (1) Memorandum from Senior Assistant City Attorney Mark Kunkler, dated January 10, 2014. This memo includes a copy of a December 17, 2013 Tri -City Herald newspaper article containing an interview on this subject with Governor Jay Inslee. Copies of correspondence received by the Planning Commission at the public hearing of January 8, 2014. (e) (f) (g) (h) (i) (m) CITY OF YAKIMA LEGAL DEPARTMENT 200 South Third Stn et,Yakima, Washington 918901 (509)575-6030 Fax (509)575-6160 TO: MEMORANDUM December 18, 2013 City of Yakima Planning Commission Steve Osguthorpe, AICP, Director, Community Development Department FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Marijuana — Public Hearing — Record Documents A. Introduction. On January 8, 2014, the Planning Commission is scheduled to conduct a public hearing to consider a proposed amendment to the Yakima Municipal Code. The proposed amendment would prohibit the production, processing and retailing of marijuana within the City of Yakima. B. Procedural Background. On October 8, 2013, the City Council adopted Ordinance No. 2013-048 imposing a six- month moratorium on the acceptance of applications for, and issuance of licenses and permits for, marijuana production, processing and retailing within the City of Yakima. At a public hearing on November 5, 2013 concerning the adoption and scope of the moratorium, the City Council approved the moratorium as originally enacted and adopted findings of fact supporting such enactment (Resolution No. 2013-142). Under the terms of the moratorium ordinance, the moratorium will expire on midnight, May 6, 2014 or upon adoption of municipal code provisions pertaining to the regulation of marijuana production, processing and retailing within the City of Yakima. The City Council vote to adopt the moratorium on October 8, 2013 was approved by a 4 — 3 vote. Those voting in favor expressed a preference to develop zoning and land use regulations to allow marijuana production, processing and/or retailing within the city. Those voting against expressed a preference that the City of Yakima prohibit the production, processing and retailing of marijuana within the city. Memorandum to Honorable Mayor and Members of the City Council December 24, 2013 Page 2 On or about November 5, 2013, following a public hearing on the moratorium, the City Council took another vote on the issue. At this meeting the vote was 4 — 3 to develop code amendments to ban marijuana production, processing and retailing within the City of Yakima. C. Proposed Amendment to Yakima Municipal Code. In response to the direction of the City Council, staff has prepared a proposed ordinance. The proposed ordinance amends YMC 15.01.035 to read as follows (shown in legislative format): 15.01.035 Illegal Uses Prohibited. A. General. No use that is illegal under local, state or federal law shall be allowed in any zone within the city. B. Specific Application — Medical Marijuana Dispensaries and Collective Gardens. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating dispensaries of cannabis and/or collective gardens for the production, distribution and dispensing of cannabis for medical uses, all as further defined and set forth in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington, such uses are not allowed in any zone within the city. For purposes of this section, "dispensary" means any person, entity, site, location, facility, business, cooperative, collective, whether for profit or not for profit, that distributes, sells, dispenses, transmits, packages, measures, labels, selects, processes, delivers, exchanges or gives away cannabis for medicinal or other purposes. C. Production, Processing and Retailing of Marijuana Prohibited. Production, processing, retail sale and retail outlets for the sale of marijuana and marijuana -infused products, all as defined in Initiative Measure No. 502, as codified in the Revised Code of Washington, and implementing regulations in Chapter 314-55 of the Washington Administrative Code, as now existing or hereafter amended, are each prohibited and not allowed in any zone within the city. The preexisting portion of the code language was added in 2012 to address medical marijuana dispensaries and collective gardens. The effect of the code provisions was to prohibit medical marijuana dispensaries and collective gardens within the City of Yakima. The proposed amendment keeps the prior language but adds a specific subsection prohibiting marijuana production, processing and retailing within the City of Yakima. Memorandum to Honorable Mayor and Members of the City Council December 24, 2013 Page 3 D. Reasons for Amendment. The rationale supporting the proposed amendment is stated within the preamble to the proposed ordinance, the proposed findings of fact and conclusions of law in support of the proposed ordinance, and in the briefs and letters included within the record. The rationale can be summarized as follows: (a) Marijuana remains illegal under federal law. The memorandum issued by the U.S. Attorney General's office on August 29, 2013 did not change the law, but only announced the decision of the U.S. Attorney's Office to exercise prosecutorial discretion with regard to enforcement of the federal law within the States of Colorado and Washington. The U.S. Attorney" Office reserved the power to prosecute in any instance where it felt the efforts of the states fell short of "robust regulation," where a threat exists for the illegal distribution to minors, or where a threat of interstate distribution of marijuana was encountered. (b) The City of Yakima has been granted constitutional authority to enact legislation regulating land uses within its jurisdiction so long as such local legislation is consistent with the general laws (Constitution Article 11, Section 11). (c) Nothing in Initiative Measure No. 502 ("Initiative 502") decriminalizing possession, use and delivery of specified amounts of marijuana and authorizing the Washington State Liquor Control Board (WSLCB) to develop and implement regulations for the licensing of marijuana production, processing and retailing expressly or impliedly preempts the City of Yakima from exercising its land use regulatory authority, including the ban of marijuana production, processing and retailing within city limits. (d) The prohibition of marijuana production, processing and retailing within the City of Yakima does not contravene the purposes of Initiative 502, and does not alter the provisions of Initiative 502 that authorize the WSLCB to designate the maximum number of marijuana retail outlets in each county. If a local ban is enacted by the City of Yakima, the number of retail outlets allocated by the WSLCB to the City of Yakima become "at large" retail locations. At large retail outlets can be located in the unincorporated county or any other city not allocated a number of retail outlets, all in accordance with the provisions of Initiative 502. (e) While Initiative 502 contains restrictions prohibiting location of marijuana production, processing and retail outlets within 1,000 feet of public schools, Memorandum to Honorable Mayor and Members of the City Council December 24, 2013 Page 4 public parks, public libraries and other protected uses, it does not contain restrictions prohibiting location of marijuana licensed facilities within residential districts, community recreational trails, or private parks, facilities and areas that serve the public. (f) Studies reporting secondary effects associated with analogous medical marijuana dispensaries in other cities and counties include reports of murders, robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Cal.4t 729, 756, 300 P.3d 494 (2013). (g) Initiative 502 does not require that any city allow the location of any marijuana production, processing or retailing facility within its jurisdiction. Regulations adopted by the WSLCB implementing Initiative 502 specifically state that any license issued by the WSLCB does not constitute approval of the location of the licensed facility within any city. Such uses are subject to the land use regulations of the city. E. Record Documents. The following documents are presented as part of the record in this matter: (a) (Proposed Draft) Findings of Fact, Conclusions of Law and Recommendation to City Council. These are subject to the Planning Commission's review and revision. (b) (Proposed) Ordinance amending YMC 15.01.035 regarding marijuana production, processing and retailing. (c) Initiative Measure No. 502. (d) Chapter 314-55 WAC, regulations adopted by the Washington State Liquor Control Board implementing Initiative 502. (e) City of Yakima Ordinance No. 2013-148, enacting moratorium. (f) Resolution No. 2013-142, adopting Findings of Fact in support of moratorium enacted per Ordinance No. 2013-148. Memorandum to Honorable Mayor and Members of the City Council December 24, 2013 Page 5 (g) Memorandum to City Council dated October 2, 2013 regarding Initiative 502. (h) Memorandum dated August 29, 2013 from U.S. Department of Justice, Office of the Deputy Attorney General, regarding marijuana enforcement in states of Colorado and Washington. (i) Letter from City Attorney dated December 10, 2013 to Washington State Attorney General's Office. (j) "White Paper on Marijuana Dispensaries," submitted by California Police Chiefs Association Task Force on Marijuana Dispensaries (April 22, 2009). (k) Materials dated November 4, 2013 in support of medical marijuana facilities, submitted to City Council by MCS of Central Washington. (Omitting copy of City of Spokane Ordinance No. C-35037 creating new and amended municipal code provisions regulating medical marijuana collective gardens and land uses for production, processing and retailing of recreational marijuana. Reference is made to Spokane Municipal Code Chapters 10.49 and 10.50, which are available for view on the City of Spokane's web site.) (A) (PROPOSED DRAFT) FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION TO CITY COUNCIL. BEFORE THE PLANNING COMMISSION OF THE CITY OF YAKIMA In the matter of: Proposed Regulation of Marijuana Production, Processing and Retail Uses in City of Yakima Public Hearing: January 8, 2014 Special Meeting: January 15, 2014 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION THIS MATTER, having come before the Planning Commission of the City of Yakima (hereafter "Planning Commission") upon public hearing on January 8, 2014, and the Planning Commission having considered the record herein and all evidence and testimony presented, hereby makes the following FINDINGS OF FACT 1. A public hearing was held before the Planning Commission on January 8, 2014 pursuant to notice duly published, all in accordance with applicable procedures of the Yakima Municipal Code and state law, with a special meeting conducted January 15, 2014. 2. No objection was made to any member of the Planning Commission hearing and deciding all issues in this matter. 3. On November 6, 2012, the voters of the State of Washington approved Initiative Measure No. 502, ("Initiative 502"), now codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which provisions (a) decriminalized possession and use of certain amounts of marijuana and marijuana paraphernalia; (b) amended state laws pertaining to driving under the influence of intoxicants to include driving under the influence of marijuana; and (c) authorized promulgation of regulations and issuance of licenses by the Washington State Liquor Control Board ("WSLCB") for the production, processing and retailing of marijuana. 4. Congress has previously enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Under the Controlled Substances Act (also "CSA"), Congress established five "schedules" of controlled substances. Controlled 1 substances are placed in specific schedules based upon their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b). 5. Marijuana is currently listed as a "Schedule 1" controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a). 6. Under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. 7. The United States Supreme Court has held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule I controlled substance pursuant to the Controlled Substances Act, and that, under the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over any conflicting state law. 8. WAC 314-55-020(11) promulgated by the WSCLB under the authority of Initiative 502 describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. 9. Pursuant to Article 11, § 11 of the state Constitution, the general police powers granted to cities empower and authorize the City of Yakima to adopt land use controls to provide for the regulation of land uses within the city and to provide that such uses shall be consistent with applicable law. 10. One of the primary purposes of the Growth Management Act is to empower cities planning under the Act to develop and adopt land use controls reflecting the local 2 needs of the community. As provided in RCW 36.70A.010: "It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning." 11. The Planning Commission finds and determines that Initiative 502 does not preempt the City of Yakima from exercising and administering its constitutional and statutory land use regulatory authority to either allow and regulate land uses within the city limits, or to prohibit and ban such uses. 12. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retailing as defined by Initiative 502 and regulations promulgated thereunder is consistent with federal law and not in conflict therewith. 13. The Planning Commission finds and determines that prohibiting within the City of Yakima the production, processing and retailing of marijuana, as set forth in Initiative 502 and its implementing regulations, will maintain adequate access in areas in the vicinity of the city for marijuana production, processing and retailing for residents within the City of Yakima, and is consistent with the provisions of Initiative 502 and its implementing regulations. 14. The Planning Commission finds and determines that documented secondary effects associated with analogous medical marijuana dispensaries in other cities and counties include murders, robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 756, 300 P.3d 494 (2013). 15. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retail uses within the City of Yakima is the only effective means to protect residential districts, recreational facilities, families and children within the City of Yakima. 16. The Planning Commission finds and determines that Section 15.01.035 of the Yakima Municipal Code should be amended to prohibit marijuana production, processing and retailing, as defined in Initiative 502 and its implementing regulations, within the City of Yakima. 17. The Planning Commission finds and determines that the prohibition of marijuana production, processing and retailing is subject to the authority and general police 3 power of the city to develop specific and appropriate land use controls regarding such uses, and the City Council reserves its powers and authority to appropriately amend, modify and revise such prohibition to implement such land use controls in accordance with applicable law. 18. The Planning Commission finds and determines that such amendments authorized herein are not intended to regulate the individual use of marijuana as authorized by Initiative 502. 19. The Planning Commission finds and determines that Title 15 of the Yakima Municipal Code should be amended as set forth in Exhibit "A" attached hereto and incorporated herein by this reference, to add a new subsection to YMC 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed in any zone within the city, and that such amendment specifically applies to prohibit, within the City of Yakima, the production, processing and retail sale and distribution of marijuana, all as specifically defined and described in Initiative Measure No. 502 and Chapter 314-55 of the Washington Administrative Code (WAC), as now existing or hereafter amended. 20. The Planning Commission finds and determines that the proposed amendment as set forth in Exhibit "A" does not regulate, and is not intended to regulate, individual possession, consumption and use of marijuana as authorized pursuant to Initiative Measure No. 502, codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which possession, consumption and use shall be subject to the provisions of such state statutes and enactments. 21. Any Finding of Fact, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Conclusion of Law shall be construed as a Conclusion of Law without derogation of any other Finding of Fact. Having made the above Findings of Fact, the Planning Commission makes the following CONCLUSIONS OF LAW 1. The Planning Commission has jurisdiction to receive all evidence and testimony in this matter, and to make these Findings of Fact, Conclusions of Law and Recommendation concerning all issues herein. 2. There being no objection to any member of the Planning Commission proceeding to hear and consider all matters herein, any and all objections arising or alleged to 4 arise out of the appearance of fairness doctrine or provisions related to conflict of interest are hereby deemed waived. 3. All procedural requirements pertaining to notice, scheduling and conducting the public hearing have been met and are satisfied. 4. All procedural requirements pertaining to amendment of Title 15 of the Yakima Municipal Code have been met and are satisfied. 5. The proposed legislation as set forth in Exhibit "A" attached hereto consists of a proposal to adopt legislation by ordinance relating solely to governmental procedures and contains no substantive standards respecting use or modification of the environment, and is therefore categorically exempt from threshold determination and EIS requirements under the State Environmental Policy Act (SEPA) pursuant to WAC 197-11-800(19). 6. The adoption of the proposed legislation as set forth in Exhibit "A" constitutes an exercise of the general police and regulatory powers of the city as authorized by, but not limited to: Washington State Constitution Article 11, Section 11; Chapter 35.22 RCW, and RCW 35.22.195; Charter of the City of Yakima, Article I; and the Yakima Municipal Code. 7. The exercise of the city's general police and regulatory power to adopt the proposed legislation is specifically authorized by and consistent with Initiative 502 as adopted and codified within the Revised Code of Washington and Chapter 314-55 WAC, including but not limited to WAC 314-55-020(11). 8. The adoption of the proposed legislation is not in conflict with, nor preempted by, the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, or the Controlled Substances Act, 21 U.S.C. § 801-971. 9. The adoption of the proposed legislation is not in conflict with, nor preempted by, Initiative 502 as adopted and codified within the Revised Code of Washington, and Chapter 314-55 WAC. 10.The adoption of the proposed legislation constitutes a land use control rationally and reasonably related to control documented secondary effects arising from unregulated marijuana dispensaries and collective gardens. The city is entitled to rely on facts, reports and studies of prepared by other jurisdictions when analyzing secondary effects associated with marijuana. See, e.g., City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986). 5 11. Under the current application of federal law prohibiting the production, dispensing, possession and use of marijuana, and the provisions of state law decriminalizing production, possession and use of marijuana as authorized by Initiative 502 as adopted and codified in the Revised Code of Washington, no clear precedential decisions of any court with jurisdiction have been issued, nor federal legislation passed, addressing the conflict between applicable federal law and state law decriminalizing use, possession, production, processing and retailing of marijuana. In the absence of such clarification, the city is at risk of being found to have aided and/or abetted a violation of applicable federal law by adopting and implementing any regulatory scheme that could be construed to constitute an authorization of conduct in violation of federal law. The adoption of the proposed legislation constitutes an exercise of the city's general police powers to prohibit any such marijuana production, processing and retail use, sale and distribution in any zone of the city, thereby adopting local regulation not in conflict with either state or applicable federal law. In the event any court of competent jurisdiction issues a decision with precedential effect for courts of the State of Washington, or in the event subsequent legislation is passed, removing any conflict between federal and state law, the city has authority under its general police and regulatory powers to adopt subsequent legislation to impose and implement appropriate controls for the land use regulation of marijuana production, processing and retailing. 12.The Planning Commission concludes that the adoption of the proposed legislation attached hereto as Exhibit "A" will prohibit only the production, processing and retailing of and for marijuana within the City of Yakima, and will not prohibit the individual use, possession or consumption of marijuana authorized in accordance with, and subject to the provisions and restrictions of, Initiative 502 as adopted and codified in the Revised Code of Washington. 13.Any Conclusion of Law, or portion thereof, hereafter determined by a court of competent jurisdiction to be a Finding of Fact shall be construed as a Finding of Fact without derogation of any other Conclusion of Law. Having made the above Findings of Fact and Conclusions of Law, the Planning Commission hereby renders its RECOMMENDATION TO CITY COUNCIL The Planning Commission of the City of Yakima, having received and considered all evidence and testimony presented at public hearing, and having received and reviewed 6 the record herein, hereby recommends that the City Council of the City of Yakima APPROVE the proposed legislation attached hereto as Exhibit "A." ADOPTED AND APPROVED this 15th day of January, 2014. By: Dave Fonfara, Chair (B) (PROPOSED) ORDINANCE AMENDING YMC 15.01.035 REGARDING MARIJUANA PRODUCTION, PROCESSING AND RETAILING. AN ORDINANCE ORDINANCE NO. 2014 - amending Section 15.01.035 of the Yakima Municipal Code prohibiting production, processing and/or retail outlets and sales of marijuana in all zones of the city; and terminating moratorium implemented pursuant to Ordinance No. 2013-048. WHEREAS, on November 6, 2012, the voters of the State of Washington approved Initiative Measure No. 502 ("Initiative 502"), now codified within Chapters 69.50, 46.04, 46.20, 46.21 and 46.61 RCW, which provisions (a) decriminalized possession and use of certain amounts of marijuana and marijuana paraphernalia; (b) amended state laws pertaining to driving under the influence of intoxicants to include driving under the influence of marijuana; and (c) authorized promulgation of regulations and issuance of licenses by the Washington State Liquor Control Board ("WSLCB") for the production, processing and retailing of marijuana; and WHEREAS, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Under the Controlled Substances Act (also "CSA"), Congress established five "schedules" of controlled substances. Controlled substances are placed in specific schedules based upon their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b); and WHEREAS, marijuana is currently listed as a "Schedule 1" controlled substance, 21 U.S.C. § 812(c), Schedule 1(c)(10). For a substance to be designated a Schedule 1 controlled substance, it must be found: (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a); and WHEREAS, under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful; and WHEREAS, the United States Supreme Court has held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule I controlled substance pursuant to the Controlled Substances Act, and that, under the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over any conflicting state law; and 1 WHEREAS, WAC 314-55-020(11) promulgated by the WSCLB under the authority of Initiative 502 describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements; and WHEREAS, pursuant to Article 11, § 11 of the state Constitution, the general police powers granted to cities empower and authorize the City of Yakima to adopt land use controls to provide for the regulation of land uses within the city and to provide that such uses shall be consistent with applicable law; and WHEREAS, one of the primary purposes of the Growth Management Act is to empower cities planning under the Act to develop and adopt land use controls reflecting the local needs of the community. As provided in RCW 36.70A.010: "It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning;" and WHEREAS, the City Council finds and determines that Initiative 502 does not preempt the City of Yakima from exercising and administering its constitutional and statutory land use regulatory authority to either allow and regulate land uses within the city limits, or to prohibit and ban such uses; and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retailing as defined by Initiative 502 and regulations promulgated thereunder is consistent with federal law and not in conflict therewith; and WHEREAS, the City Council finds and determines that prohibiting within the City of Yakima the production, processing and retailing of marijuana, as set forth in Initiative 502 and its implementing regulations, will maintain adequate access in areas in the vicinity of the city for marijuana production, processing and retailing for residents within the City of Yakima, and is consistent with the provisions of Initiative 502 and its implementing regulations; and WHEREAS, the City Council finds and determines that documented secondary effects associated with analogous medical marijuana dispensaries in other cities and counties include murders, robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, odors, health hazards such as proliferation of molds; See, "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"); City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4t" 729, 756, 300 P.3d 494 (2013); and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retail uses within the City of Yakima is the only 2 effective means to protect residential districts, recreational facilities, families and children within the City of Yakima; and WHEREAS, the City Council of the City of Yakima finds and determines that Section 15.01.035 of the Yakima Municipal Code should be amended to prohibit marijuana production, processing and retailing, as defined in Initiative 502 and its implementing regulations, within the City of Yakima; and WHEREAS, the City Council finds and determines that the prohibition of marijuana production, processing and retailing is subject to the authority and general police power of the city to develop specific and appropriate land use controls regarding such uses, and the City Council reserves its powers and authority to appropriately amend, modify and revise such prohibition to implement such land use controls in accordance with applicable law; and WHEREAS, the City Council finds and determines that such amendments authorized herein are not intended to regulate the individual use of marijuana as authorized by Initiative 502 ; and WHEREAS, the Planning Commission has held and conducted an open record public hearing on January 8, 2014, with special meeting on January 15, 2014, all pursuant to required notice and applicable procedures of the City of Yakima, and has adopted findings of fact and conclusions of law in support of its recommendation for adoption of the above-described amendments, which Findings of Fact and Conclusions of Law are of record and incorporated herein by this reference; and WHEREAS, the City Council has held and conducted a public hearing on January 21, 2014 and considered the recommendation of the Planning Commission, the record herein, and all evidence and testimony presented; and WHEREAS, the City Council finds and determines that approval of such amendments is in the best interests of residents of the City of Yakima and will promote the general health, safety and welfare; now, therefore BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The City Council hereby adopts as its own, and approves, the Findings of Fact, Conclusions of Law and Recommendation of the Planning Commission adopted by the Planning Commission following its special meeting on January 15, 2014, of record herein. Section 2. Section 15.01.035 of the Yakima Municipal Code is hereby amended to provide as follows: 15.01.035 Illegal Uses Prohibited. A. General. No use that is illegal under local, state or federal law shall be allowed in any zone within the city. 3 B. Specific Application — Medical Marijuana Dispensaries and Collective Gardens. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating dispensaries of cannabis and/or collective gardens for the production, distribution and dispensing of cannabis for medical uses, all as further defined and set forth in Chapter 69.51 A RCW and E2SSB 5073, Laws of 2011 of the State of Washington, such uses are not allowed in any zone within the city. For purposes of this section, "dispensary" means any person, entity, site, location, facility, business, cooperative, collective, whether for profit or not for profit, that distributes, sells, dispenses, transmits, packages, measures, labels, selects, processes, delivers, exchanges or gives away cannabis for medicinal or other purposes. C. Production, Processing and Retailing of Marijuana Prohibited. Production, processing, retail sale and retail outlets for the sale of marijuana and marijuana -infused products, all as defined in Initiative Measure No. 502, as codified in the Revised Code of Washington, and implementing regulations in Chapter 314-55 of the Washington Administrative Code, as now existing or hereafter amended, are each prohibited and not allowed in any zone within the city. Section 3. Except as amended herein, Title 15 of the Yakima Municipal Code shall remain unchanged. Section 4. The moratorium adopted and imposed on October 8, 2013 pursuant to Ordinance No. 2013-048 shall terminate upon the date this ordinance becomes effective in accordance with the provisions of Section 5 below. Section 5. This ordinance shall be in full force and effect 30 days after its passage, approval, and publication as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 21' day of January, 2014. ATTEST: City Clerk Publication Date: Effective Date: 4 Mayor (C) INITIATIVE MEASURE NO. 502. Initiative Measure No. 502 Filed July 8, 2011 BILL REQUEST - CODE REVISER'S OFFICE BILL REQ. #: ATTY/TYPIST: BRIEF DESCRIPTION: I-2465.1/11 Al:crs Initiative Measure No. 502 filed July 8, 2011 AN ACT Relating to marijuana; amending RCW 69.50.101, 69.50.401, 69.50.4013, 69.50.412, 69.50.4121, 69.50.500, 46.20.308, 46.61.502, 46.61.504, 46.61.50571, and 46.61.506; reenacting and amending RCW 69.50.505, 46.20.3101, and 46.61.503; adding a new section to chapter 46.04 RCW; adding new sections to chapter 69.50 RCW; creating new sections; and prescribing penalties. BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: PART I INTENT NEW SECTION. Sec. 1. The people intend to stop treating adult marijuana use as a crime and try a new approach that: (1) Allows law enforcement resources to be focused on violent and property crimes; (2) Generates new state and local tax revenue for education, health care, research, and substance abuse prevention; and (3) Takes marijuana out of the hands of illegal drug organizations and brings it under a tightly regulated, state -licensed system similar to that for controlling hard alcohol. This measure authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana. PART II DEFINITIONS Code Rev/AI:crs 1 I-2465.1/11 Sec. 2. RCW 69.50.101 and 2010 c 177 s 1 are each amended to read as follows: Unless the context clearly requires otherwise, definitions of terms shall be as indicated where used in this chapter: (a) "Administer" means to apply a controlled substance, whether by injection, inhalation, ingestion, or any other means, directly to the body of a patient or research subject by: (1) a practitioner authorized to prescribe (or, by the practitioner's authorized agent); or (2) the patient or research subject at the direction and in the presence of the practitioner. (b) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseperson, or employee of the carrier or warehouseperson. (c) "Board" means the state board of pharmacy. (d) "Controlled substance" means a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules. (e) (1) "Controlled substance analog" means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I or II and: (i) that has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II; or (ii) with respect to a particular individual, that the individual represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II. (2) The term does not include: (i) a controlled substance; Code Rev/AI:crs 2 I-2465.1/11 (ii) a substance for which there is an approved new drug application; (iii) a substance with respect to which an exemption is in effect for investigational use by a particular person under Section 505 of the federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 355, to the extent conduct with respect to the substance is pursuant to the exemption; or (iv) any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance. (f) "Deliver" or "delivery," means the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship. (g) "Department" means the department of health. (h) "Dispense" means the interpretation of a prescription or order for a controlled substance and, pursuant to that prescription or order, the proper selection, measuring, compounding, labeling, or packaging necessary to prepare that prescription or order for delivery. (i) "Dispenser" means a practitioner who dispenses. (j) "Distribute" means to deliver other than by administering or dispensing a controlled substance. (k) "Distributor" means a person who distributes. (1) "Drug" means (1) a controlled substance recognized as a drug in the official United States pharmacopoeia/national formulary or the official homeopathic pharmacopoeia of the United States, or any supplement to them; (2) controlled substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals; (3) controlled substances (other than food) intended to affect the structure or any function of the body of individuals or animals; and (4) controlled substances intended for use as a component of any article specified in (1), (2), or (3) of this subsection. The term does not include devices or their components, parts, or accessories. Code Rev/AI:crs 3 I-2465.1/11 (m) "Drug enforcement administration" means the drug enforcement administration in the United States Department of Justice, or its successor agency. (n) "Immediate precursor" means a substance: (1) that the state board of pharmacy has found to be and by rule designates as being the principal compound commonly used, or produced primarily for use, in the manufacture of a controlled substance; (2) that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance; and (3) the control of which is necessary to prevent, curtail, or limit the manufacture of the controlled substance. (o) "Isomer" means an optical isomer, but in RCW 69.50.101(((r))) (x) (5) , 69.50.204(a) (12) and (34) , and 69.50.206(b) (4) , the term includes any geometrical isomer; in RCW 69.50.204(a) (8) and (42), and 69.50.210(c) the term includes any positional isomer; and in RCW 69.50.204 (a) (35) , 69.50.204 (c) , and 69.50.208(a) the term includes any positional or geometric isomer. (p) "Lot" means a definite quantity of marijuana, useable marijuana, or marijuana -infused product identified by a lot number, every portion or package of which is uniform within recognized tolerances for the factors that appear in the labeling. (q) "Lot number" shall identify the licensee by business or trade name and Washington state unified business identifier number, and the date of harvest or processing for each lot of marijuana, useable marijuana, or marijuana -infused product. (r) "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. The term does not include the preparation, compounding, packaging, repackaging, labeling, or relabeling of a controlled substance: Code Rev/AI:crs 4 I-2465.1/11 (1) by a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice; or (2) by a practitioner, or by the practitioner's authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale. (({t})) (s) "Marijuana" or "marihuana" means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. (((r))) (t) "Marijuana processor" means a person licensed by the state liquor control board to process marijuana into useable marijuana and marijuana -infused products, package and label useable marijuana and marijuana -infused products for sale in retail outlets, and sell useable marijuana and marijuana -infused products at wholesale to marijuana retailers. (u) "Marijuana producer" means a person licensed by the state liquor control board to produce and sell marijuana at wholesale to marijuana processors and other marijuana producers. (v) "Marijuana -infused products" means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana -infused products" does not include useable marijuana. (w) "Marijuana retailer" means a person licensed by the state liquor control board to sell useable marijuana and marijuana -infused products in a retail outlet. (x) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable Code Rev/AI:crs 5 I-2465.1/11 origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (1) Opium, opium derivative, and any derivative of opium or opium derivative, including their salts, isomers, and salts of isomers, whenever the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation. The term does not include the isoquinoline alkaloids of opium. (2) Synthetic opiate and any derivative of synthetic opiate, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation. (3) Poppy straw and concentrate of poppy straw. (4) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives or ecgonine or their salts have been removed. (5) Cocaine, or any salt, isomer, or salt of isomer thereof. (6) Cocaine base. (7) Ecgonine, or any derivative, salt, isomer, or salt of isomer thereof. (8) Any compound, mixture, or preparation containing any quantity of any substance referred to in subparagraphs (1) through (7). (((s))) (y) "Opiate" means any substance having an addiction - forming or addiction -sustaining liability similar to morphine or being capable of conversion into a drug having addiction -forming or addiction -sustaining liability. The term includes opium, substances derived from opium (opium derivatives), and synthetic opiates. The term does not include, unless specifically designated as controlled under RCW 69.50.201, the dextrorotatory isomer of 3 -methoxy -n - methylmorphinan and its salts (dextromethorphan). The term includes the racemic and levorotatory forms of dextromethorphan. (((t))) (z) "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds. (((u))) (aa) "Person" means individual, corporation, business trust, estate, trust, partnership, association, joint venture, Code Rev/AI:crs 6 I-2465.1/11 government, governmental subdivision or agency, or any other legal or commercial entity. (((v))) (bb) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing. (((w))) (cc) "Practitioner" means: (1) A physician under chapter 18.71 RCW; a physician assistant under chapter 18.71A RCW; an osteopathic physician and surgeon under chapter 18.57 RCW; an osteopathic physician assistant under chapter 18.57A RCW who is licensed under RCW 18.57A.020 subject to any limitations in RCW 18.57A.040; an optometrist licensed under chapter 18.53 RCW who is certified by the optometry board under RCW 18.53.010 subject to any limitations in RCW 18.53.010; a dentist under chapter 18.32 RCW; a podiatric physician and surgeon under chapter 18.22 RCW; a veterinarian under chapter 18.92 RCW; a registered nurse, advanced registered nurse practitioner, or licensed practical nurse under chapter 18.79 RCW; a naturopathic physician under chapter 18.36A RCW who is licensed under RCW 18.36A.030 subject to any limitations in RCW 18.36A.040; a pharmacist under chapter 18.64 RCW or a scientific investigator under this chapter, licensed, registered or otherwise permitted insofar as is consistent with those licensing laws to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of their professional practice or research in this state. (2) A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state. (3) A physician licensed to practice medicine and surgery, a physician licensed to practice osteopathic medicine and surgery, a dentist licensed to practice dentistry, a podiatric physician and surgeon licensed to practice podiatric medicine and surgery, or a veterinarian licensed to practice veterinary medicine in any state of the United States. (((x))) (dd) "Prescription" means an order for controlled substances issued by a practitioner duly authorized by law or rule in Code Rev/AI:crs 7 I-2465.1/11 the state of Washington to prescribe controlled substances within the scope of his or her professional practice for a legitimate medical purpose. ((})) (ee) "Production" includes the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance. (((z))) (ff) "Retail outlet" means a location licensed by the state liquor control board for the retail sale of useable marijuana and marijuana -infused products. (gg) "Secretary" means the secretary of health or the secretary's designee. (((aa))) (hh) "State," unless the context otherwise requires, means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States. (((bb))) (ii) "THC concentration" means percent of delta -9 tetrahydrocannabinol content per dry weight of any part of the plant Cannabis, or per volume or weight of marijuana product. (jj) "Ultimate user" means an individual who lawfully possesses a controlled substance for the individual's own use or for the use of a member of the individual's household or for administering to an animal owned by the individual or by a member of the individual's household. (((cc))) (kk) "Useable marijuana" means dried marijuana flowers. The term "useable marijuana" does not include marijuana -infused products. (11) "Electronic communication of prescription information" means the communication of prescription information by computer, or the transmission of an exact visual image of a prescription by facsimile, or other electronic means for original prescription information or prescription refill information for a Schedule III -V controlled substance between an authorized practitioner and a pharmacy or the transfer of prescription information for a controlled substance from one pharmacy to another pharmacy. NEW SECTION. Sec. 3. A new section is added to chapter 46.04 RCW to read as follows: Code Rev/AI:crs 8 I-2465.1/11 "THC concentration" means nanograms of delta -9 tetrahydrocannabinol per milliliter of a person's whole blood. THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy -THC. PART III LICENSING AND REGULATION OF MARIJUANA PRODUCERS, PROCESSORS, AND RETAILERS NEW SECTION. Sec. 4. (1) There shall be a marijuana producer's license to produce marijuana for sale at wholesale to marijuana processors and other marijuana producers, liquor control board and subject to possession, delivery, annual distribution, and accordance with the provisions of this act regulated by the state renewal. The production, sale of marijuana in and the rules adopted to implement and enforce it, by a validly licensed marijuana producer, shall not be a criminal or civil offense under Washington state law. Every marijuana producer's license shall be issued applicant, shall specify the location at which the intends to operate, which must be within the state in the name of the marijuana producer of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana producer's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana producer's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana producer intends to produce marijuana. (2) There shall be a marijuana processor's license to process, package, and label useable marijuana and marijuana -infused products for sale at wholesale to marijuana retailers, regulated by the state liquor control board and subject to annual renewal. The processing, packaging, possession, delivery, distribution, and sale of marijuana, useable marijuana, and marijuana -infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana processor, shall not be a Code Rev/AI:crs 9 I-2465.1/11 criminal or civil offense under Washington state law. Every marijuana processor's license shall be issued in the name of the applicant, shall specify the location at which the licensee intends to operate, which must be within the state of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana processor's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana processor's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana processor intends to process marijuana. (3) There shall be a marijuana retailer's license to sell useable marijuana and marijuana -infused products at retail in retail outlets, regulated by the state liquor control board and subject to annual renewal. The possession, delivery, distribution, and sale of useable marijuana and marijuana -infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer, shall not be a criminal or civil offense under Washington state law. Every marijuana retailer's license shall be issued in the name of the applicant, shall specify the location of the retail outlet the licensee intends to operate, which must be within the state of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana retailer's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana retailer's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana retailer intends to sell useable marijuana and marijuana - infused products. NEW SECTION. Sec. 5. Neither a licensed marijuana producer nor a licensed marijuana processor shall have a direct or indirect financial interest in a licensed marijuana retailer. NEW SECTION. Sec. 6. (1) For the purpose of considering any application for a license to produce, process, or sell marijuana, or Code Rev/AI:crs 10 I-2465.1/11 for the renewal of a license to produce, process, or sell marijuana, the state liquor control board may cause an inspection of the premises to be made, and may inquire into all matters in connection with the construction and operation of the premises. For the purpose of reviewing any application for a license and for considering the denial, suspension, revocation, or renewal or denial thereof, of any license, the state liquor control board may consider any prior criminal conduct of the applicant including an administrative violation history record with the state liquor control board and a criminal history record information check. The state liquor control board may submit the criminal history record information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the forms. The state liquor control board shall require fingerprinting of any applicant whose criminal history record information check is submitted to the federal bureau of investigation. The provisions of RCW 9.95.240 and of chapter 9.96A RCW shall not apply to these cases. Subject to the provisions of this section, the state liquor control board may, in its discretion, grant or deny the renewal or license applied for. Denial may be based on, without limitation, the existence of chronic illegal activity documented in objections submitted pursuant to subsections (7) (c) and (9) of this section. Authority to approve an uncontested or unopposed license may be granted by the state liquor control board to any staff member the board designates in writing. Conditions for granting this authority shall be adopted by rule. No license of any kind may be issued to: (a) A person under the age of twenty-one years; (b) A person doing business as a sole proprietor who has not lawfully resided in the state for at least three months prior to applying to receive a license; (c) A partnership, employee cooperative, association, nonprofit corporation, or corporation unless formed under the laws of this Code Rev/AI:crs 11 I-2465.1/11 state, and unless all of the members thereof are qualified to obtain a license as provided in this section; or (d) A person whose place of business is conducted by a manager or agent, unless the manager or agent possesses the same qualifications required of the licensee. (2) (a) The state liquor control board may, in its discretion, subject to the provisions of section 7 of this act, suspend or cancel any license; and all protections of the licensee from criminal or civil sanctions under state law for producing, processing, or selling marijuana, useable marijuana, or marijuana -infused products thereunder shall be suspended or terminated, as the case may be. (b) The state liquor control board shall immediately suspend the license of a person who has been certified pursuant to RCW 74.20A.320 by the department of social and health services as a person who is not in compliance with a support order. If the person has continued to meet all other requirements for reinstatement during the suspension, reissuance of the license shall be automatic upon the state liquor control board's receipt of a release issued by the department of social and health services stating that the licensee is in compliance with the order. (c) The state liquor control board may request the appointment of administrative law judges under chapter 34.12 RCW who shall have power to administer oaths, issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, and testimony, examine witnesses, and to receive testimony in any inquiry, investigation, hearing, or proceeding in any part of the state, under rules and regulations the state liquor control board may adopt. (d) Witnesses shall be allowed fees and mileage each way to and from any inquiry, investigation, hearing, or proceeding at the rate authorized by RCW 34.05.446. Fees need not be paid in advance of appearance of witnesses to testify or to produce books, records, or other legal evidence. (e) In case of disobedience of any person to comply with the order of the state liquor control board or a subpoena issued by the state liquor control board, or any of its members, or administrative law Code Rev/AI:crs 12 I-2465.1/11 judges, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, the judge of the superior court of the county in which the person resides, on application of any member of the board or administrative law judge, shall compel obedience by contempt proceedings, as in the case of disobedience of the requirements of a subpoena issued from said court or a refusal to testify therein. (3) Upon receipt of notice of the suspension or cancellation of a license, the licensee shall forthwith deliver up the license to the state liquor control board. Where the license has been suspended only, the state liquor control board shall return the license to the licensee at the expiration or termination of the period of suspension. The state liquor control board shall notify all other licensees in the county where the subject licensee has its premises of the suspension or cancellation of the license; and no other licensee or employee of another licensee may allow or cause any marijuana, useable marijuana, or marijuana -infused products to be delivered to or for any person at the premises of the subject licensee. (4) Every license issued under this act shall be subject to all conditions and restrictions imposed by this act or by rules adopted by the state liquor control board to implement and enforce this act. All conditions and restrictions imposed by the state liquor control board in the issuance of an individual license shall be listed on the face of the individual license along with the trade name, address, and expiration date. (5) Every licensee shall post and keep posted its license, or licenses, in a conspicuous place on the premises. (6) No licensee shall employ any person under the age of twenty- one years. (7) (a) Before the state liquor control board issues a new or renewed license to an applicant it shall give notice of the application to the chief executive officer of the incorporated city or town, if the application is for a license within an incorporated city or town, or to the county legislative authority, if the application is for a license outside the boundaries of incorporated cities or towns. Code Rev/AI:crs 13 I-2465.1/11 (b) The incorporated city or town through the official or employee selected by it, or the county legislative authority or the official or employee selected by it, shall have the right to file with the state liquor control board within twenty days after the date of transmittal of the notice for applications, or at least thirty days prior to the expiration date for renewals, written objections against the applicant or against the premises for which the new or renewed license is asked. The state liquor control board may extend the time period for submitting written objections. (c) The written objections shall include a statement of all facts upon which the objections are based, and in case written objections are filed, the city or town or county legislative authority may request, and the state liquor control board may in its discretion hold, a hearing subject to the applicable provisions of Title 34 RCW. If the state liquor control board makes an initial decision to deny a license or renewal based on the written objections of an incorporated city or town or county legislative authority, the applicant may request a hearing subject to the applicable provisions of Title 34 RCW. If a hearing is held at the request of the applicant, state liquor control board representatives shall present and defend the state liquor control board's initial decision to deny a license or renewal. (d) Upon the granting of a license under this title the state liquor control board shall send written notification to the chief executive officer of the incorporated city or town in which the license is granted, or to the county legislative authority if the license is granted outside the boundaries of incorporated cities or towns. (8) The state liquor control board shall not issue a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older. Code Rev/AI:crs 14 I-2465.1/11 (9) In determining whether to grant or deny a license or renewal of any license, the state liquor control board shall give substantial weight to objections from an incorporated city or town or county legislative authority based upon chronic illegal activity associated with the applicant's operations of the premises proposed to be licensed or the applicant's operation of any other licensed premises, or the conduct of the applicant's patrons inside or outside the licensed premises. "Chronic illegal activity" means (a) a pervasive pattern of activity that threatens the public health, safety, and welfare of the city, town, or county including, but not limited to, open container violations, assaults, disturbances, disorderly conduct, or other criminal law violations, or as documented in crime statistics, police reports, emergency medical response data, calls for service, field data, or similar records of a law enforcement agency for the city, town, county, or any other municipal corporation or any state agency; or (b) an unreasonably high number of citations for violations of RCW 46.61.502 associated with the applicant's or licensee's operation of any licensed premises as indicated by the reported statements given to law enforcement upon arrest. NEW SECTION. Sec. 7. The action, order, or decision of the state liquor control board as to any denial of an application for the reissuance of a license to produce, process, or sell marijuana, or as to any revocation, suspension, or modification of any license to produce, process, or sell marijuana, shall be an adjudicative proceeding and subject to the applicable provisions of chapter 34.05 RCW. (1) An opportunity for a hearing may be provided to an applicant for the reissuance of a license prior to the disposition of the application, and if no opportunity for a prior hearing is provided then an opportunity for a hearing to reconsider the application must be provided the applicant. (2) An opportunity for a hearing must be provided to a licensee prior to a revocation or modification of any license and, except as Code Rev/AI:crs 15 I-2465.1/11 provided in subsection (4) of this section, prior to the suspension of any license. (3) No hearing shall be required until demanded by the applicant or licensee. (4) The state liquor control board may summarily suspend a license for a period of up to one hundred eighty days without a prior hearing if it finds that public health, safety, or require emergency action, and it incorporates a in its order. Proceedings for revocation or welfare imperatively finding to that effect other action must be promptly instituted and determined. An administrative law judge may extend the summary suspension period for up to one calendar year from the first day of the initial summary suspension in the event the proceedings for revocation or other action cannot be completed during the initial one hundred eighty -day period due to actions by the licensee. The state liquor control board's enforcement division shall complete a preliminary staff investigation of the violation before requesting an emergency suspension by the state liquor control board. NEW SECTION. Sec. 8. approves, a license to produ transferred, without charge, partner of a deceased licensee (1) If the state liquor control board ce, process, or sell marijuana may be to the surviving spouse or domestic if the license was issued in the names of one or both of the parties. For the purpose of considering the qualifications of the surviving party to receive a marijuana producer's, marijuana processor's, or marijuana retailer's license, the state liquor control information check. The criminal history record board may require a criminal history record state liquor control board may submit the information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the fingerprinting forms. The state liquor control board shall require of any applicant whose criminal history record information check is submitted to the federal bureau of investigation. Code Rev/AI:crs 16 I-2465.1/11 (2) The proposed sale of more than ten percent of the outstanding or issued stock of a corporation licensed under this act, or any proposed change in the officers of such a corporation, must be reported to the state liquor control board, and state liquor control board approval must be obtained before the changes are made. A fee of seventy-five dollars will be charged for the processing of the change of stock ownership or corporate officers. NEW SECTION. Sec. 9. For the purpose of carrying into effect the provisions of this act according to their true intent or of supplying any deficiency therein, the state liquor control board may adopt rules not inconsistent with the spirit of this act as are deemed necessary or advisable. Without limiting the generality of the preceding sentence, the state liquor control board is empowered to adopt rules regarding the following: (1) The equipment and management of retail outlets and premises where marijuana is produced or processed, and inspection of the retail outlets and premises; (2) The books and records to be created and maintained by licensees, the reports to be made thereon to the state liquor control board, and inspection of the books and records; (3) Methods of producing, processing, and packaging marijuana, useable marijuana, and marijuana -infused products; conditions of sanitation; and standards of ingredients, quality, and identity of marijuana, useable marijuana, and marijuana -infused products produced, processed, packaged, or sold by licensees; (4) Security requirements for retail outlets and premises where marijuana is produced or processed, and safety protocols for licensees and their employees; (5) Screening, hiring, training, and supervising employees of licensees; (6) Retail outlet locations and hours of operation; (7) Labeling requirements and restrictions on advertisement of marijuana, useable marijuana, and marijuana -infused products; Code Rev/AI:crs 17 I-2465.1/11 (8) Forms to be used for purposes of this act or the rules adopted to implement and enforce it, the terms and conditions to be contained in licenses issued under this act, and the qualifications for receiving a license issued under this act, including a criminal history record information check. The state liquor control board may submit any criminal history record information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the forms. The state liquor control board shall require fingerprinting of any applicant whose criminal history record information check is submitted to the federal bureau of investigation; (9) Application, reinstatement, and renewal fees for licenses issued under this act, and fees for anything done or permitted to be done under the rules adopted to implement and enforce this act; (10) The manner of giving and serving notices required by this act or rules adopted to implement or enforce it; (11) Times and periods when, and the manner, methods, and means by which, licensees shall transport and deliver marijuana, useable marijuana, and marijuana -infused products within the state; (12) Identification, seizure, confiscation, destruction, or donation to law enforcement for training purposes of all marijuana, useable marijuana, and marijuana -infused products produced, processed, sold, or offered for sale within this state which do not conform in all respects to the standards prescribed by this act or the rules adopted to implement and enforce it: PROVIDED, That nothing in this act shall be construed as authorizing the state liquor control board to seize, confiscate, destroy, or donate to law enforcement marijuana, useable marijuana, or marijuana -infused products produced, processed, sold, offered for sale, or possessed in compliance with the Washington state medical use of cannabis act, chapter 69.51A RCW. NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that Code Rev/AI:crs 18 I-2465.1/11 establish the procedures and criteria necessary to implement the following: (1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market; (3) Determining the maximum quantity of marijuana a marijuana producer may have on the premises of a licensed location at any time without violating Washington state law; (4) Determining the maximum quantities of marijuana, useable marijuana, and marijuana -infused products a marijuana processor may have on the premises of a licensed location at any time without violating Washington state law; (5) Determining the maximum quantities of useable marijuana and marijuana -infused products a marijuana retailer may have on the premises of a retail outlet at any time without violating Washington state law; (6) In making the determinations required by subsections (3) through (5) of this section, the state liquor control board shall take into consideration: (a) Security and safety issues; (b) The provision of adequate access to licensed sources of marijuana, useable marijuana, and marijuana -infused products to discourage purchases from the illegal market; and (c) Economies of scale, and their impact on licensees' ability to both comply with regulatory requirements and undercut illegal market prices; Code Rev/AI:crs 19 I-2465.1/11 (7) Determining the nature, form, and capacity of all containers to be used by licensees to contain marijuana, useable marijuana, and marijuana -infused products, and their labeling requirements, to include but not be limited to: (a) The business or trade name and Washington state unified business identifier number of the licensees that grew, processed, and sold the marijuana, useable marijuana, or marijuana -infused product; (b) Lot numbers of the marijuana, useable marijuana, or marijuana - infused product; (c) THC concentration of the marijuana, useable marijuana, or marijuana -infused product; (d) Medically and scientifically accurate information about the health and safety risks posed by marijuana use; and (e) Language required by RCW 69.04.480; (8) In consultation with the department of agriculture, establishing classes of marijuana, useable marijuana, and marijuana - infused products according to grade, condition, cannabinoid profile, THC concentration, or other qualitative measurements deemed appropriate by the state liquor control board; (9) Establishing reasonable time, place, and manner restrictions and requirements regarding advertising of marijuana, useable marijuana, and marijuana -infused products that are not inconsistent with the provisions of this act, taking into consideration: (a) Federal laws relating to marijuana that are applicable within Washington state; (b) Minimizing exposure of people under twenty-one years of age to the advertising; and (c) The inclusion of medically and scientifically accurate information about the health and safety risks posed by marijuana use in the advertising; (10) Specifying and regulating the time and periods when, and the manner, methods, and means by which, licensees shall transport and deliver marijuana, useable marijuana, and marijuana -infused products within the state; Code Rev/AI:crs 20 I-2465.1/11 (11) In consultation with the department and the department of agriculture, establishing accreditation requirements for testing laboratories used by licensees to demonstrate compliance with standards adopted by the state liquor control board, and prescribing methods of producing, processing, and packaging marijuana, useable marijuana, and marijuana -infused products; conditions of sanitation; and standards of ingredients, quality, and identity of marijuana, useable marijuana, and marijuana -infused products produced, processed, packaged, or sold by licensees; (12) Specifying procedures for identifying, seizing, confiscating, destroying, and donating to law enforcement for training purposes all marijuana, useable marijuana, and marijuana -infused products produced, processed, packaged, labeled, or offered for sale in this state that do not conform in all respects to the standards prescribed by this act or the rules of the state liquor control board. NEW SECTION. Sec. 11. (1) On a schedule determined by the state liquor control board, every licensed marijuana producer and processor must submit representative samples of marijuana, useable marijuana, or marijuana -infused products produced or processed by the licensee to an independent, third -party testing laboratory meeting the accreditation requirements established by the state liquor control board, for inspection and testing to certify compliance with standards adopted by the state liquor control board. Any sample remaining after testing shall be destroyed by the laboratory or returned to the licensee. (2) Licensees must submit the results of this inspection and testing to the state liquor control board on a form developed by the state liquor control board. (3) If a representative sample inspected and tested under this section does not meet the applicable standards adopted by the state liquor control board, the entire lot from which the sample was taken must be destroyed. NEW SECTION. Sec. 12. Except as provided by chapter 42.52 RCW, no member of the state liquor control board and no employee of the Code Rev/AI:crs 21 I-2465.1/11 state liquor control board shall have any interest, directly or indirectly, in the producing, processing, or sale of marijuana, useable marijuana, or marijuana -infused products, or derive any profit or remuneration from the sale of marijuana, useable marijuana, or marijuana -infused products other than the salary or wages payable to him or her in respect of his or her office or position, and shall receive no gratuity from any person in connection with the business. NEW SECTION. Sec. 13. There may be licensed, in no greater number in each of the counties of the state than as the state liquor control board shall deem advisable, retail outlets established for the purpose of making useable marijuana and marijuana -infused products available for sale to adults aged twenty-one and over. Retail sale of useable marijuana and marijuana -infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer or retail outlet employee, shall not be a criminal or civil offense under Washington state law. NEW SECTION. Sec. 14. (1) Retail outlets shall sell no products or services other than useable marijuana, marijuana -infused products, or paraphernalia intended for the storage or use of useable marijuana or marijuana -infused products. (2) Licensed marijuana retailers shall not employ persons under twenty-one years of age or allow persons under twenty-one years of age to enter or remain on the premises of a retail outlet. (3) Licensed marijuana retailers shall not display any signage in a window, on a door, or on the outside of the premises of a retail outlet that is visible to the general public from a public right-of- way, other than a single sign no larger than one thousand six hundred square inches identifying the retail outlet by the licensee's business or trade name. (4) Licensed marijuana retailers shall not display useable marijuana or marijuana -infused products in a manner that is visible to the general public from a public right-of-way. Code Rev/AI:crs 22 I-2465.1/11 (5) No licensed marijuana retailer or employee of a retail outlet shall open or consume, or allow to be opened or consumed, any useable marijuana or marijuana -infused product on the outlet premises. (6) The state liquor control board shall fine a licensee one thousand dollars for each violation of any subsection of this section. Fines collected under this section must be deposited into the dedicated marijuana fund created under section 26 of this act. NEW SECTION. Sec. 15. The following acts, when performed by a validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: (1) Purchase and receipt of useable marijuana or marijuana -infused products that have been properly packaged and labeled from a marijuana processor validly licensed under this act; (2) Possession of quantities of useable marijuana or marijuana - infused products that do not exceed the maximum amounts established by the state liquor control board under section 10(5) of this act; and (3) Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana -infused product to any person twenty-one years of age or older: (a) One ounce of useable marijuana; (b) Sixteen ounces of marijuana -infused product in solid form; or (c) Seventy-two ounces of marijuana -infused product in liquid form. NEW SECTION. Sec. 16. The following acts, when performed by a validly licensed marijuana processor or employee of a validly licensed marijuana processor in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: Code Rev/AI:crs 23 I-2465.1/11 (1) Purchase and receipt of marijuana that has been properly packaged and labeled from a marijuana producer validly licensed under this act; (2) Possession, processing, packaging, and labeling of quantities of marijuana, useable marijuana, and marijuana -infused products that do not exceed the maximum amounts established by the state liquor control board under section 10(4) of this act; and (3) Delivery, distribution, and sale of useable marijuana or marijuana -infused products to a marijuana retailer validly licensed under this act. NEW SECTION. Sec. 17. The following acts, when performed by a validly licensed marijuana producer or employee of a validly licensed marijuana producer in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: (1) Production or possession of quantities of marijuana that do not exceed the maximum amounts established by the state liquor control board under section 10(3) of this act; and (2) Delivery, distribution, and sale of marijuana to a marijuana processor or another marijuana producer validly licensed under this act. NEW SECTION. Sec. 18. (1) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertisement of marijuana, useable marijuana, or a marijuana -infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. Code Rev/AI:crs 24 I-2465.1/11 (2) Merchandising within a retail outlet is not advertising for the purposes of this section. (3) This section does not apply to a noncommercial message. (4) The state liquor control board shall fine a licensee one thousand dollars for each violation of subsection (1) of this section. Fines collected under this subsection must be deposited into the dedicated marijuana fund created under section 26 of this act. Sec. 19. RCW 69.50.401 and 2005 c 218 s 1 are each amended to read as follows: (1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. (2) Any person who violates this section with respect to: (a) A controlled substance classified in Schedule I or II which is a narcotic drug or flunitrazepam, including its salts, isomers, and salts of isomers, classified in Schedule IV, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, or (i) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (ii) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine; (b) Amphetamine, including its salts, isomers, and salts of isomers, or methamphetamine, including its salts, isomers, and salts of isomers, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, or (i) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (ii) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine. Three thousand dollars of the Code Rev/AI:crs 25 I-2465.1/11 fine may not be suspended. As collected, the first three thousand dollars of the fine must be deposited with the law enforcement agency having responsibility for cleanup of laboratories, sites, or substances its salts, with that law enforcement agency must be used for such clean-up cost; (c) Any other controlled substance classified in Schedule I, II, or III, is guilty of a class C felony punishable according to chapter 9A.20 RCW; (d) A substance classified in Schedule IV, except flunitrazepam, including its salts, isomers, and salts of isomers, is guilty of a class C felony punishable according to chapter 9A.20 RCW; or (e) A substance classified in Schedule V, is guilty of a class C felony punishable according to chapter 9A.20 RCW. (3) The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with the terms set forth in section 15, 16, or 17 of this act shall not constitute a violation of this section, this chapter, or any other provision of Washington state law. used in the manufacture of the methamphetamine, including isomers, and salts of isomers. The fine moneys deposited Sec. 20. RCW 69.50.4013 and 2003 c 53 s 334 are each amended to read as follows: (1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. (2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW. (3) The possession, by a person twenty-one years of age or older, of useable marijuana or marijuana -infused products in amounts that do not exceed those set forth in section 15(3) of this act is not a violation of this section, this chapter, or any other provision of Washington state law. Code Rev/AI:crs 26 I-2465.1/11 NEW SECTION. Sec. 21. It is unlawful to open a package containing marijuana, useable marijuana, or a marijuana -infused product, or consume marijuana, useable marijuana, or a marijuana - infused product, in view of the general public. A person who violates this section is guilty of a class 3 civil infraction under chapter 7.80 RCW. Sec. 22. RCW 69.50.412 and 2002 c 213 s 1 are each amended to read as follows: (1) It is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana. Any person who violates this subsection is guilty of a misdemeanor. (2) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana. Any person who violates this subsection is guilty of a misdemeanor. (3) Any person eighteen years of age or over who violates subsection (2) of this section by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his junior is guilty of a gross misdemeanor. (4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this subsection is guilty of a misdemeanor. Code Rev/AI:crs 27 I-2465.1/11 (5) It is lawful for any person over the age of eighteen to possess sterile hypodermic syringes and needles for the purpose of reducing bloodborne diseases. Sec. 23. RCW 69.50.4121 and 2002 c 213 s 2 are each amended to read as follows: (1) Every person who sells or gives, or permits to be sold or given to any person any drug paraphernalia in any form commits a class I civil infraction under chapter 7.80 RCW. For purposes of this subsection, "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance other than marijuana. Drug paraphernalia includes, but is not limited to objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing ((marihuana,)) cocaine((, hashish, r hashish e4)) into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (b) Water pipes; (c) Carburetion tubes and devices; (d) Smoking and carburetion masks; (e) ((R ach clips: Mcaning bjccts uscd t h ld burning matcrial, such as a marihuana cigarcttc, that has bcc mc t small r t sh rt t be hcld in the hand; (f))) Miniature cocaine spoons and cocaine vials; ((-(}) ) (f) Chamber pipes; (4h*)) (g) Carburetor pipes; (((i))) (h) Electric pipes; (((j))) (i) Air -driven pipes; Code Rev/AI:crs 28 I-2465.1/11 (((k) Chillums; (1) B ngs;)) and (({f})) (j) Ice pipes or chillers. (2) It shall be no defense to a prosecution for a violation of this section that the person acted, or was believed by the defendant to act, as agent or representative of another. (3) Nothing in subsection (1) of this section prohibits legal distribution of injection syringe equipment through public health and community based HIV prevention programs, and pharmacies. Sec. 24. RCW 69.50.500 and 1989 1st ex.s. c 9 s 437 are each amended to read as follows: (a) It is hereby made the duty of the state board of pharmacy, the department, the state liquor control board, and their officers, agents, inspectors and representatives, and all law enforcement officers within the state, and of all prosecuting attorneys, to enforce all provisions of this chapter, except those specifically delegated, and to cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and all other states, relating to controlled substances as defined in this chapter. (b) Employees of the department of health, who are so designated by the board as enforcement officers are declared to be peace officers and shall be vested with police powers to enforce the drug laws of this state, including this chapter. Sec. 25. RCW 69.50.505 and 2009 c 479 s 46 and 2009 c 364 s 1 are each reenacted and amended to read as follows: (1) The following are subject to seizure and forfeiture and no property right exists in them: (a) All controlled substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of this chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as defined in RCW 64.44.010, used or intended to be used in the manufacture of controlled substances; Code Rev/AI:crs 29 I-2465.1/11 (b) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW; (c) All property which is used, or intended for use, as a container for property described in (a) or (b) of this subsection; (d) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate the sale, delivery, or receipt of property described in (a) or (b) of this subsection, except that: (i) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter or chapter 69.41 or 69.52 RCW; (ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; (iii) No conveyance is subject to forfeiture under this section if used in the receipt of only an amount of marijuana for which possession constitutes a misdemeanor under RCW 69.50.4014; (iv) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; and (v) When the owner of a conveyance has been arrested under this chapter or chapter 69.41 or 69.52 RCW the conveyance in which the person is arrested may not be subject to forfeiture unless it is seized or process is issued for its seizure within ten days of the owner's arrest; (e) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter or chapter 69.41 or 69.52 RCW; Code Rev/AI:crs 30 I-2465.1/11 (f) All drug paraphernalia2l other than paraphernalia possessed, sold, or used solely to facilitate marijuana -related activities that are not violations of this chapter; (g) All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or chapter 69.41 or 69.52 RCW. A forfeiture of money, negotiable instruments, securities, or other tangible or intangible property encumbered by a bona fide security interest is subject to the interest of the secured party if, at the time the security interest was created, the secured party neither had knowledge of nor consented to the act or omission. No personal property may be forfeited under this subsection (1) (g), to the extent of the interest of an owner, by reason of any act or omission which that owner establishes was committed or omitted without the owner's knowledge or consent; and (h) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance, or which have been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW, if such activity is not less than a class C felony and a substantial nexus exists between the commercial production or sale of the controlled substance and the real property. However: (i) No property may be forfeited pursuant to this subsection (1) (h), to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owner's knowledge or consent; Code Rev/AI:crs 31 I-2465.1/11 (ii) The bona fide gift of a controlled substance, legend drug, or imitation controlled substance shall not result in the forfeiture of real property; (iii) The possession of marijuana shall not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes that are unlawful under Washington state law, the amount possessed is five or more plants or one pound or more of marijuana, and a substantial nexus exists between the possession of marijuana and the real property. In such a case, the intent of the offender shall be determined by the preponderance of the evidence, including the offender's prior criminal history, the amount of marijuana possessed by the offender, the sophistication of the activity or equipment used by the offender, whether the offender was licensed to produce, process, or sell marijuana, or was an employee of a licensed producer, processor, or retailer, and other evidence which demonstrates the offender's intent to engage in unlawful commercial activity; (iv) The unlawful sale of marijuana or a legend drug shall not result in the forfeiture of real property unless the sale was forty grams or more in the case of marijuana or one hundred dollars or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property; and (v) A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party, at the time the security interest was created, neither had knowledge of nor consented to the act or omission. (2) Real or personal property subject to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of real property shall include the filing of a lis pendens by the seizing agency. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later: PROVIDED, That real property seized under this section may be transferred or conveyed to Code Rev/AI:crs 32 I-2465.1/11 any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. Seizure of personal property without process may be made if: (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter; (c) A board inspector or law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or (d) The board inspector or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter. (3) In the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9A RCW, or a certificate of title, shall be made by service upon the secured party or the secured party's assignee at the address shown on the financing statement or the certificate of title. The notice of Code Rev/AI:crs 33 I-2465.1/11 seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure. (4) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1)(d), (g), or (h) of this section within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the item seized shall be deemed forfeited. The community property interest in real property of a person whose spouse or domestic partner committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation. (5) If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1) (b) , (c) , (d) , (e) , (f) , (g) , or (h) of this section within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The notice of claim may be served by any method authorized by law or court rule including, but not limited to, service by first-class mail. Service by mail shall be deemed complete upon mailing within the forty-five day period following service of the notice of seizure in the case of personal property and within the ninety -day period following service of the notice of seizure in the case of real property. The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of Code Rev/AI:crs 34 I-2465.1/11 competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty- five days after the person seeking removal has notified the seizing law enforcement agency of the person's claim of ownership or right to possession. The court to which the matter is to be removed shall be the district court when the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture. The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (1) (b) , (c) , (d) , (e) , (f) , (g) , or (h) of this section. (6) In any proceeding to forfeit property under this title, where the claimant substantially prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred by the claimant. In addition, in a court hearing between two or more claimants to the article or articles involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys' fees. (7) When property is forfeited under this chapter the board or seizing law enforcement agency may: (a) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use of enforcing the provisions of this chapter; (b) Sell that which is not required to be destroyed by law and which is not harmful to the public; Code Rev/AI:crs 35 I-2465.1/11 (c) Request the appropriate sheriff or director of public safety to take custody of the property and remove it for disposition in accordance with law; or (d) Forward it to the drug enforcement administration for disposition. (8) (a) When property is forfeited, the seizing agency shall keep a record indicating the identity of the prior owner, if known, a description of the property, the disposition of the property, the value of the property at the time of seizure, and the amount of proceeds realized from disposition of the property. (b) Each seizing agency shall retain records of forfeited property for at least seven years. (c) Each seizing agency shall file a report including a copy of the records of forfeited property with the state treasurer each calendar quarter. (d) The quarterly report need not include a record of forfeited property that is still being held for use as evidence during the investigation or prosecution of a case or during the appeal from a conviction. (9) (a) By January 31st of each year, each seizing agency shall remit to the state treasurer an amount equal to ten percent of the net proceeds of any property forfeited during the preceding calendar year. Money remitted shall be deposited in the state general fund. (b) The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of satisfying any bona fide security interest to which the property is subject at the time of seizure; and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents, and the cost of any valid landlord's claim for damages under subsection (15) of this section. (c) The value of sold forfeited property is the sale price. The value of retained forfeited property is the fair market value of the property at the time of seizure, determined when possible by reference to an applicable commonly used index, such as the index used by the Code Rev/AI:crs 36 I-2465.1/11 department of licensing for valuation of motor vehicles. A seizing agency may use, but need not use, an independent qualified appraiser to determine the value of retained property. If an appraiser is used, the value of the property appraised is net of the cost of the appraisal. The value of destroyed property and retained firearms or illegal property is zero. (10) Forfeited property and net proceeds not required to be paid to the state treasurer shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of controlled substances related law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources. (11) Controlled substances listed in Schedule I, II, III, IV, and V that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I, II, III, IV, and V, which are seized or come into the possession of the board, the owners of which are unknown, are contraband and shall be summarily forfeited to the board. (12) Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the board. (13) The failure, upon demand by a board inspector or law enforcement officer, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration or proof that he or she is the holder thereof constitutes authority for the seizure and forfeiture of the plants. (14) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the assessor of the county in which the property is located. Orders for the forfeiture of real property shall be entered by the superior court, subject to court rules. Such an order shall be filed by the seizing agency in the Code Rev/AI:crs 37 I-2465.1/11 county auditor's records in the county in which the real property is located. (15)(a) A landlord may assert a claim against proceeds from the sale of assets seized and forfeited under subsection (7) (b) of this section, only if: (((a))) (i) A law enforcement officer, while acting in his or her official capacity, directly caused damage to the complaining landlord's property while executing a search of a tenant's residence; and ((*]e+)) (ii) The landlord has applied any funds remaining in the tenant's deposit, to which the landlord has a right under chapter 59.18 RCW, to cover the damage directly caused by a law enforcement officer prior to asserting a claim under the provisions of this section; (((i))) (A) Only if the funds applied under ((-Oe})) (a) (ii) of this subsection are insufficient to satisfy the damage directly caused by a law enforcement officer, may the landlord seek compensation for the damage by filing a claim against the governmental entity under whose authority the law enforcement agency operates within thirty days after the search; (((ii))) (B) Only if the governmental entity denies or fails to respond to the landlord's claim within sixty days of the date of filing, may the landlord collect damages under this subsection by filing within thirty days of denial or the expiration of the sixty-day period, whichever occurs first, a claim with the seizing law enforcement agency. The seizing law enforcement agency must notify the landlord of the status of the claim by the end of the thirty -day period. Nothing in this section requires the claim to be paid by the end of the sixty-day or thirty -day period. (((c))) (b) For any claim filed under ((-0e-})) (a) (ii) of this subsection, the law enforcement agency shall pay the claim unless the agency provides substantial proof that the landlord either: (i) Knew or consented to actions of the tenant in violation of this chapter or chapter 69.41 or 69.52 RCW; or Code Rev/AI:crs 38 I-2465.1/11 (ii) Failed to respond to a notification of the illegal activity, provided by a law enforcement agency under RCW 59.18.075, within seven days of receipt of notification of the illegal activity. (16) The landlord's claim for damages under subsection (15) of this section may not include a claim for loss of business and is limited to: (a) Damage to tangible property and clean-up costs; (b) The lesser of the cost of repair or fair market value of the damage directly caused by a law enforcement officer; (c) The proceeds from the sale of the specific tenant's property seized and forfeited under subsection (7)(b) of this section; and (d) The proceeds available after the seizing law enforcement agency satisfies any bona fide security interest in the tenant's property and costs related to sale of the tenant's property as provided by subsection (9) (b) of this section. (17) Subsections (15) and (16) of this section do not limit any other rights a landlord may have against a tenant to collect for damages. However, if a law enforcement agency satisfies a landlord's claim under subsection (15) of this section, the rights the landlord has against the tenant for damages directly caused by a law enforcement officer under the terms of the landlord and tenant's contract are subrogated to the law enforcement agency. PART IV DEDICATED MARIJUANA FUND NEW SECTION. Sec. 26. (1) There shall be a fund, known as the dedicated marijuana fund, which shall consist of all marijuana excise taxes, license fees, penalties, forfeitures, and all other moneys, income, or revenue received by the state liquor control board from marijuana -related activities. The state treasurer shall be custodian of the fund. (2) All moneys received by the state liquor control board or any employee thereof from marijuana -related activities shall be deposited each day in a depository approved by the state treasurer and Code Rev/AI:crs 39 I-2465.1/11 transferred to the state treasurer to be credited to the dedicated marijuana fund. (3) Disbursements from the dedicated marijuana fund shall be on authorization of the state liquor control board or a duly authorized representative thereof. NEW SECTION. Sec. 27. (1) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each wholesale sale in this state of marijuana by a licensed marijuana producer to a licensed marijuana processor or another licensed marijuana producer. This tax is the obligation of the licensed marijuana producer. (2) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each wholesale sale in this state of useable marijuana or marijuana -infused product by a licensed marijuana processor to a licensed marijuana retailer. This tax is the obligation of the licensed marijuana processor. (3) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each retail sale in this state of useable marijuana and marijuana -infused products. This tax is the obligation of the licensed marijuana retailer, is separate and in addition to general state and local sales and use taxes that apply to retail sales of tangible personal property, and is part of the total retail price to which general state and local sales and use taxes apply. (4) All revenues collected from the marijuana excise taxes imposed under subsections (1) through (3) of this section shall be deposited each day in a depository approved by the state treasurer and transferred to the state treasurer to be credited to the dedicated marijuana fund. (5) The state liquor control board shall regularly review the tax levels established under this section and make recommendations to the legislature as appropriate regarding adjustments that would further the goal of discouraging use while undercutting illegal market prices. Code Rev/AI:crs 40 I-2465.1/11 NEW SECTION. Sec. 28. All marijuana excise taxes collected from sales of marijuana, useable marijuana, and marijuana -infused products under section 27 of this act, and the license fees, penalties, and forfeitures derived under this act from marijuana producer, marijuana processor, and marijuana retailer licenses shall every three months be disbursed by the state liquor control board as follows: (1) One hundred twenty-five thousand dollars to the department of social and health services to design and administer the Washington state healthy youth survey, analyze the collected data, and produce reports, in collaboration with the office of the superintendent of public instruction, department of health, department of commerce, family policy council, and state liquor control board. The survey shall be conducted at least every two years and include questions regarding, but not necessarily limited to, academic achievement, age at time of substance use initiation, antisocial behavior of friends, attitudes toward antisocial behavior, attitudes toward substance use, laws and community norms regarding antisocial behavior, family conflict, family management, parental attitudes toward substance use, peer rewarding of antisocial behavior, perceived risk of substance use, and rebelliousness. Funds disbursed under this subsection may be used to expand administration of the healthy youth survey to student populations attending institutions of higher education in Washington; (2) Fifty thousand dollars to the department of social and health services for the purpose of contracting with the Washington state institute for public policy to conduct the cost -benefit evaluation and produce the reports described in section 30 of this act. This appropriation shall end after production of the final report required by section 30 of this act; (3) Five thousand dollars to the University of Washington alcohol and drug abuse institute for the creation, maintenance, and timely updating of web -based public education materials providing medically and scientifically accurate information about the health and safety risks posed by marijuana use; Code Rev/AI:crs 41 I-2465.1/11 (4) An amount not exceeding one million two hundred fifty thousand dollars to the state liquor control board as is necessary for administration of this act; (5) Of the funds remaining after the disbursements identified in subsections (1) through (4) of this section: (a) Fifteen percent to the department of social and health services division of behavioral health and recovery for implementation and maintenance of programs and practices aimed at the prevention or reduction of maladaptive substance use, substance -use disorder, substance abuse or substance dependence, as these terms are defined in the Diagnostic and Statistical Manual of Mental Disorders, among middle school and high school age students, whether as an explicit goal of a given program or practice or as a consistently corresponding effect of its implementation; PROVIDED, That: (i) Of the funds disbursed under (a) of this subsection, at least eighty-five percent must be directed to evidence -based and cost - beneficial programs and practices that produce objectively measurable results; and (ii) Up to fifteen percent of the funds disbursed under (a) of this subsection may be directed to research -based and emerging best practices or promising practices. In deciding which programs and practices to fund, the secretary of the department of social and health services shall consult, at least annually, with the University of Washington's social development research group and the University of Washington's alcohol and drug abuse institute; (b) Ten percent to the department of health for the creation, implementation, operation, and management of a marijuana education and public health program that contains the following: (i) A marijuana use public health hotline that provides referrals to substance abuse treatment providers, utilizes evidence -based or research -based public health approaches to minimizing the harms associated with marijuana use, and does not solely advocate an abstinence -only approach; Code Rev/AI:crs 42 I-2465.1/11 (ii) A grants program for local health departments or other local community agencies that supports development and implementation of coordinated intervention strategies for the prevention and reduction of marijuana use by youth; and (iii) Media -based education campaigns across television, internet, radio, print, and out -of -home advertising, separately targeting youth and adults, that provide medically and scientifically accurate information about the health and safety risks posed by marijuana use; (c) Six -tenths of one percent to the University of Washington and four -tenths of one percent to Washington State University for research on the short and long-term effects of marijuana use, to include but not be limited to formal and informal methods for estimating and measuring intoxication and impairment, and for the dissemination of such research; (d) Fifty percent to the state basic health plan trust account to be administered by the Washington basic health plan administrator and used as provided under chapter 70.47 RCW; (e) Five percent to the Washington state health care authority to be expended exclusively through contracts with community health centers to provide primary health and dental care services, migrant health services, and maternity health care services as provided under RCW 41.05.220; (f) Three -tenths of one percent to the office of the superintendent of public instruction to fund grants to building bridges programs under chapter 28A.175 RCW; and (g) The remainder to the general fund. NEW SECTION. Sec. 29. The department of social and health services and the department of health shall, by December 1, 2013, adopt rules not inconsistent with the spirit of this act as necessary or advisable to carry into effect the provisions 28 of this act. NEW SECTION. Sec. public policy shall Code Rev/AI:crs are deemed of section 30. (1) The Washington state institute for conduct cost -benefit evaluations of the 43 I-2465.1/11 implementation of this act. A preliminary report, and recommendations to appropriate committees of the legislature, shall be made by September 1, 2015, and the first final report with recommendations by September 1, 2017. Subsequent reports shall be due September 1, 2022, and September 1, 2032. (2) The evaluation of the implementation of this act shall include, but not necessarily be limited to, consideration of the following factors: (a) Public health, to include but not be limited to: (i) Health costs associated with marijuana use; (ii) Health costs associated with criminal prohibition of marijuana, including lack of product safety or quality control regulations and the relegation of marijuana to the same illegal market as potentially more dangerous substances; and (iii) The impact of increased investment in the research, evaluation, education, prevention and intervention programs, practices, and campaigns identified in section 16 of this act on rates of marijuana -related maladaptive substance use and diagnosis of marijuana -related substance -use disorder, substance abuse, or substance dependence, as these terms are defined in the Diagnostic and Statistical Manual of Mental Disorders; (b) Public safety, to include but not be limited to: (i) Public safety issues relating to marijuana use; and (ii) Public safety issues relating to criminal prohibition of marijuana; (c) Youth and adult rates of the following: (i) Marijuana use; (ii) Maladaptive use of marijuana; and (iii) Diagnosis of marijuana -related substance -use disorder, substance abuse, or substance dependence, including primary, secondary, and tertiary choices of substance; (d) Economic impacts in the private and public sectors, including but not limited to: (i) Jobs creation; (ii) Workplace safety; Code Rev/AI:crs 44 I-2465.1/11 (iii) Revenues; and (iv) Taxes generated for state and local budgets; (e) Criminal justice impacts, to include but not be limited to: (i) Use of public resources like law enforcement officers and equipment, prosecuting attorneys and public defenders, judges and court staff, the Washington state patrol crime lab and identification and criminal history section, jails and prisons, and misdemeanant and felon supervision officers to enforce state criminal laws regarding marijuana; and (ii) Short and long-term consequences of involvement in the criminal justice system for persons accused of crimes relating to marijuana, their families, and their communities; and (f) State and local agency administrative costs and revenues. PART V DRIVING UNDER THE INFLUENCE OF MARIJUANA Sec. 31. RCW 46.20.308 and 2008 c 282 s 2 are each amended to read as follows: (1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood. (2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of Code Rev/AI:crs 45 I-2465.1/11 intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol or THC in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. However, in those instances where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility or where the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(5). The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that: (a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and (c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if: (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.08 or more((y)) or that the THC concentration of the driver's blood is 5.00 or more; or ((if)) (ii) The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.02 or more((y)) or that the THC concentration of the driver's blood is above 0.00; or ((if)) (iii) The driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and Code Rev/AI:crs 46 I-2465.1/11 (d) If the driver's license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver's license. (3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested. (4) Any person who is dead, unconscious, or who is otherwise in a condition rendering him or her incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (1) of this section and the test or tests may be administered, subject to the provisions of RCW 46.61.506, and the person shall be deemed to have received the warnings required under subsection (2) of this section. (5) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section. (6) If, after arrest and after the other applicable conditions and requirements of this section have been satisfied, a test or tests of the person's blood or breath is administered and the test results indicate that the alcohol concentration of the person's breath or blood is 0.08 or more, or the THC concentration of the person's blood is 5.00 or more, if the person is age twenty-one or over, or that the alcohol concentration of the person's breath or blood is 0.02 or more, or the THC concentration of the person's blood is above 0.00, if the person is under the age of twenty-one, or the person refuses to submit to a test, the arresting officer or other law enforcement officer at whose direction any test has been given, or the department, where Code Rev/AI:crs 47 I-2465.1/11 applicable, if the arrest results in a test of the person's blood, shall: (a) Serve notice in writing on the person on behalf of the department of its intention to suspend, revoke, or deny the person's license, permit, or privilege to drive as required by subsection (7) of this section; (b) Serve notice in writing on the person on behalf of the department of his or her right to a hearing, specifying the steps he or she must take to obtain a hearing as provided by subsection (8) of this section and that the person waives the right to a hearing if he or she receives an ignition interlock driver's license; (c) Mark the person's Washington state driver's license or permit to drive, if any, in a manner authorized by the department; (d) Serve notice in writing that the marked license or permit, if any, is a temporary license that is valid for sixty days from the date of arrest or from the date notice has been given in the event notice is given by the department following a blood test, or until the suspension, revocation, or denial of the person's license, permit, or privilege to drive is sustained at a hearing pursuant to subsection (8) of this section, whichever occurs first. No temporary license is valid to any greater degree than the license or permit that it replaces; and (e) Immediately notify the department of the arrest and transmit to the department within seventy-two hours, except as delayed as the result of a blood test, a sworn report or report under a declaration authorized by RCW 9A.72.085 that states: (i) That the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, or was under the age of twenty- one years and had been driving or was in actual physical control of a motor vehicle while having an alcohol or THC concentration in violation of RCW 46.61.503; (ii) That after receipt of the warnings required by subsection (2) of this section the person refused to submit to a test of his or her Code Rev/AI:crs 48 I-2465.1/11 blood or breath, or a test was administered and the results indicated that the alcohol concentration of the person's breath or blood was 0.08 or more, or the THC concentration of the person's blood was 5.00 or more, if the person is age twenty-one or over, or that the alcohol concentration of the person's breath or blood was 0.02 or more, or the THC concentration of the person's blood was above 0.00, if the person is under the age of twenty-one; and (iii) Any other information that the director may require by rule. (7) The department of licensing, upon the receipt of a sworn report or report under a declaration authorized by RCW 9A.72.085 under subsection (6) (e) of this section, shall suspend, revoke, or deny the person's license, permit, or privilege to drive or any nonresident operating privilege, as provided in RCW 46.20.3101, such suspension, revocation, or denial to be effective beginning sixty days from the date of arrest or from the date notice has been given in the event notice is given by the department following a blood test, or when sustained at a hearing pursuant to subsection (8) of this section, whichever occurs first. (8) A person receiving notification under subsection (6) (b) of this section may, within twenty days after the notice has been given, request in writing a formal hearing before the department. The person shall pay a fee of two hundred dollars as part of the request. If the request is mailed, it must be postmarked within twenty days after receipt of the notification. Upon timely receipt of such a request for a formal hearing, including receipt of the required two hundred dollar fee, the department shall afford the person an opportunity for a hearing. The department may waive the required two hundred dollar fee if the person is an indigent as defined in RCW 10.101.010. Except as otherwise provided in this section, the hearing is subject to and shall be scheduled and conducted in accordance with RCW 46.20.329 and 46.20.332. The hearing shall be conducted in the county of the arrest, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means. The hearing shall be held within sixty days following the arrest or following the date notice has been given in the event notice Code Rev/AI:crs 49 I-2465.1/11 is given by the department following a blood test, unless otherwise agreed to by the department and the person, in which case the action by the department shall be stayed, and any valid temporary license marked under subsection (6)(c) of this section extended, if the person is otherwise eligible for licensing. For the purposes of this section, the scope of the hearing shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or had been driving or was in actual physical control of a motor vehicle within this state while having alcohol in his or her system in a concentration of 0.02 or more, or THC in his or her system in a concentration above 0.00, if the person was under the age of twenty-one, whether the person was placed under arrest, and (a) whether the person refused to submit to the test or tests upon request of the officer after having been informed that such refusal would result in the revocation of the person's license, permit, or privilege to drive, or (b) if a test or tests were administered, whether the applicable requirements of this section were satisfied before the administration of the test or tests, whether the person submitted to the test or tests, or whether a test was administered without express consent as permitted under this section, and whether the test or tests indicated that the alcohol concentration of the person's breath or blood was 0.08 or more, or the THC concentration of the person's blood was 5.00 or more, if the person was age twenty-one or over at the time of the arrest, or that the alcohol concentration of the person's breath or blood was 0.02 or more, or the THC concentration of the person's blood was above 0.00, if the person was under the age of twenty-one at the time of the arrest. The sworn report or report under a declaration authorized by RCW 9A.72.085 submitted by a law enforcement officer is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, or the person had been driving or was in actual physical control of a motor Code Rev/AI:crs 50 I-2465.1/11 vehicle within this state while having alcohol in his or her system in a concentration of 0.02 or more, or THC in his or her system in a concentration above 0.00, and was under the age of twenty-one and that the officer complied with the requirements of this section. A hearing officer shall conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses. The hearing officer shall not issue a subpoena for the attendance of a witness at the request of the person unless the request is accompanied by the fee required by RCW 5.56.010 for a witness in district court. The sworn report or report under a declaration authorized by RCW 9A.72.085 of the law enforcement officer and any other evidence accompanying the report shall be admissible without further evidentiary foundation and the certifications authorized by the criminal rules for courts of limited jurisdiction shall be admissible without further evidentiary foundation. The person may be represented by counsel, may question witnesses, may present evidence, and may testify. The department shall order that the suspension, revocation, or denial either be rescinded or sustained. (9) If the suspension, revocation, or denial is sustained after such a hearing, the person whose license, privilege, or permit is suspended, revoked, or denied has the right to file a petition in the superior court of the county of arrest to review the final order of revocation by the department in the same manner as an appeal from a decision of a court of limited jurisdiction. Notice of appeal must be filed within thirty days after the date the final order is served or the right to appeal is waived. Notwithstanding RCW 46.20.334, RALJ 1.1, or other statutes or rules referencing de novo review, the appeal shall be limited to a review of the record of the administrative hearing. The appellant must pay the costs associated with obtaining the record of the hearing before the hearing officer. The filing of the appeal does not stay the effective date of the suspension, revocation, or denial. A petition filed under this subsection must include the petitioner's grounds for requesting review. Upon granting petitioner's request for review, the court shall review the Code Rev/AI:crs 51 I-2465.1/11 department's final order of suspension, revocation, or denial as expeditiously as possible. The review must be limited to a determination of whether the department has committed any errors of law. The superior court shall accept those factual determinations supported by substantial evidence in the record: (a) That were expressly made by the department; or (b) that may reasonably be inferred from the final order of the department. The superior court may reverse, affirm, or modify the decision of the department or remand the case back to the department for further proceedings. The decision of the superior court must be in writing and filed in the clerk's office with the other papers in the case. The court shall state the reasons for the decision. If judicial relief is sought for a stay or other temporary remedy from the department's action, the court shall not grant such relief unless the court finds that the appellant is likely to prevail in the appeal and that without a stay the appellant will suffer irreparable injury. If the court stays the suspension, revocation, or denial it may impose conditions on such stay. (10)(a) If a person whose driver's license, permit, or privilege to drive has been or will be suspended, revoked, or denied under subsection (7) of this section, other than as a result of a breath or blood test refusal, and who has not committed an offense for which he or she was granted a deferred prosecution under chapter 10.05 RCW, petitions a court for a deferred prosecution on criminal charges arising out of the arrest for which action has been or will be taken under subsection (7) of this section, or notifies the department of licensing of the intent to seek such a deferred prosecution, then the license suspension or revocation shall be stayed pending entry of the deferred prosecution. The stay shall not be longer than one hundred fifty days after the date charges are filed, or two years after the date of the arrest, whichever time period is shorter. If the court stays the suspension, revocation, or denial, it may impose conditions on such stay. If the person is otherwise eligible for licensing, the department shall issue a temporary license, or extend any valid temporary license marked under subsection (6) of this section, for the Code Rev/AI:crs 52 I-2465.1/11 period of the stay. If a deferred prosecution treatment plan is not recommended in the report made under RCW 10.05.050, or if treatment is rejected by the court, or if the person declines to accept an offered treatment plan, or if the person violates any condition imposed by the court, then the court shall immediately direct the department to cancel the stay and any temporary marked license or extension of a temporary license issued under this subsection. (b) A suspension, revocation, or denial imposed under this section, other than as a result of a breath or blood test refusal, shall be stayed if the person is accepted for deferred prosecution as provided in chapter 10.05 RCW for the incident upon which the suspension, revocation, or denial is based. If the deferred prosecution is terminated, the stay shall be lifted and the suspension, revocation, or denial reinstated. If the deferred prosecution is completed, the stay shall be lifted and the suspension, revocation, or denial canceled. (c) The provisions of (b) of this subsection relating to a stay of a suspension, revocation, or denial and the cancellation of any suspension, revocation, or denial do not apply to the suspension, revocation, denial, or disqualification of a person's commercial driver's license or privilege to operate a commercial motor vehicle. (11) When it has been finally determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, revoked, or denied, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he or she has a license. Sec. 32. RCW 46.20.3101 and 2004 c 95 s 4 and 2004 c 68 s 3 are each reenacted and amended to read as follows: Pursuant to RCW 46.20.308, the department shall suspend, revoke, or deny the arrested person's license, permit, or privilege to drive as follows: (1) In the case of a person who has refused a test or tests: Code Rev/AI:crs 53 I-2465.1/11 (a) For a first refusal within seven years, where there has not been a previous incident within seven years that resulted in administrative action under this section, revocation or denial for one year; (b) For a second or subsequent refusal within seven years, or for a first refusal where there has been one or more previous incidents within seven years that have resulted in administrative action under this section, revocation or denial for two years or until the person reaches age twenty-one, whichever is longer. (2) In the case of an incident where a person has submitted to or been administered a test or tests indicating that the alcohol concentration of the person's breath or blood was 0.08 or more, or that the THC concentration of the person's blood was 5.00 or more: (a) For a first incident within seven years, where there has not been a previous incident within seven years that resulted in administrative action under this section, suspension for ninety days; (b) For a second or subsequent incident within seven years, revocation or denial for two years. (3) In the case of an incident where a person under age twenty-one has submitted to or been administered a test or tests indicating that the alcohol concentration of the person's breath or blood was 0.02 or more, or that the THC concentration of the person's blood was above 0.00: (a) For a first incident within seven years, suspension or denial for ninety days; (b) For a second or subsequent incident within seven years, revocation or denial for one year or until the person reaches age twenty-one, whichever is longer. (4) The department shall grant credit on a day -for -day basis for any portion of a suspension, revocation, or denial already served under this section for a suspension, revocation, or denial imposed under RCW 46.61.5055 arising out of the same incident. Sec. 33. RCW 46.61.502 and 2011 c 293 s 2 are each amended to read as follows: Code Rev/AI:crs 54 I-2465.1/11 (1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or (((c))) (d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug. (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section. (3)(a) It is an affirmative defense to a violation of subsection (1) (a) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of driving and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant Code Rev/AI:crs 55 I-2465.1/11 notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (4) (a) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1) (a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1) (((b) r)) (c) or (d) of this section. (b) Analyses of blood samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1) (c) or (d) of this section. (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor. (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or (b) The person has ever previously been convicted of: (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b); (iii) An out-of-state offense comparable to the offense specified in (b) (i) or (ii) of this subsection; or (iv) A violation of this subsection (6) or RCW 46.61.504(6). Sec. 34. RCW 46.61.503 and 1998 c 213 s 4, 1998 c 207 s 5, and 1998 c 41 s 8 are each reenacted and amended to read as follows: Code Rev/AI:crs 56 I-2465.1/11 (1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol or marijuana if the person operates or is in physical control of a motor vehicle within this state and the person: (a) Is under the age of twenty-one; and (b) Has, within two hours after operating or being in physical control of the motor vehicle, either: (i) An alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (ii) A THC concentration above 0.00 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person's blood made under RCW 46.61.506. (2) It is an affirmative defense to a violation of subsection (1) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol or marijuana after the time of driving or being in physical control and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol or THC concentration to be in violation of subsection (1) of this section within two hours after driving or being in physical control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the earlier of: (a) Seven days prior to trial; or (b) the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (3) Analyses of blood or breath samples obtained more than two hours after the alleged driving or being in physical control may be used as evidence that within two hours of the alleged driving or being in physical control, a person had an alcohol or THC concentration in violation of subsection (1) of this section. (4) A violation of this section is a misdemeanor. Sec. 35. RCW 46.61.504 and 2011 c 293 s 3 are each amended to read as follows: Code Rev/AI:crs 57 I-2465.1/11 (1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state: (a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor or any drug; or (((c))) (d) While the person is under the combined influence of or affected by intoxicating liquor and any drug. (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway. (3)(a) It is an affirmative defense to a violation of subsection (1) (a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of Code Rev/AI:crs 58 I-2465.1/11 the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (4) (a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)((-0e4- or)) 1)((-0e)-or)) (c) or (d) of this section. (b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1) (c) or (d) of this section. (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor. (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or (b) The person has ever previously been convicted of: (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); Code Rev/AI:crs 59 I-2465.1/11 (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b); (iii) An out-of-state offense comparable to the offense specified in (b) (i) or (ii) of this subsection; or (iv) A violation of this subsection (6) or RCW 46.61.502(6). Sec. 36. RCW 46.61.50571 and 2000 c 52 s 1 are each amended to read as follows: (1) A defendant who is charged with an offense involving driving while under the influence as defined in RCW 46.61.502, driving under age twenty-one after consuming alcohol or marijuana as defined in RCW 46.61.503, or being in physical control of a vehicle while under the influence as defined in RCW 46.61.504, shall be required to appear in person before a judicial officer within one judicial day after the arrest if the defendant is served with a citation or complaint at the time of the arrest. A court may by local court rule waive the requirement for appearance within one judicial day if it provides for the appearance at the earliest practicable day following arrest and establishes the method for identifying that day in the rule. (2) A defendant who is charged with an offense involving driving while under the influence as defined in RCW 46.61.502, driving under age twenty-one after consuming alcohol or marijuana as defined in RCW 46.61.503, or being in physical control of a vehicle while under the influence as defined in RCW 46.61.504, and who is not served with a citation or complaint at the time of the incident, shall appear in court for arraignment in person as soon as practicable, but in no event later than fourteen days after the next day on which court is in session following the issuance of the citation or the filing of the complaint or information. (3) At the time of an appearance required by this section, the court shall determine the necessity of imposing conditions of pretrial release according to the procedures established by court rule for a preliminary appearance or an arraignment. (4) Appearances required by this section are mandatory and may not be waived. Code Rev/AI:crs 60 I-2465.1/11 Sec. 37. RCW 46.61.506 and 2010 c 53 s 1 are each amended to read as follows: (1) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the person's alcohol concentration is less than 0.08 or the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug. (2) (a) The breath analysis of the person's alcohol concentration shall be based upon grams of alcohol per two hundred ten liters of breath. (b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood. (c) The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug. (3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. (4) (a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: (i) The person who performed the test was authorized to perform such test by the state toxicologist; Code Rev/AI:crs 61 I-2465.1/11 (ii) The person being tested did not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; (iii) The person being tested did not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen -minute observation period; (iv) Prior to the start of the test, the temperature of any liquid simulator solution utilized as an external standard, as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade; (v) The internal standard test resulted in the message "verified"; (vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist; (vii) The result of the test of the liquid simulator solution external standard or dry gas external standard result did lie between .072 to .088 inclusive; and (viii) All blank tests gave results of .000. (b) For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department. (c) Nothing in this section shall be deemed to prevent the subject of the test from challenging the reliability or accuracy of the test, the reliability or functioning of the instrument, or any maintenance procedures. Such challenges, however, shall not preclude the admissibility of the test once the prosecution or department has made a prima facie showing of the requirements contained in (a) of this subsection. Instead, such challenges may be considered by the trier of fact in determining what weight to give to the test result. (5) When a blood test is administered under the provisions of RCW 46.20.308, the withdrawal of blood for the purpose of determining its Code Rev/AI:crs 62 I-2465.1/11 alcoholic or drug content may be performed only by a physician, a registered nurse, a licensed practical nurse, a nursing assistant as defined in chapter 18.88A RCW, a physician assistant as defined in chapter 18.71A RCW, a first responder as defined in chapter 18.73 RCW, an emergency medical technician as defined in chapter 18.73 RCW, a health care assistant as defined in chapter 18.135 RCW, or any technician trained in withdrawing blood. This limitation shall not apply to the taking of breath specimens. (6) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. The test will be admissible if the person establishes the general acceptability of the testing technique or method. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. (7) Upon the request of the person who shall submit to a test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or her or his or her attorney. PART VI CONSTRUCTION NEW SECTION. Sec. 38. Sections 4 through 18 of this act are each added to chapter 69.50 RCW under the subchapter heading "article III - - regulation of manufacture, distribution, and dispensing of controlled substances." NEW SECTION. Sec. 39. Section 21 of this act is added to chapter 69.50 RCW under the subchapter heading "article IV -- offenses and penalties." Code Rev/AI:crs 63 I-2465.1/11 NEW SECTION. Sec. 40. Sections 26 through 30 of this act are each added to chapter 69.50 RCW under the subchapter heading "article V -- enforcement and administrative provisions." NEW SECTION. Sec. 41. The code reviser shall prepare a bill for introduction at the next legislative session that corrects references to the sections affected by this act. Code Rev/AI:crs 64 I-2465.1/11 (D) CHAPTER 314-55 WAC, REGULATIONS ADOPTED BY THE WASHINGTON STATE LIQUOR CONTROL BOARD IMPLEMENTING INITIATIVE 502. Chapter 314-55 WAC MARIJUANA LICENSES, APPLICATION PROCESS, REQUIREMENTS, AND REPORTING NEW SECTION WAC 314-55-005 What is the purpose of this chapter? The purpose of this chapter is to outline the application process, qualifications and requirements to obtain and maintain a marijuana license and the reporting requirements for a marijuana licensee. NEW SECTION WAC 314-55-010 Definitions. Following are definitions for the purpose of this chapter. Other definitions are in RCW 69.50.101. (1) "Applicant" or "marijuana license applicant" means any person or business entity who is considered by the board as a true party of interest in a marijuana license, as outlined in WAC 314-55-035. (2) "Batch" means a quantity of marijuana -infused product con- taining material from one or more lots of marijuana. (3) "Business name" or "trade name" means the name of a licensed business as used by the licensee on signs and advertising. (4) "Child care center" means an entity that regularly provides child day care and early learning services for a group of children for periods of less than twenty-four hours licensed by the Washington state department of early learning under chapter 170-295 WAC. (5) "Elementary school" means a school for early education that provides the first four to eight years of basic education and recog- nized by the Washington state superintendent of public instruction. (6) "Financier" means any person or entity, other than a banking institution, that has made or will make an investment in the licensed business. A financier can be a person or entity that provides money as a gift, loans money to the applicant/business and expects to be paid back the amount of the loan with or without interest, or expects any percentage of the profits from the business in exchange for a loan or expertise. (7) "Game arcade" means an entertainment venue featuring primari- ly video games, simulators, and/or other amusement devices where per- sons under twenty-one years of age are not restricted. (8) "Library" means an organized collection of resources made ac- cessible to the public for reference or borrowing supported with money derived from taxation. (9) "Licensee" or "marijuana licensee" means any person or entity that holds a marijuana license, or any person or entity who is a true party of interest in a marijuana license, as outlined in WAC 314-55-035. (10) "Lot" means either of the following: (a) The flowers from one or more marijuana plants of the same strain. A single lot of flowers cannot weigh more than five pounds; or [ 1 ] OTS -5501.3 (b) The trim, leaves, or other plant matter from one or more mar- ijuana plants. A single lot of trim, leaves, or other plant matter cannot weigh more than fifteen pounds. (11) "Marijuana strain" means a pure breed or hybrid variety of Cannabis reflecting similar or identical combinations of properties such as appearance, taste, color, smell, cannabinoid profile, and po- tency. (12) "Member" means a principal or governing person of a given entity, including but not limited to: LLC member/manager, president, vice-president, secretary, treasurer, CEO, director, stockholder, partner, general partner, limited partner. This includes all spouses of all principals or governing persons named in this definition and referenced in WAC 314-55-035. (13) "Pesticide" means, but is not limited to: (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living person or other animal which is normally considered to be a pest; (b) any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and (c) any spray adju- vant. Pesticides include substances commonly referred to as herbi- cides, fungicides, and insecticides. (14) "Perimeter" means a property line that encloses an area. (15) "Plant canopy" means the square footage dedicated to live plant production, such as maintain mother plants, propagating plants from seed to plant tissue, clones, vegetative or flowering area. Plant canopy does not include areas such as space used for the storage of fertilizers, pesticides, or other products, quarantine, office space, etc. (16) "Playground" means a public outdoor recreation area for children, usually equipped with swings, slides, and other playground equipment, owned and/or managed by a city, county, state, or federal government. (17) "Public park" means an area of land for the enjoyment of the public, having facilities for rest and/or recreation, such as a base- ball diamond or basketball court, owned and/or managed by a city, county, state, federal government, or metropolitan park district. Pub- lic park does not include trails. (18) "Public transit center" means a facility located outside of the public right of way that is owned and managed by a transit agency or city, county, state, or federal government for the express purpose of staging people and vehicles where several bus or other transit routes converge. They serve as efficient hubs to allow bus riders from various locations to assemble at a central point to take advantage of express trips or other route to route transfers. (19) "Recreation center or facility" means a supervised center that provides a broad range of activities and events intended primari- ly for use by persons under twenty-one years of age, owned and/or man- aged by a charitable nonprofit organization, city, county, state, or federal government. (20) "Residence" means a person's address where he or she physi- cally resides and maintains his or her abode. (21) "Secondary school" means a high and/or middle school: A school for students who have completed their primary education, usual- ly attended by children in grades seven to twelve and recognized by the Washington state superintendent of public instruction. [ 2 ] OTS -5501.3 (22) "Unit" means an individually packaged marijuana -infused sol- id or liquid product meant to be eaten or swallowed, not to exceed ten servings or one hundred milligrams of active tetrahydrocannabinol (THC), or Delta 9. NEW SECTION WAC 314-55-015 General information about marijuana licenses. (1) A person or entity must meet certain qualifications to receive a mari- juana license, which are continuing qualifications in order to main- tain the license. (2) All applicants and employees working in each licensed estab- lishment must be at least twenty-one years of age. (3) Minors restricted signs must be posted at all marijuana li- censed premises. (4) A marijuana license applicant may not exercise any of the privileges of a marijuana license until the board approves the license application. (5) The board will not approve any marijuana license for a loca- tion where law enforcement access, without notice or cause, is limi- ted. This includes a personal residence. (6) The board will not approve any marijuana license for a loca- tion on federal lands. (7) The board will not approve any marijuana retailer license for a location within another business. More than one license could be lo- cated in the same building if each licensee has their own area separa- ted by full walls with their own entrance. Product may not be commin- gled. (8) Every marijuana licensee must post and keep posted its li- cense, or licenses, and any additional correspondence containing con- ditions and restrictions imposed by the board in a conspicuous place on the premises. (9) In approving a marijuana license, the board reserves the right to impose special conditions as to the involvement in the opera- tions of the licensed business of any former licensees, their former employees, or any person who does not qualify for a marijuana license. (10) A marijuana processor or retailer licensed by the board shall conduct the processing, storage, and sale of marijuana -infused products using sanitary practices and ensure facilities are construc- ted, kept, and maintained in a clean and sanitary condition in accord- ance with rules and as prescribed by the Washington state department of agriculture under chapters 16-165 and 16-167 WAC. (11) Marijuana licensees may not allow the consumption of mari- juana or marijuana -infused products on the licensed premises. NEW SECTION WAC 314-55-020 Marijuana license qualifications and application process. Each marijuana license application is unique and investigated individually. The board may inquire and request documents regarding all matters in connection with the marijuana license application. The [ 3 ] OTS -5501.3 application requirements for a marijuana license include, but are not necessarily limited to, the following: (1) Per RCW 69.50.331, the board shall send a notice to cities and counties, and may send a notice to tribal governments or port au- thorities regarding the marijuana license application. The local au- thority has twenty days to respond with a recommendation to approve or an objection to the applicant, location, or both. (2) The board will verify that the proposed business meets the minimum requirements for the type of marijuana license requested. (3) The board will conduct an investigation of the applicants' criminal history and administrative violation history, per WAC 314-55-040 and 314-55-045. (a) The criminal history background check will consist of comple- tion of a personal/criminal history form provided by the board and submission of fingerprints to a vendor approved by the board. The ap- plicant will be responsible for paying all fees required by the vendor for fingerprinting. These fingerprints will be submitted to the Wash- ington state patrol and the Federal Bureau of Investigation for com- parison to their criminal records. The applicant will be responsible for paying all fees required by the Washington state patrol and the Federal Bureau of Investigation. (b) Financiers will also be subject to criminal history investi- gations equivalent to that of the license applicant. Financiers will also be responsible for paying all fees required for the criminal his- tory check. Financiers must meet the three month residency require- ment (4) The board will conduct a financial investigation in order to verify the source of funds used for the acquisition and startup of the business, the applicants' right to the real and personal property, and to verify the true party(ies) of interest. (5) The board may require a demonstration by the applicant that they are familiar with marijuana laws and rules. (6) The board may conduct a final inspection of the proposed li- censed business, in order to determine if the applicant has complied with all the requirements of the license requested. (7) Per RCW 69.50.331 (1)(b), all applicants applying for a mari- juana license must have resided in the state of Washington for at least three months prior to application for a marijuana license. All partnerships, employee cooperatives, associations, nonprofit corpora- tions, corporations and limited liability companies applying for a marijuana license must be formed in Washington. All members must also meet the three month residency requirement. Managers or agents who manage a licensee's place of business must also meet the three month residency requirement. (8) Submission of an operating plan that demonstrates the appli- cant is qualified to hold the marijuana license applied for to the satisfaction of the board. The operating plan shall include the fol- lowing elements in accordance with the applicable standards in the Washington Administrative Code (WAC). (9) As part of the application process, each applicant must sub- mit in a format supplied by the board an operating plan detailing the following as it pertains to the license type being sought. This oper- ating plan must also include a floor plan or site plan drawn to scale which illustrates the entire operation being proposed. The operating plan must include the following information: [ 4 ] OTS -5501.3 Producer Processor Retailer Security Security Security Traceability Traceability Traceability Employee qualifications and training Employee qualifications and training Employee qualifications and training Transportation of product including packaging of product for transportation Transportation of product Destruction of waste product Destruction of waste product Destruction of waste product Description of growing operation in- clude growing media, size of grow space allocated for plant production, space allocated for any other business activity, description of all equipment used in the production process, and a list of soil amendments, fertilizers, oth- er crop production aids, or pesticides, utilized in the production process Description of the types of products to be processed at this location together with a complete description of all equipment and solvents, gases, chemi- cals and other compounds used to cre- ate extracts and for processing of mar - ijuana-infused products Testing procedures and protocols Testing procedures and protocols Description of the types of products to be processed at this location together with a complete description of pro- cessing of marijuana -infused products Description of packaging and labeling of products to be processed What array of products are to be sold and how are the products to be dis- played to consumers After obtaining a license, the license holder must notify the board in advance of any substantial change in their operating plan. Depending on the degree of change, prior approval may be required be- fore the change is implemented. (10) Applicants applying for a marijuana license must be current in any tax obligations to the Washington state department of revenue, as an individual or as part of any entity in which they have an owner- ship interest. Applicants must sign an attestation that, under penalty of denial or loss of licensure, that representation is correct. (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. (12) Upon failure to respond to the board licensing and regula- tion division's requests for information within the timeline provided, the application may be administratively closed or denial of the appli- cation will be sought. NEW SECTION WAC 314-55-035 What persons or entities have to qualify for a marijuana license? A marijuana license must be issued in the name(s) of the true party(ies) of interest. (1) True parties of interest - For purposes of this title, "true party of interest" means: [ 5 ] OTS -5501.3 True party of interest Persons to be qualified Sole proprietorship Sole proprietor and spouse. General partnership All partners and spouses. Limited partnership, limited liability partner- ship, or limited liability limited partnership • All general partners and their spouses. • All limited partners and spouses. Limited liability compa- ny • All members and their spouses. • All managers and their spouses. Privately held corpora- tion • All corporate officers (or persons with equiva- lent title) and their spouses. • All stockholders and their spouses. Publicly held corpora- tion All corporate officers (or per - sons with equivalent title) and their spouses. All stockholders and their spouses. Multilevel ownership structures All persons and entities that make up the ownership struc- ture (and their spouses). Any entity or person (inclusive of financiers) that are expecting a per- centage of the profits in exchange for a mone- tary loan or expertise. Any entity or person who is in receipt of, or has the right to receive, a percentage of the gross or net profit from the licensed business during any full or partial calendar or fiscal year. Any entity or person who ex- ercises control over the li- censed business in exchange for money or expertise. For the purposes of this chap- ter: • "Gross profit" includes the entire gross receipts from all sales and serv- ices made in, upon, or from the licensed busi- ness. • "Net profit" means gross sales minus cost of goods sold. Nonprofit corporations All individuals and spouses, and entities having member- ship rights in accordance with the provisions of the ar- ticles of incorporation or the bylaws. (2) For purposes of this section, "true party of interest" does not mean: (a) A person or entity receiving reasonable payment for rent on a fixed basis under a bona fide lease or rental obligation, unless the [ 6 ] OTS -5501.3 lessor or property manager exercises control over or participates in the management of the business. (b) A person who receives a bonus as an employee, if: The employ- ee is on a fixed wage or salary and the bonus is not more than twenty- five percent of the employee's prebonus annual compensation; or the bonus is based on a written incentive/bonus program that is not out of the ordinary for the services rendered. (c) A person or entity contracting with the applicant (s) to sell the property, unless the contract holder exercises control over or participates in the management of the licensed business. (3) Financiers - The board will conduct a financial investigation as well as a criminal background of financiers. (4) Persons who exercise control of business - The board will conduct an investigation of any person or entity who exercises any control over the applicant's business operations. This may include both a financial investigation and/or a criminal history background. NEW SECTION WAC 314-55-040 What criminal history might prevent a marijuana license applicant from receiving or keeping a marijuana license? (1) When the board processes a criminal history check on an applicant, it uses a point system to determine if the person qualifies for a li- cense. The board will not normally issue a marijuana license or renew a license to an applicant who has accumulated eight or more points as indicated below: Description Time period during which points will be assigned Points assigned Felony convic- tion Ten years 12 points Gross misde- meanor convic- tion Three years 5 points Misdemeanor conviction Three years 4 points Currently under federal or state supervision for a felony convic- tion n/a 8 points Nondisclosure of any of the above n/a 4 points each (2) If a case is pending for an alleged offense that would earn eight or more points, the board will hold the application for the dis- position of the case. If the disposition is not settled within ninety days, the board will administratively close the application. (3) The board may not issue a marijuana license to anyone who has accumulated eight or more points as referenced above. This is a dis- cretionary threshold and it is further recommended that the following exceptions to this standard be applied: [ 7 ] OTS -5501.3 Exception to criminal history point assignment. This exception to the criminal history point assignment will expire on July 1, 2014: (a) Prior to initial license application, two federal or state misdemeanor convictions for the possession only of marijuana within the previous three years may not be applicable to the criminal history points accumulated. All criminal history must be reported on the per- sonal/criminal history form. (i) Regardless of applicability, failure to disclose full crimi- nal history will result in point accumulation; (ii) State misdemeanor possession convictions accrued after De- cember 6, 2013, exceeding the allowable amounts of marijuana, usable marijuana, and marijuana -infused products described in chapter 69.50 RCW shall count toward criminal history point accumulation. (b) Prior to initial license application, any single state or federal conviction for the growing, possession, or sale of marijuana will be considered for mitigation on an individual basis. Mitigation will be considered based on the quantity of product involved and other circumstances surrounding the conviction. (4) Once licensed, marijuana licensees must report any criminal convictions to the board within fourteen days. NEW SECTION WAC 314-55-045 What marijuana law or rule violation history might prevent an applicant from receiving a marijuana license? The board will conduct an investigation of all applicants' marijuana law or rule administrative violation history. The board will not normally issue a marijuana license to a person, or to an entity with a true party of interest, who has the following violation history; or to any person who has demonstrated a pattern of disregard for laws or rules. NEW SECTION WAC 314-55-050 Reasons the board may seek denial, suspension, or cancellation of a marijuana license application or license. Following is a list of reasons the board may deny, suspend, or cancel a marijua- [ 8 ] OTS -5501.3 Violation Type (see WAC 314-55-515) Period of Consideration • Three or more public safety violations; • Violations issued within three years of the date the applica- tion is received by the board's licensing and regulation division. • Four or more regulato- ry violations; or • One to four, or more license violations. • Violations issued within the last three years the true par- ty(ies) of interest were licensed. NEW SECTION WAC 314-55-050 Reasons the board may seek denial, suspension, or cancellation of a marijuana license application or license. Following is a list of reasons the board may deny, suspend, or cancel a marijua- [ 8 ] OTS -5501.3 na license application or license. Per RCW 66.50.331, the board has broad discretionary authority to approve or deny a marijuana license application for reasons including, but not limited to, the following: (1) Failure to meet qualifications or requirements for the spe- cific marijuana producer, processor, or retail license, as outlined in this chapter and chapter 69.50 RCW. (2) Failure or refusal to submit information or documentation re- quested by the board during the evaluation process. (3) The applicant makes a misrepresentation of fact, or fails to disclose a material fact to the board during the application process or any subsequent investigation after a license has been issued. (4) Failure to meet the criminal history standards outlined in WAC 314-55-040. (5) Failure to meet the marijuana law or rule violation history standards outlined in WAC 314-55-045. (6) The source of funds identified by the applicant to be used for the acquisition, startup and operation of the business is ques- tionable, unverifiable, or determined by the board to be gained in a manner which is in violation by law. (7) Denies the board or its authorized representative access to any place where a licensed activity takes place or fails to produce any book, record or document required by law or board rule. (8) Has been denied or had a marijuana license or medical mari- juana license suspended or canceled in another state or local juris- diction. (9) Where the city, county, tribal government, or port authority has submitted a substantiated objection per the requirements in RCW 69.50.331 (7) and (9) . (10) The board shall not issue a new marijuana license if the proposed licensed business is within one thousand feet of the perime- ter of the grounds of any of the following entities. The distance shall be measured along the most direct route over or across estab- lished public walks, streets, or other public passageway between the proposed building/business location to the perimeter of the grounds of the entities listed below: (a) Elementary or secondary school; (b) Playground; (c) Recreation center or facility; (d) Child care center; (e) Public park; (f) Public transit center; (g) Library; or (h) Any game arcade (where admission is not restricted to persons age twenty-one or older). (11) Has failed to pay taxes or fees required under chapter 69.50 RCW or failed to provide production, processing, inventory, sales and transportation reports to documentation required under this chapter. (12) Failure to submit an attestation that they are current in any tax obligations to the Washington state department of revenue. (13) Has been denied a liquor license or had a liquor license suspended or revoked in this or any other state. (14) The operating plan does not demonstrate, to the satisfaction of the board, the applicant is qualified for a license. (15) Failure to operate in accordance with the board approved op- erating plan. [ 9 ] OTS -5501.3 (16) The board determines the issuance of the license will not be in the best interest of the welfare, health, or safety of the people of the state. NEW SECTION WAC 314-55-070 Process if the board denies a marijuana license application. If the board denies a marijuana license application, the applicants may: (1) Request an administrative hearing per chapter 34.05 RCW, the Administrative Procedure Act. (2) Reapply for the license no sooner than one year from the date on the final order of denial. NEW SECTION WAC 314-55-075 What is a marijuana producer license and what are the requirements and fees related to a marijuana producer license? (1) A marijuana producer license allows the licensee to produce marijuana for sale at wholesale to marijuana processor licensees and to other marijuana producer licensees. Marijuana production must take place within a fully enclosed secure indoor facility or greenhouse with rig- id walls, a roof, and doors. Outdoor production may take place in non- rigid greenhouses, other structures, or an expanse of open or cleared ground fully enclosed by a physical barrier. To obscure public view of the premises, outdoor production must be enclosed by a sight obscure wall or fence at least eight feet high. Outdoor producers must meet security requirements described in WAC 314-55-083. (2) The application fee for a marijuana producer license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (3) The annual fee for issuance and renewal of a marijuana pro- ducer license is one thousand dollars. The board will conduct random criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved ven- dor. The licensee will be responsible for all fees required for the criminal history checks. (4) The board will initially limit the opportunity to apply for a marijuana producer license to a thirty -day calendar window beginning with the effective date of this section. In order for a marijuana pro- ducer application license to be considered it must be received no lat- er than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana producer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. (5) Any entity and/or principals within any entity are limited to no more than three marijuana producer licenses. (6) The maximum amount of space for marijuana production is limi- ted to two million square feet. Applicants must designate on their op- erating plan the size category of the production premises and the [ 10 ] OTS -5501.3 amount of actual square footage in their premises that will be desig- nated as plant canopy. There are three categories as follows: (a) Tier 1 - Less than two thousand square feet; (b) Tier 2 - Two thousand square feet to ten thousand square feet; and (c) Tier 3 - Ten thousand square feet to thirty thousand square feet. (7) The board may reduce a licensee's or applicant's square foot- age designated to plant canopy for the following reasons: (a) If the amount of square feet of production of all licensees exceeds the maximum of two million square feet the board will reduce the allowed square footage by the same percentage. (b) If fifty percent production space used for plant canopy in the licensee's operating plan is not met by the end of the first year of operation the board may reduce the tier of licensure. (8) If the total amount of square feet of marijuana production exceeds two million square feet, the board reserves the right to re- duce all licensee's production by the same percentage or reduce licen- see production by one or more tiers by the same percentage. (9) The maximum allowed amount of marijuana on a producer's prem- ises at any time is as follows: (a) Outdoor or greenhouse grows - One and one-quarter of a year's harvest; or (b) Indoor grows - Six months of their annual harvest. NEW SECTION WAC 314-55-077 What is a marijuana processor license and what are the requirements and fees related to a marijuana processor license? (1) A marijuana processor license allows the licensee to process, package, and label usable marijuana and marijuana -infused products for sale at wholesale to marijuana retailers. (2) A marijuana processor is allowed to blend tested useable mar- ijuana from multiple lots into a single package for sale to a marijua- na retail licensee providing the label requirements for each lot used in the blend are met and the percentage by weight of each lot is also included on the label. (3) The application fee for a marijuana processor license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (4) The annual fee for issuance and renewal of a marijuana pro- cessor license is one thousand dollars. The board will conduct random criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved ven- dor. The licensee will be responsible for all fees required for the criminal history checks. (5) The board will initially limit the opportunity to apply for a marijuana processor license to a thirty -day calendar window beginning with the effective date of this section. In order for a marijuana pro- cessor application license to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana processor application window after the initial evaluation of the applications that are re- [ 11 ] OTS -5501.3 ceived and processed, and at subsequent times when the board deems necessary. (6) Any entity and/or principals within any entity are limited to no more than three marijuana processor licenses. (7) Marijuana processor licensees are allowed to have a maximum of six months of their average useable marijuana and six months aver- age of their total production on their licensed premises at any time. NEW SECTION WAC 314-55-079 What is a marijuana retailer license and what are the requirements and fees related to a marijuana retailer license? (1) A marijuana retailer license allows the licensee to sell only usable marijuana, marijuana -infused products, and marijuana paraphernalia at retail in retail outlets to persons twenty-one years of age and older. (2) Marijuana extracts, such as hash, hash oil, shatter, and wax can be infused in products sold in a marijuana retail store, but RCW 69.50.354 does not allow the sale of extracts that are not infused in products. A marijuana extract does not meet the definition of a mari- juana -infused product per RCW 69.50.101. (3) Internet sales and delivery of product is prohibited. (4) The application fee for a marijuana retailer's license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (5) The annual fee for issuance and renewal of a marijuana re- tailer's license is one thousand dollars. The board will conduct ran- dom criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved vendor. The licensee will be responsible for all fees required for the criminal history checks. (6) Marijuana retailers may not sell marijuana products below their acquisition cost. (7) Marijuana retailer licensees are allowed to have a maximum of four months of their average inventory on their licensed premises at any given time. NEW SECTION WAC 314-55-081 Who can apply for a marijuana retailer license? (1) Using estimated consumption data and population data obtained from the office of financial management (OFM) population data, the liquor control board will determine the maximum number of marijuana retail locations per county. The number of retail locations will be determined using a method that distributes the number of locations proportionate to the most populous cities within each county. Locations not assigned to a spe- cific city will be at large. At large locations can be used for unin- corporated areas in the county or in cities within the county that have no retail licenses designated. Once the number of locations per city and at large have been identified, the eligible applicants will be selected by lottery in the event the number of applications exceeds [ 12 ] OTS -5501.3 the allotted amount for the cities and county. Any lottery conducted by the board will be witnessed by an independent third party. (2) The number of marijuana retail licenses determined by the board can be found on the liquor control board web site at www.liq.wa.gov. (3) Any entity and/or principals within any entity are limited to no more than three retail marijuana licenses with no multiple location licensee allowed more than thirty-three percent of the allowed licen- ses in any county or city. (4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty -day calendar window beginning with the effective date of this section. In order for a marijuana re- tailer license application to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana retailer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. NEW SECTION WAC 314-55-082 Insurance requirements. Marijuana licensees shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the consumer should there be any claims, suits, actions, costs, damages or expenses arising from any negligent or intentional act or omission of the marijuana licensees. Marijuana licensees shall furnish evidence in the form of a certifi- cate of insurance satisfactory to the board that insurance, in the following kinds and minimum amounts, has been secured. Failure to pro- vide proof of insurance, as required, may result in license cancella- tion. (1) Commercial general liability insurance: The licensee shall at all times carry and maintain commercial general liability insurance and if necessary, commercial umbrella insurance for bodily injury and property damage arising out of licensed activities. This insurance shall cover such claims as may be caused by any act, omission, or neg- ligence of the licensee or its officers, agents, representatives, as- signs, or servants. The insurance shall also cover bodily injury, in- cluding disease, illness and death, and property damage arising out of the licensee's premises/operations, products, and personal injury. The limits of liability insurance shall not be less than one million dol- lars. (2) Insurance carrier rating: The insurance required in subsec- tion (1) of this section shall be issued by an insurance company au- thorized to do business within the state of Washington. Insurance is to be placed with a carrier that has a rating of A - Class VII or bet- ter in the most recently published edition of Best's Reports. If an insurer is not admitted, all insurance policies and procedures for is- suing the insurance policies must comply with chapters 48.15 RCW and 284-15 WAC. (3) Additional insured. The board shall be named as an additional insured on all general liability, umbrella, and excess insurance poli- cies. All policies shall be primary over any other valid and collecta- ble insurance. [ 13 ] OTS -5501.3 NEW SECTION WAC 314-55-083 What are the security requirements for a marijuana licensee? The security requirements for a marijuana licensee are as follows: (1) Display of identification badge. All employees on the li- censed premises shall be required to hold and properly display an identification badge issued by the licensed employer at all times while on the licensed premises. (2) Alarm systems. At a minimum, each licensed premises must have a security alarm system on all perimeter entry points and perimeter windows. Motion detectors, pressure switches, duress, panic, and hold- up alarms may also be utilized. (3) Surveillance system. At a minimum, a complete video surveil- lance with minimum camera resolution of 640x470 pixel and must be In- ternet protocol (IP) compatible and recording system for controlled areas within the licensed premises and entire perimeter fencing and gates enclosing an outdoor grow operation, to ensure control of the area. The requirements include image acquisition, video recording, management and monitoring hardware and support systems. All recorded images must clearly and accurately display the time and date. Time is to be measured in accordance with the U.S. National Institute Stand- ards and Technology standards. (a) All controlled access areas, security rooms/areas and all points of ingress/egress to limited access areas, all points of in- gress/egress to the exterior of the licensed premises, and all point- of-sale (POS) areas must have fixed camera coverage capable of identi- fying activity occurring within a minimum of twenty feet of all entry and exit points. (b) Camera placement shall allow for the clear and certain iden- tification of any individual on the licensed premises. (c) All entrances and exits to the facility shall be recorded from both indoor and outdoor vantage points, and capable of clearly identifying any activities occurring within the facility or within the grow rooms in low light conditions. The surveillance system storage device must be secured on-site in a lock box, cabinet, closet, or se- cured in another manner to protect from employee tampering or criminal theft. (d) All perimeter fencing and gates enclosing an outdoor grow op- eration must have full video surveillance capable of clearly identify- ing any activities occurring within twenty feet of the exterior of the perimeter. Any gate or other entry point that is part of the enclosure for an outdoor growing operation must have fixed camera coverage capa- ble of identifying activity occurring within a minimum of twenty feet of the exterior, twenty-four hours a day. A motion detection lighting system may be employed to illuminate the gate area in low light condi- tions. (e) Areas where marijuana is grown, cured or manufactured includ- ing destroying waste, shall have a camera placement in the room facing the primary entry door, and in adequate fixed positions, at a height which will provide a clear, unobstructed view of the regular activity without a sight blockage from lighting hoods, fixtures, or other equipment, allowing for the clear and certain identification of per- sons and activities at all times. (f) All marijuana or marijuana -infused products that are intended to be removed or transported from marijuana producer to marijuana pro- [ 14 ] OTS -5501.3 cessor and/or marijuana processor to marijuana retailer shall be stag- ed in an area known as the "quarantine" location for a minimum of twenty-four hours. Transport manifest with product information and weights must be affixed to the product. At no time during the quaran- tine period can the product be handled or moved under any circumstan- ces and is subject to auditing by the liquor control board or design- ees. (g) All camera recordings must be continuously recorded twenty- four hours a day. All surveillance recordings must be kept for a mini- mum of forty-five days on the licensee's recording device. All videos are subject to inspection by any liquor control board employee or law enforcement officer, and must be copied and provided to the board or law enforcement officer upon request. (4) Traceability: To prevent diversion and to promote public safety, marijuana licensees must track marijuana from seed to sale. Licensees must provide the required information on a system specified by the board. All costs related to the reporting requirements are borne by the licensee. Marijuana seedlings, clones, plants, lots of usable marijuana or trim, leaves, and other plant matter, batches of extracts and marijuana -infused products must be traceable from produc- tion through processing, and finally into the retail environment in- cluding being able to identify which lot was used as base material to create each batch of extracts or infused products. The following in- formation is required and must be kept completely up-to-date in a sys- tem specified by the board: (a) Key notification of "events," such as when a plant enters the system (moved from the seedling or clone area to the vegetation pro- duction area at a young age); (b) When plants are to be partially or fully harvested or de- stroyed; (c) When a lot or batch of marijuana -infused product is to be de- stroyed; (d) When usable marijuana or marijuana -infused products are transported; (e) Any theft of marijuana seedlings, clones, plants, trim or other plant material, extract, infused product, or other item contain- ing marijuana; (f) There is a seventy-two hour mandatory waiting period after the notification described in this subsection is given before any plant may be destroyed or a lot or batch of marijuana or marijuana -in- fused product may be destroyed; (g) There is a twenty-four hour mandatory waiting period after the notification described in this subsection to allow for inspection before a lot of marijuana is transported from a producer to a process- or; (h) There is a twenty-four hour mandatory waiting period after the notification described in this subsection to allow for inspection before useable marijuana, or marijuana -infused products are transpor- ted from a processor to a retailer. (i) Prior to reaching eight inches in height or width, each mari- juana plant must be tagged and tracked individually, which typically should happened when a plant is moved from the seed germination or clone area to the vegetation production area; (j) A complete inventory of all marijuana seedlings, clones, all plants, lots of usable marijuana or trim, leaves, and other plant mat- ter, batches of extract and marijuana -infused products; (k) All point of sale records; [ 15 ] OTS -5501.3 (1) Marijuana excise tax records; (m) All samples sent to an independent testing lab and the quali- ty assurance test results; (n) All free samples provided to another licensee for purposes of negotiating a sale; (o) All samples used for testing for quality by the producer or processor; (p) Samples containing usable marijuana provided to retailers; (q) Samples provided to the board or their designee for quality assurance compliance checks; and (r) Other information specified by the board. (5) Start-up inventory for marijuana producers. Within fifteen days of starting production operations a producer must have all non- flowering marijuana plants physically on the licensed premises. The producer must immediately record each marijuana plant that enters the facility in the traceability system during this fifteen day time frame. No flowering marijuana plants may be brought into the facility during this fifteen day time frame. After this fifteen day time frame expires, a producer may only start plants from seed or create clones from a marijuana plant located physically on their licensed premises, or purchase marijuana seeds, clones, or plants from another licensed producer. (6) Samples. Free samples of usable marijuana may be provided by producers or processors, or used for product quality testing, as set forth in this section. (a) Samples are limited to two grams and a producer may not pro- vide any one licensed processor more than four grams of usable mari- juana per month free of charge for the purpose of negotiating a sale. The producer must record the amount of each sample and the processor receiving the sample in the traceability system. (b) Samples are limited to two grams and a processor may not pro- vide any one licensed retailer more than four grams of usable marijua- na per month free of charge for the purpose of negotiating a sale. The processor must record the amount of each sample and the retailer re- ceiving the sample in the traceability system. (c) Samples are limited to two units and a processor may not pro- vide any one licensed retailer more than six ounces of marijuana in- fused in solid form per month free of charge for the purpose of nego- tiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (d) Samples are limited to two units and a processor may not pro- vide any one licensed retailer more than twenty-four ounces of mari- juana -infused liquid per month free of charge for the purpose of nego- tiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (e) Samples are limited to one-half gram and a processor may not provide any one licensed retailer more than one gram of marijuana -in- fused extract meant for inhalation per month free of charge for the purpose of negotiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (f) Producers may sample one gram of useable marijuana per strain, per month for quality sampling. Sampling for quality may not take place at a licensed premises. Only the producer or employees of the licensee may sample the useable marijuana for quality. The produc- er must record the amount of each sample and the employee(s) conduct- ing the sampling in the traceability system. [ 16 ] OTS -5501.3 (g) Processors may sample one unit, per batch of a new edible marijuana -infused product to be offered for sale on the market. Sam- pling for quality may not take place at a licensed premises. Only the processor or employees of the licensee may sample the edible marijua- na -infused product. The processor must record the amount of each sam- ple and the employee(s) conducting the sampling in the traceability system. (h) Processors may sample up to one quarter gram, per batch of a new marijuana -infused extract for inhalation to be offered for sale on the market. Sampling for quality may not take place at a licensed premises. Only the processor or employee(s) of the licensee may sample the marijuana -infused extract for inhalation. The processor must re- cord the amount of each sample and the employee(s) conducting the sam- pling in the traceability system. (i) The limits described in subsection (3) of this section do not apply to the usable marijuana in sample jars that may be provided to retailers described in WAC 314-55-105(8). (j) Retailers may not provide free samples to customers. NEW SECTION WAC 314-55-084 Production of marijuana. Only the following speci- fied soil amendments, fertilizers, other crop production aids, and pesticides may be used in the production of marijuana: (1) Materials listed or registered by the Washington state de- partment of agriculture (WSDA) or Organic Materials Review Institute (OMRI) as allowable for use in organic production, processing, and handling under the U.S. Department of Agriculture's national organics standards, also called the National Organic Program (NOP), consistent with requirements at 7 C.F.R. Part 205. (2) Pesticides registered by WSDA under chapter 15.58 RCW as al- lowed for use in the production, processing, and handling of marijua- na. Pesticides must be used consistent with the label requirements. (3) Commercial fertilizers registered by WSDA under chapter 15.54 RCW. (4) Potting soil and other growing media available commercially in the state of Washington may be used in marijuana production. Pro- ducers growing outdoors are not required to meet land eligibility re- quirements outlined in 7 C.F.R. Part 205.202. NEW SECTION WAC 314-55-085 What are the transportation requirements for a marijuana licensee? (1) Notification of shipment. Upon transporting any marijuana or marijuana product, a producer, processor or retailer shall notify the board of the type and amount and/or weight of mari- juana and/or marijuana products being transported, the name of trans- porter, times of departure and expected delivery. This information must be reported in the traceability system described in WAC 314-55-083 (4) . [ 17 ] OTS -5501.3 (2) Receipt of shipment. Upon receiving the shipment, the licen- see receiving the product shall report the amount and/or weight of marijuana and/or marijuana products received in the traceability sys- tem. (3) Transportation manifest. A complete transport manifest con- taining all information required by the board must be kept with the product at all times. (4) Records of transportation. Records of all transportation must be kept for a minimum of three years at the licensee's location. (5) Transportation of product. Marijuana or marijuana products that are being transported must meet the following requirements: (a) Only the marijuana licensee or an employee of the licensee may transport product; (b) Marijuana or marijuana products must be in a sealed package or container approved by the board pursuant to WAC 314-55-105; (c) Sealed packages or containers cannot be opened during trans- port; (d) Marijuana or marijuana products must be in a locked, safe and secure storage compartment that is secured to the inside body/compart- ment of the vehicle transporting the marijuana or marijuana products; (e) Any vehicle transporting marijuana or marijuana products must travel directly from the shipping licensee to the receiving licensee and must not make any unnecessary stops in between except to other fa- cilities receiving product. NEW SECTION WAC 314-55-086 What are the mandatory signs a marijuana licensee must post on a licensed premises? (1) Notices regarding persons under twenty-one years of age must be conspicuously posted on the premises as follows: Type of licensee Sign must contain the following language: Required location of sign Marijuana produc- er, marijuana pro- cessor, and mari- juana retailer "Persons under twenty- one years of age not permitted on these premises." Conspicuous loca- tion at each entry to premises. The board will provide the required notices, or licensees may design their own notices as long as they are legible and contain the required language. (2) Signs provided by the board prohibiting opening a package of marijuana or marijuana -infused product in public or consumption of marijuana or marijuana -infused products in public, must be posted as follows: Type of premises Required location of sign Marijuana retail Posted in plain view at the main entrance to the establishment. (3) The premises' current and valid master license with appropri- ate endorsements must be conspicuously posted on the premises and available for inspection by liquor enforcement officers. [ 18 ] OTS -5501.3 NEW SECTION WAC 314-55-087 What are the recordkeeping requirements for mari- juana licensees? (1) Marijuana licensees are responsible to keep re- cords that clearly reflect all financial transactions and the finan- cial condition of the business. The following records must be kept and maintained on the licensed premises for a three-year period and must be made available for inspection if requested by an employee of the liquor control board: (a) Purchase invoices and supporting documents, to include the items and/or services purchased, from whom the items were purchased, and the date of purchase; (b) Bank statements and canceled checks for any accounts relating to the licensed business; (c) Accounting and tax records related to the licensed business and each true party of interest; (d) Records of all financial transactions related to the licensed business, including contracts and/or agreements for services performed or received that relate to the licensed business; (e) All employee records, to include training; (f) Records of each daily application of pesticides applied to the marijuana plants or growing medium. For each application, the pro- ducer shall record the following information on the same day the ap- plication is made: (i) Full name of each employee who applied the pesticide; (ii) The date the pesticide was applied; (iii) The name of the pesticide or product name listed on the registration label which was applied; (iv) The concentration and total amount of pesticide per plant; and (v) For outdoor production, the concentration of pesticide that was applied to the field. Liquor applications may be recorded as, but are not limited to, amount of product per one hundred gallons of liq- uor spray, gallons per acre of output volume, ppm, percent product in tank mix (e.g., one percent). For chemigation applications, record "inches of water applied" or other appropriate measure. (g) Soil amendment, fertilizers, or other crop production aids applied to the growing medium or used in the process of growing mari- juana; (h) Production and processing records, including harvest and cur- ing, weighing, destruction of marijuana, creating batches of marijua- na -infused products and packaging into lots and units; (i) Records of each batch of extracts or infused marijuana prod- ucts made, including at a minimum, the lots of usable marijuana or trim, leaves, and other plant matter used (including the total weight of the base product used), any solvents or other compounds utilized, and the product type and the total weight of the end product produced, such as hash oil, shatter, tincture, infused dairy butter, etc.; (j) Transportation records as described in WAC 314-55-085; (k) Inventory records; (1) All samples sent to an independent testing lab and the quali- ty assurance test results; (m) All free samples provided to another licensee for purposes of negotiating a sale; (n) All samples used for testing for quality by the producer or processor; [ 19 ] OTS -5501.3 (o) Sample jars containing usable marijuana provided to retail- ers; and (p) Records of any theft of marijuana seedlings, clones, plants, trim or other plant material, extract, marijuana -infused product, or other item containing marijuana. (2) If the marijuana licensee keeps records within an automated data processing (ADP) and/or point-of-sale (POS) system, the system must include a method for producing legible records that will provide the same information required of that type of record within this sec- tion. The ADP and/or POS system is acceptable if it complies with the following guidelines: (a) Provides an audit trail so that details (invoices and vouch- ers) underlying the summary accounting data may be identified and made available upon request. (b) Provides the opportunity to trace any transaction back to the original source or forward to a final total. If printouts of transac- tions are not made when they are processed, the system must have the ability to reconstruct these transactions. (c) Has available a full description of the ADP and/or POS por- tion of the accounting system. This should show the applications being performed, the procedures employed in each application, and the con- trols used to ensure accurate and reliable processing. (3) The provisions contained in subsections (1) and (2) of this section do not eliminate the requirement to maintain source documents, but they do allow the source documents to be maintained in some other location. NEW SECTION WAC 314-55-089 What are the tax and reporting requirements for marijuana licensees? (1) Marijuana licensees must submit monthly re- port(s) and payments to the board. The required monthly reports must be: (a) On a form or electronic system designated by the board; (b) Filed every month, including months with no activity or pay- ment due; (c) Submitted, with payment due, to the board on or before the twentieth day of each month, for the previous month. (For example, a report listing transactions for the month of January is due by Febru- ary 20th.) When the twentieth day of the month falls on a Saturday, Sunday, or a legal holiday, the filing must be postmarked by the U.S. Postal Service no later than the next postal business day; (d) Filed separately for each marijuana license held; and (e) All records must be maintained and available for review for a three-year period on licensed premises (see WAC 314-55-087). (2) Marijuana producer licensees: On a monthly basis, marijuana producers must maintain records and report purchases from other li- censed marijuana producers, current production and inventory on hand, sales by product type, and lost and destroyed product in a manner pre- scribed by the board. A marijuana producer licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each whole- sale sale to a licensed marijuana processor. [ 20 ] OTS -5501.3 (3) Marijuana processor licensees: On a monthly basis, marijuana processors must maintain records and report purchases from licensed marijuana producers, production of marijuana -infused products, sales by product type to marijuana retailers, and lost and/or destroyed product in a manner prescribed by the board. A marijuana processor licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each whole- sale sale of usable marijuana and marijuana -infused product to a li- censed marijuana retailer. (4) Marijuana retailer's licensees: On a monthly basis, marijuana retailers must maintain records and report purchases from licensed marijuana processors, sales by product type to consumers, and lost and/or destroyed product in a manner prescribed by the board. A marijuana retailer licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each retail sale of usable marijuana or marijuana -infused products. NEW SECTION WAC 314-55-092 What if a marijuana licensee fails to report or pay, or reports or pays late? (1) If a marijuana licensee does not submit its monthly reports and payment(s) to the board as required in WAC 314-55-089: The licensee is subject to penalties. Penalties: A penalty of two percent per month will be assessed on any payments postmarked after the twentieth day of the month following the month of sale. When the twentieth day of the month falls on a Sat- urday, Sunday, or a legal holiday, the filing must be postmarked by the U.S. Postal Service no later than the next postal business day. (2) Failure to make a report and/or pay the license taxes and/or penalties in the manner and dates outlined in WAC 314-55-089 will be sufficient grounds for the board to suspend or revoke a marijuana li- cense. NEW SECTION WAC 314-55-095 Marijuana servings and transaction limitations. Marijuana dosage and transaction limitations are as follows: (1) Single serving. A single serving of a marijuana -infused prod- uct amounts to ten milligrams active tetrahydrocannabinol (THC), or Delta 9. (2) Maximum number of servings. The maximum number of servings in any one single unit of marijuana -infused product meant to be eaten or swallowed is ten servings or one hundred milligrams of active THC, or Delta 9. A single unit of marijuana -infused extract for inhalation cannot exceed one gram. (3) Transaction limitation. A single transaction is limited to one ounce of usable marijuana, sixteen ounces of marijuana -infused product in solid form, seven grams of marijuana -infused extract for inhalation, and seventy-two ounces of marijuana -infused product in liquid form for persons twenty-one years of age and older. [ 21 ] OTS -5501.3 NEW SECTION WAC 314-55-097 Marijuana waste disposal—Liquids and solids. (1) Solid and liquid wastes generated during marijuana production and pro- cessing must be stored, managed, and disposed of in accordance with applicable state and local laws and regulations. (2) Wastewater generated during marijuana production and process- ing must be disposed of in compliance with applicable state and local laws and regulations. (3) Wastes from the production and processing of marijuana plants must be evaluated against the state's dangerous waste regulations (chapter 173-303 WAC) to determine if those wastes designate as dan- gerous waste. It is the responsibility of each waste generator to properly evaluate their waste to determine if it designates as a dan- gerous waste. If a generator's waste does designate as a dangerous waste, then that waste(s) is subject to the applicable management standards found in chapter 173-303 WAC. (a) Wastes that must be evaluated against the dangerous waste regulations include, but are not limited to, the following: (i) Waste from marijuana flowers, trim and solid plant material used to create an extract (per WAC 315-55-104). (ii) Waste solvents used in the marijuana process (per WAC 315-55-104). (iii) Discarded plant waste, spent solvents and laboratory wastes from any marijuana processing or quality assurance testing. (iv) Marijuana extract that fails to meet quality testing. (b) Marijuana wastes that do not designate as dangerous shall be managed in accordance with subsection (4) of this section. (c) A marijuana plant, usable marijuana, trim and other plant ma- terial in itself is not considered dangerous waste as defined under chapter 173-303 WAC unless it has been treated or contaminated with a solvent. (4) Marijuana waste that does not designate as dangerous waste (per subsection (3) of this section) must be rendered unusable follow- ing the methods in subsection (5) of this section prior to leaving a licensed producer, processor, retail facility, or laboratory. Disposal of the marijuana waste rendered unusable must follow the methods under subsection (6) of this section. (a) Wastes that must be rendered unusable prior to disposal in- clude, but are not limited to, the following: (i) Waste evaluated per subsection (3) of this section and deter- mined to not designate as "Dangerous Waste." (ii) Marijuana plant waste, including roots, stalks, leaves, and stems that have not been processed with solvent. (iii) Solid marijuana sample plant waste possessed by third -party laboratories accredited by the board to test for quality assurance that must be disposed of. (iv) Other wastes as determined by the LCB. (b) A producer or processor must provide the board a minimum of seventy-two hours notice in the traceability system described in WAC 314-55-083(4) prior to rendering the product unusable and disposing of it (5) The allowable method to render marijuana plant waste unusable is by grinding and incorporating the marijuana plant waste with other ground materials so the resulting mixture is at least fifty percent [ 22 ] OTS -5501.3 nonmarijuana waste by volume. Other methods to render marijuana waste unusable must be approved by LCB before implementation. Material used to grind with the marijuana falls into two catego- ries: Compostable waste and noncompostable waste. (a) Compostable mixed waste: Marijuana waste to be disposed as compost feedstock or in another organic waste method (for example, anaerobic digester) may be mixed with the following types of waste ma- terials: (i) Food waste; (ii) Yard waste; (iii) Vegetable based grease or oils; or (iv) Other wastes as approved by the LCB. (b) Noncompostable mixed waste: Marijuana waste to be disposed in a landfill or another disposal method (for example, incinerator) may be mixed with the following types of waste materials: (i) Paper waste; (ii) Cardboard waste; (iii) Plastic waste; (iv) Soil; or (v) Other wastes as approved by the LCB. (6) Marijuana wastes rendered unusable following the method de- scribed in subsection (4) of this section can be disposed. (a) Disposal of the marijuana waste rendered unusable may be de- livered to a permitted solid waste facility for final disposition. Ex- amples of acceptable permitted solid waste facilities include: (i) Compostable mixed waste: Compost, anaerobic digester, or oth- er facility with approval of the jurisdictional health department. (ii) Noncompostable mixed waste: Landfill, incinerator, or other facility with approval of the jurisdictional health department. (b) Disposal of the marijuana waste rendered unusable may be man- aged on-site by the generator in accordance with the standards of chapter 173-350 WAC. (c) A record of the final destination of marijuana waste rendered unusable. NEW SECTION WAC 314-55-099 Standardized scales. (1) Marijuana producer and processor licensees must have at least one scale on the licensed prem- ises for the traceability and inventory of products. (2) The scales and other measuring devices are subject to chapter 19.94 RCW, and must meet the requirements of the most current version of chapters 16-662 and 16-664 WAC. (3) Licensees must register scales on a business license applica- tion with business license services through the department of revenue as required under chapter 19.94 RCW. NEW SECTION WAC 314-55-102 Quality assurance testing. (1) A person with fi- nancial interest in an accredited third -party testing lab may not have [ 23 ] OTS -5501.3 direct or indirect financial interest in a licensed marijuana producer or processor for whom they are conducting required quality assurance tests. (2) As a condition of accreditation, each lab must employ a sci- entific director responsible to ensure the achievement and maintenance of quality standards of practice. The scientific director shall meet the following minimum qualifications: (a) Has earned, from a college or university accredited by a na- tional or regional certifying authority a doctorate in the chemical or biological sciences and a minimum of two years' post -degree laboratory experience; or (b) Has earned a master's degree in the chemical or biological sciences and has a minimum of four years' of post -degree laboratory experience; or (c) Has earned a bachelor's degree in the chemical or biological sciences and has a minimum of six years of post -education laboratory experience. (3) As a condition of accreditation, labs must follow the most current version of the Cannabis Inflorescence and Leaf monograph pub- lished by the American Herbal Pharmacopoeia or notify the board what alternative scientifically valid testing methodology the lab is fol- lowing for each quality assurance test. The board may require third - party validation of any monograph or analytical method followed by the lab to ensure the methodology produces scientifically accurate results prior to them using those standards when conducting required quality assurance tests. (4) As a condition of accreditation, the board may require third - party validation and ongoing monitoring of a lab's basic proficiency to correctly execute the analytical methodologies employed by the lab. (5) Labs must adopt and follow minimum good lab practices (GLPs), and maintain internal standard operating procedures (SOPS), and a quality control/quality assurance (QC/QA) program as specified by the board. The board or authorized third -party organization can conduct audits of a lab's GLPs, SOPs, QC/QA, and inspect all other related re- cords. (6) The general body of required quality assurance tests for mar- ijuana flowers, infused products, and extracts may include moisture content, potency analysis, foreign matter inspection, microbiological screening, pesticide and other chemical residue and metals screening, and residual solvents levels. (7) Table of required quality assurance tests. Product Test(s) Required Sample Size Needed to Complete all Tests Flowers to be sold as usable marijuana (see note below) 1. Moisture content 2. Potency analysis 3. Foreign matter inspection 4. Microbiological screening Up to 7 grams Flowers to be used to make an extract (nonsol- vent) like kief, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources None None Extract (nonsolvent) like kief, hashish, bubble hash or infused dairy butter, or oils or fats de- rived from natural sources 1. Potency analysis 2. Foreign matter inspection 3. Microbiological screening Up to 7 grams Flowers to be used to make an extract (solvent based), made with a CO2 extractor, or with a food grade ethanol or glycerin 1. Foreign matter inspection 2. Microbiological screening Up to 7 grams [ 24 ] OTS -5501.3 Product Test(s) Required Sample Size Needed to Complete all Tests Extract (solvent based) made using n -butane, isobutane, propane, heptane, or other solvents or gases approved by the board of at least 99% pu- rity 1. Potency analysis 2. Residual solvent test 3. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with a CO2 extractor like hash oil 1. Potency analysis 2. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with food grade ethanol 1. Potency analysis 2. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with food grade glycerin or propy- lene glycol 1. Potency analysis Up to 1 gram Infused edible 1. Potency analysis 2. Microbiological screening 1 unit Infused liquid like a soda or tonic 1. Potency analysis 2. Microbiological screening 1 unit Infused topical 1. Potency analysis 1 unit (8) Independent testing labs may request additional sample mate- rial in excess of amounts listed in the table in subsection (7) of this section for the purposes of completing required quality assurance tests. Labs meeting the board's accreditation requirements may re- trieve samples from a marijuana licensee's licensed premises and transport the samples directly to the lab. (9) Labs meeting the board's accreditation requirements are not limited in the amount of useable marijuana and marijuana products they may have on their premises at any given time, but they must have re- cords to prove all marijuana and marijuana -infused products only for the testing purposes described in WAC 314-55-102. (10) At the discretion of the board, a producer or processor must provide an employee of the board or their designee samples in the amount listed in subsection (7) of this section for random compliance checks. Samples may be screened for pesticides and chemical residues, unsafe levels of metals, and used for other quality assurance tests deemed necessary by the board. All costs of this testing will be borne by the producer or processor. (11) No lot of usable flower or batch of marijuana -infused prod- uct may be sold or transported until the completion of all required quality assurance testing. (12) Any useable marijuana or marijuana -infused product that passed the required quality assurance tests may be labeled as "Class A." Only "Class A" useable marijuana or marijuana -infused product will be allowed to be sold. (13) If a lot of marijuana flowers fail a quality assurance test, any marijuana plant trim, leaf and other usable material from the same plants automatically fails quality assurance testing also. Upon appro- val of the board, a lot that fails a quality assurance test may be used to make a CO2 or solvent based extract. After processing, the CO2 or solvent based extract must still pass all required quality assur- ance tests in WAC 314-55-102. (14) At the request of the producer or processor, the board may authorize a retest to validate a failed test result on a case-by-case basis. All costs of the retest will be borne by the producer or the processor. [ 25 ] OTS -5501.3 NEW SECTION WAC 314-55-104 Marijuana processor license extraction require- ments. (1) Processors are limited to certain methods, equipment, sol- vents, gases and mediums when creating marijuana extracts. (2) Processors may use the hydrocarbons N -butane, isobutane, pro- pane, or heptane or other solvents or gases exhibiting low to minimal potential human health-related toxicity approved by the board. These solvents must be of at least ninety-nine percent purity and a process- or must use them in a professional grade closed loop extraction system designed to recover the solvents, work in a spark free environment with proper ventilation, and follow all applicable local fire, safety and building codes in processing and the storage of the solvents. (3) Processors may use a professional grade closed loop CO2 gas extraction system where every vessel is rated to a minimum of nine hundred pounds per square inch and follow all applicable local fire, safety and building codes in processing and the storage of the sol- vents. The CO2 must be of at least ninety-nine percent purity. (4) Processors may use heat, screens, presses, steam distilla- tion, ice water, and other methods without employing solvents or gases to create kief, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources, and other extracts. (5) Processors may use food grade glycerin, ethanol, and propy- lene glycol solvents to create extracts. (6) Processors creating marijuana extracts must develop standard operating procedures, good manufacturing practices, and a training plan prior to producing extracts for the marketplace. Any person using solvents or gases in a closed looped system to create marijuana ex- tracts must be fully trained on how to use the system, have direct ac- cess to applicable material safety data sheets and handle and store the solvents and gases safely. (7) Parts per million for one gram of finished extract cannot ex- ceed 500 parts per million or residual solvent or gas when quality as- surance tested per RCW 69.50.348. NEW SECTION WAC 314-55-105 Packaging and labeling requirements. (1) All usa- ble marijuana and marijuana products must be stored behind a counter or other barrier to ensure a customer does not have direct access to the product. (2) Any container or packaging containing usable marijuana or marijuana products must protect the product from contamination and must not impart any toxic or deleterious substance to the usable mari- juana or marijuana product. (3) Upon the request of a retail customer, a retailer must dis- close the name of the accredited third -party testing lab and results of the required quality assurance test for any usable marijuana or other marijuana product the customer is considering purchasing. (4) usable marijuana and marijuana products may not be labeled as organic unless permitted by the United States Department of Agricul- ture in accordance with the Organic Foods Production Act. [ 26 ] OTS -5501.3 (5) The accredited third -party testing lab and required results of the quality assurance test must be included with each lot and dis- closed to the customer buying the lot. (6) A marijuana producer must make quality assurance test results available to any processor purchasing product. A marijuana producer must label each lot of marijuana with the following information: (a) Lot number; (b) UBI number of the producer; and (c) Weight of the product. (7) Marijuana -infused products meant to be eaten, swallowed, or inhaled, must be packaged in child resistant packaging in accordance with Title 16 C.F.R. 1700 of the Poison Prevention Packaging Act or use standards specified in this subsection. Marijuana -infused product in solid or liquid form may be packaged in plastic four mil or greater in thickness and be heat sealed with no easy -open tab, dimple, corner, or flap as to make it difficult for a child to open and as a tamper- proof measure. Marijuana -infused product in liquid form may also be sealed using a metal crown cork style bottle cap. (8) A processor may provide a retailer free samples of usable marijuana packaged in a sample jar protected by a plastic or metal mesh screen to allow customers to smell the product before purchase. The sample jar may not contain more than three and one-half grams of usable marijuana. The sample jar and the usable marijuana within may not be sold to a customer and must be either returned to the licensed processor who provide the usable marijuana and sample jar or destroyed by the retailer after use in the manner described in WAC 314-55-097 and noted in the traceability system. (9) A producer or processor may not treat or otherwise adulterate usable marijuana with any organic or nonorganic chemical or other com- pound whatsoever to alter the color, appearance, weight, or smell of the usable marijuana. (10) Labels must comply with the version of NIST Handbook 130, Uniform Packaging and Labeling Regulation adopted in chapter 16-662 WAC. (11) All usable marijuana when sold at retail must include accom- panying material that contains the following warnings that state: (a) "Warning: This product has intoxicating effects and may be habit forming. Smoking is hazardous to your health"; may be health risks associated with consumption of (b) "There this product"; (c) "Should feeding"; (d) "For use only reach of children"; (e) "Marijuana can Do not operate a drug"; (f) Statement that not be used by women that are pregnant or breast ment this by adults twenty-one and older. Keep out of impair concentration, coordination, and judg- vehicle or machinery under the influence of discloses all pesticides applied to the mari- juana plants and growing medium during production and processing. (12) All marijuana -infused products sold at retail must include accompanying material that contains the following warnings that state: (a) "There may be health risks associated with consumption of this product"; (b) "This product is infused with marijuana or active compounds of marijuana"; (c) "Should not be used by women that are pregnant or breast feeding"; [ 27 ] OTS -5501.3 (d) "For use only by adults twenty-one and older. Keep out of reach of children"; (e) "Products containing marijuana can impair concentration, co- ordination, and judgment. Do not operate a vehicle or machinery under the influence of this drug"; (f) "Caution: When eaten or swallowed, the intoxicating effects of this drug may be delayed by two or more hours." (g) Statement that discloses all pesticides applied to the mari- juana plants and growing medium during production of the base marijua- na used to create the extract added to the infused product; and (h) Statement that discloses the type of extraction method, in- cluding any solvents, gases, or other chemicals or compounds used to produce or that are added to the extract. (13) Labels affixed to the container or package containing usable marijuana sold at retail must include: (a) The business or trade name and Washington state unified busi- ness identifier number of the licensees that produced, processed, and sold the usable marijuana; (b) Lot number; (c) Concentration of THC, THCA, CBD, including a total of active cannabinoids (potency profile); (d) Net weight in ounces and grams or volume as appropriate; (e) Warnings that state: "This product has intoxicating effects and may be habit forming"; (f) Statement that "This product may be unlawful outside of Wash- ington state"; (g) Date of harvest. (h) The board may create a logo that must be placed on all usable marijuana and marijuana -infused products. (14) Sample label mock up for a container or package containing usable marijuana sold at retail with required information: UBI: 12345&7890010001 Lot#: 1423 Date of Harvest: 4-14 The Best Resins Blueberry haze 16.7 % THC 1.5% CBD Warning — This product has intoxicating effect and may be habit forming THS PRODUCT NS UNINAWFUL OUTSIDE WASHINGT©N STATE Net weight: 7 grams (15) Labels affixed to the container or package containing mari- juana -infused products sold at retail must include: (a) The business or trade name and Washington state unified busi- ness identifier number of the licensees that produced, processed, and sold the usable marijuana; (b) Lot numbers of all base marijuana used to create the extract; (c) Batch number; (d) Date manufactured; [ 28 ] OTS -5501.3 (e) Best by date; (f) Recommended serving size and the number of servings contained within the unit, including total milligrams of active tetrahydrocanna- binol (THC), or Delta 9; (g) Net weight in ounces and grams, or volume as appropriate; (h) List of all ingredients and any allergens; (i) "Caution: When eaten or swallowed, the intoxicating effects of this drug may be delayed by two or more hours." (j) If a marijuana extract was added to the product, disclosure of the type of extraction process and any solvent, gas, or other chem- ical used in the extraction process, or any other compound added to the extract; (k) Warnings that state: "This product has intoxicating effects and may be habit forming"; (1) Statement that "This product may be unlawful outside of Wash- ington state"; (m) The board may create a logo that must be placed on all usable marijuana and marijuana -infused products. (16) Sample label mock up (front and back) for a container or package containing marijuana -infused products sold at retail with re- quired information: (Front of label) „„„ UBI:123456'7B4R7 1DDDn ,,,,,,,,, ,,,,,,,,, Battchft:546'3 wvvv wvv�, The Best Resins Space cake CAUTION: when eaten the effects of this product can be dellayed by a much as two hours. Net weight 6oz (128;grarms) THIS PRODUCT 15 UNLAWFUL OUTSIDE WASHINGTON STATE. (Back of label) Manufactured at EU OId.. Hwy Rd. Mytown, WA on 1!14/14 Best by 2/1/14 fNGREDIENTS: Flour, &utter, Camola ❑iii, Sugar,. Chocolate, Marijuana, Stir CONTAINS ALLERGENS: Mfilk, Wheat, Serving size: 10 MG of THC This product tains 10 servings and a total of 100 MG of THC Warning- This product h fntoaicatfng effects and mnay be habt`t forming NEW SECTION WAC 314-55-120 Ownership changes. (1) Licensees must receive pri- or board approval before making any of the following ownership changes (see WAC 314-55-035 for the definition of "true party of interest"): [ 29 ] OTS -5501.3 Type of change Type of application Fee Change in the qualifying per- sons in a: Sole proprietorship, general partner- ship, limited partnership, or limited liability partnership. New application. Application fee and annual fee for current li- cense privilege. Change in the qualifying per- sons for a pub- licly or privately held corporation. The board will waive the fee for a corporate change when the proposed change consists solely of dropping an approved offi- cer. Application for change in corpo- rate officer and/or stock - holder. $75 Change in the qualifying per- sons in a limited liability compa- ny. Application for change of limi- ted liability company mem- ber and/or man- ager. $75 (2) The board may inquire into all matters in connection with any such sale of stock/units or proposed change in officers/members. NEW SECTION WAC 314-55-125 Change of location. (1) Changing your marijuana license to a new location requires an application, per the process outlined in WAC 314-55-020. (2) A change of location occurs any time a move by the licensee results in any change to the physical location address. NEW SECTION WAC 314-55-130 Change of business name. (1) If you wish to change the name of your business, you must apply for a change of trade name with the department of revenue, business license service. (2) If you wish to change your corporation or limited liability company name, you must apply for a change of name through the secreta- ry of state. (3) See chapter 434-12 WAC for guidelines for trade names. [ 30 ] OTS -5501.3 NEW SECTION WAC 314-55-135 Discontinue marijuana sales. You must notify the board's enforcement and education division in writing if you plan to stop doing business for more than thirty days, or if you plan to per- manently discontinue marijuana sales. NEW SECTION WAC 314-55-140 Death or incapacity of a marijuana licensee. (1) The appointed guardian, executor, administrator, receiver, trustee, or assignee must notify the board's licensing and regulation division in the event of the death, incapacity, receivership, bankruptcy, or as- signment for benefit of creditors of any licensee. (2) The board may give the appointed guardian, executor, adminis- trator, receiver, trustee, or assignee written approval to continue marijuana sales on the licensed business premises for the duration of the existing license and to renew the license when it expires. (a) The person must be a resident of the state of Washington. (b) A criminal background check may be required. (3) When the matter is resolved by the court, the true party(ies) of interest must apply for a marijuana license for the business. NEW SECTION WAC 314-55-145 Are marijuana license fees refundable? When a li- cense is suspended or canceled, or the licensed business is discontin- ued, the unused portion of the marijuana license fee will not be re- funded. NEW SECTION WAC 314-55-147 What hours may a marijuana retailer licensee con- duct sales? A marijuana retailer licensee may sell usable marijuana, marijuana -infused products, and marijuana paraphernalia between the hours of 8 a.m. and 12 a.m. NEW SECTION WAC 314-55-150 What are the forms of acceptable identification? (1) Following are the forms of identification that are acceptable to verify a person's age for the purpose of purchasing marijuana: (a) Driver's license, instruction permit, or identification card of any state, or province of Canada, from a U.S. territory or the Dis- [ 31 ] OTS -5501.3 trict of Columbia, or "identicard" issued by the Washington state de- partment of licensing per RCW 46.20.117; (b) United States armed forces identification card issued to ac- tive duty, reserve, and retired personnel and the personnel's depend- ents, which may include an embedded, digital signature in lieu of a visible signature; (c) Passport; (d) Merchant Marine identification card issued by the United States Coast Guard; and (e) Enrollment card issued by the governing authority of a feder- ally recognized Indian tribe located in Washington, if the enrollment card incorporates security features comparable to those implemented by the department of licensing for Washington driver's licenses. (2) The identification document is not acceptable to verify age if expired. NEW SECTION WAC 314-55-155 Advertising. (1) Advertising by retail licensees. The board limits each retail licensed premises to one sign identifying the retail outlet by the licensee's business name or trade name that is affixed or hanging in the windows or on the outside of the premises that is visible to the general public from the public right of way. The size of the sign is limited to sixteen hundred square inches. (2) General. All marijuana advertising and labels of useable mar- ijuana and marijuana -infused products sold in the state of Washington may not contain any statement, or illustration that: (a) Is false or misleading; (b) Promotes over consumption; (c) Represents the use of marijuana has curative or therapeutic effects; (d) Depicts a child or other person under legal age to consume marijuana, or includes: (i) Objects, such as toys, characters, or cartoon characters sug- gesting the presence of a child, or any other depiction designed in any manner to be especially appealing to children or other persons un- der legal age to consume marijuana; or (ii) Is designed in any manner that would be especially appealing to children or other persons under twenty-one years of age. (3) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertise- ment of marijuana, usable marijuana, or a marijuana -infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. (4) Giveaways, coupons, and distribution of branded merchandise are banned. (5) All advertising must contain the following warnings: [ 32 ] OTS -5501.3 (a) "This product has intoxicating effects and may be habit form- ing."; (b) "Marijuana can impair concentration, coordination, and judg- ment. Do not operate a vehicle or machinery under the influence of this drug."; (c) "There may be health risks associated with consumption of this product."; and (d) "For use only by adults twenty-one and older. Keep out of the reach of children." NEW SECTION WAC 314-55-160 Objections to marijuana license applications. (1) How can persons, cities, counties, tribal governments, or port author- ities object to the issuance of a marijuana license? Per RCW 69.50.331, the board will notify cities, counties, tribal governments, and port authorities of the following types of marijuana applications. In addition to these entities, any person or group may comment in writing to the board regarding an application. (2) What will happen if a person or entity objects to a marijuana license application? When deciding whether to issue or deny a marijua- na license application, the board will give substantial weight to in- put from governmental jurisdictions in which the premises is located based upon chronic illegal activity associated with the applicant's operations of the premises proposed to be licensed or the applicant's operation of any other licensed premises; and other persons or groups. Note: Per RCW 69.50.331, the board shall not issue a new marijuana li- cense if any of the following are within one thousand feet of the premises to be licensed: Any elementary or secondary schools, play- grounds, recreation centers or facilities, child care centers, public [ 33 ] OTS -5501.3 Type of application Entities the board will/may notify • Applications for an annual marijuana li- cense at a new loca- tion. • Cities and counties in which the premises is located will be noti- fied. Tribal governments and port authorities in which the premises is located may be no- tified. • Applications to change the class of an existing annual mari- juana license. • Changes of owner- ship at existing li- censed premises. • Cities and counties in which the premises is located will be noti- fied. Tribal governments and port authorities in which the premises is located may be no- tified. (2) What will happen if a person or entity objects to a marijuana license application? When deciding whether to issue or deny a marijua- na license application, the board will give substantial weight to in- put from governmental jurisdictions in which the premises is located based upon chronic illegal activity associated with the applicant's operations of the premises proposed to be licensed or the applicant's operation of any other licensed premises; and other persons or groups. Note: Per RCW 69.50.331, the board shall not issue a new marijuana li- cense if any of the following are within one thousand feet of the premises to be licensed: Any elementary or secondary schools, play- grounds, recreation centers or facilities, child care centers, public [ 33 ] OTS -5501.3 parks, public transit centers, libraries, game arcade where admission is not restricted to persons twenty-one years of age or older. (a) If the board contemplates issuing a license over the objec- tion of a governmental jurisdiction in which the premises is located, the government subdivision may request an adjudicative hearing under the provisions of the Administrative Procedure Act, chapter 34.05 RCW. If the board, in its discretion, grants the governmental jurisdic- tion(s) an adjudicative hearing, the applicant will be notified and given the opportunity to present evidence at the hearing. (b) If the board denies a marijuana license application based on the objection from a governmental jurisdiction, the applicant(s) may either: (i) Reapply for the license no sooner than one year from the date on the final order of denial; or (ii) Submit a written request on a form provided by the board for an adjudicative hearing under the provisions of the Administrative Procedure Act, chapter 34.05 RCW. The request must be received within twenty days of the date the intent to deny notification was mailed. NEW SECTION WAC 314-55-165 Objections to marijuana license renewals. (1) How can local cities, counties, tribal governments, or port authorities object to the renewal of a marijuana license? (a) The board will give governmental jurisdictions approximately ninety days written notice of premises that hold annual marijuana li- censes in that jurisdiction that are up for renewal. (b) Per RCW 69.50.331, if a county, city, tribal government, or port authority wants to object to the renewal of a marijuana license in its jurisdiction, it must submit a letter to the board detailing the reason(s) for the objection and a statement of all facts on which the objections are based. (c) The county, city, tribal government, or port authority may submit a written request to the board for an extension for good cause shown. (d) This letter must be received by the board at least thirty days before the marijuana license expires. The objection must state specific reasons and facts that show issuance of the marijuana license at the proposed location or to the applicant business how it will det- rimentally impact the safety, health, or welfare of the community. (e) If the objection is received within thirty days of the expi- ration date or the licensee has already renewed the license, the ob- jection will be considered as a complaint and possible license revoca- tion may be pursued by the enforcement division. (f) Objections from the public will be referred to the appropri- ate city, county, tribal government, or port authority for action un- der subsection (2) of this section. Upon receipt of the objection, the board licensing and regulation division will acknowledge receipt of the objection(s) and forward to the appropriate city, county, tribal government, or port authority. Such jurisdiction may or may not, based on the public objection, request nonrenewal. (2) What will happen if a city, county, tribal government, or port authority objects to the renewal of a marijuana license? The board will give substantial weight to a city, county, tribal govern- [ 34 ] OTS -5501.3 ment, or port authority objection to a marijuana license renewal of a premises in its jurisdiction based upon chronic illegal activity asso- ciated with the licensee's operation of the premises. Based on the ju- risdiction's input and any information in the licensing file, the board will decide to either renew the marijuana license, or to pursue nonrenewal. (a) Board decides to renew the marijuana license: (b) Board decides to pursue nonrenewal of the marijuana license: (i) The board will notify (i) The board will notify the jurisdiction(s) in writ- the licensee in writing of ing of its intent to renew its intent to not renew the the license, stating the rea- license, stating the reason son for this decision. for this decision. (ii) The jurisdiction(s) may (ii) The licensee may con - contest the renewal and re- test the nonrenewal action quest an adjudicative hear- and request an adjudica- ing under the provisions of tive hearing under the pro - the Administrative Proce- visions of the Administra- dure Act (chapter 34.05 tive Procedure Act (chap- RCW) by submitting a ter 34.05 RCW) by sub - written request on a form mitting a written request provided by the board. The on a form provided by the request must be received board. The request must be within twenty days of the received within twenty date the intent to renew days of the date the intent notification was mailed. If to deny notification was the board, in its discretion, grants the governmental mailed. (iii) If the licensee requests jurisdiction(s) an adjudica- a hearing, the governmen- tiv.e hearing, the applicant tal jurisdiction will be no - will be notified and given the opportunity to present tified. evidence at the hearing. (iv) During the hearing and any subsequent appeal process, the licensee is is- sued a temporary operat- ing permit for the marijua- na license until a final de- cision is made. NEW SECTION WAC 314-55-505 What are the procedures for notifying a licensee of an alleged violation of a liquor control board statute or regula- tion? (1) When an enforcement officer believes that a licensee has violated a board statute or regulation, the officer may prepare an ad- ministrative violation notice (AVN) and mail or deliver the notice to the licensee, licensee's agent, or employee. (2) The AVN notice will include: (a) A complete narrative description of the violation(s) the of- ficer is charging; (b) The date (s) of the violation(s); (c) A copy of the law(s) and/or regulation(s) allegedly violated; (d) An outline of the licensee's options as outlined in WAC 314-55-510; and (e) The recommended penalty. [ 35 ] OTS -5501.3 (i) If the recommended penalty is the standard penalty, see WAC 314-55-520 through 314-55-535 for licensees. (ii) For cases in which there are aggravating or mitigating cir- cumstances, the penalty may be adjusted from the standard penalty. NEW SECTION WAC 314-55-506 What is the process once the board summarily sus- pends a marijuana license? (1) The board may summarily suspend any li- cense after the board's enforcement division has completed a prelimi- nary staff investigation of the violation and upon a determination that immediate cessation of the licensed activities is necessary for the protection or preservation of the public health, safety, or wel- fare. (2) Suspension of any license under this provision shall take ef- fect immediately upon personal service on the licensee or employee thereof of the summary suspension order unless otherwise provided in the order. (3) When a license has been summarily suspended by the board, an adjudicative proceeding for revocation or other action must be prompt- ly instituted before an administrative law judge assigned by the of- fice of administrative hearings. If a request for an administrative hearing is timely filed by the licensee or permit holder, then a hear- ing shall be held within ninety days of the effective date of the sum- mary suspension ordered by the board. NEW SECTION WAC 314-55-507 How may a licensee challenge the summary suspen- sion of his or her marijuana license? (1) Upon summary suspension of a license by the board pursuant to WAC 314-55-506, an affected licensee may petition the board for a stay of suspension pursuant to RCW 34.05.467 and 34.05.550(1). A petition for a stay of suspension must be received by the board within fifteen days of service of the summary suspension order. The petition for stay shall state the basis on which the stay is sought. (2) A hearing shall be held before an administrative law judge within fourteen days of receipt of a timely petition for stay. The hearing shall be limited to consideration of whether a stay should be granted, or whether the terms of the suspension may be modified to al- low the conduct of limited activities under current licenses or per- mits. (3) Any hearing conducted pursuant to subsection (2) of this sec- tion shall be a brief adjudicative proceeding under RCW 34.05.485. The agency record for the hearing shall consist of the documentary infor- mation upon which the summary suspension was based. The licensee or permit holder shall have the burden of demonstrating by clear and con- vincing evidence that: (a) The licensee is likely to prevail upon the merits at hearing; [ 36 ] OTS -5501.3 (b) Without relief, the licensee will suffer irreparable injury. For purposes of this section, elimination of income from licensed ac- tivities shall not be deemed irreparable injury; (c) The grant of relief will not substantially harm other parties to the proceedings; and (d) The threat to the public health, safety, or welfare is not sufficiently serious to justify continuation of the suspension, or that modification of the terms of the suspension will adequately pro- tect the public interest. (4) The initial order on stay shall be effective immediately upon service unless another date is specified in the order. NEW SECTION WAC 314-55-508 Review of orders on stay. (1) The licensee, or agency, may petition the board for review of an initial order on stay. Any petition for review must be in writing and received by the board within ten days of service of the initial order. If neither party has requested review within ten days of service, the initial order shall be deemed the final order of the board for purposes of RCW 34.05.467. (2) If the board receives a timely petition for review, the board shall consider the petition within fifteen days of service of the pe- tition for review. Consideration on review shall be limited to the re- cord of the hearing on stay. (3) The order of the board on the petition for review shall be effective upon personal service unless another date is specified in the order and is final pursuant to RCW 34.05.467. Final disposition of the petition for stay shall not affect subsequent administrative pro- ceedings for suspension or revocation of a license. NEW SECTION WAC 314-55-510 What options does a licensee have once he/she re- ceives a notice of an administrative violation? (1) A licensee has twenty days from receipt of the notice to: (a) Accept the recommended penalty; or (b) Request a settlement conference in writing; or (c) Request an administrative hearing in writing. A response must be submitted on a form provided by the agency. (2) What happens if a licensee does not respond to the adminis- trative violation notice within twenty days? (a) If a licensee does not respond to the administrative viola- tion notice within twenty days, the recommended suspension penalty will go into effect. (b) If the penalty does not include a suspension, the licensee must pay a twenty-five percent late fee in addition to the recommended penalty. The recommended penalty plus the late fee must be received within thirty days of the violation notice issue date. (3) What are the procedures when a licensee requests a settlement conference? [ 37 ] OTS -5501.3 (a) If the licensee requests a settlement conference, the hearing examiner or designee will contact the licensee to discuss the viola- tion. (b) Both the licensee and the hearing examiner or designee will discuss the circumstances surrounding the charge, the recommended pen- alty, and any aggravating or mitigating factors. (c) If a compromise is reached, the hearing examiner or designee will prepare a compromise settlement agreement. The hearing examiner or designee will forward the compromise settlement agreement, author- ized by both parties, to the board, or designee, for approval. (i) If the board, or designee, approves the compromise, a copy of the signed settlement agreement will be sent to the licensee and will become part of the licensing history. (ii) If the board, or designee, does not approve the compromise, the licensee will be notified of the decision. The licensee will be given the option to renegotiate with the hearings examiner or desig- nee, of accepting the originally recommended penalty, or of requesting an administrative hearing on the charges. (d) If the licensee and the hearing examiner or designee cannot reach agreement on a settlement proposal, the licensee may accept the originally recommended penalty, or the hearing examiner or designee will forward a request for an administrative hearing to the board's hearings coordinator. NEW SECTION WAC 314-55-515 What are the penalties if a marijuana license holder violates a marijuana law or rule? (1) The purpose of WAC 314-55-515 through 314-55-540 is to outline what penalty a marijuana licensee can expect if a licensee or employee violates a liquor con- trol board law or rule. (WAC rules listed in the categories provide reference areas, and may not be all inclusive.) (2) Penalties for violations by marijuana licensees or employees are broken down into four categories: (a) Group One—Public safety violations, WAC 314-55-520. (b) Group Two—Regulatory violations, WAC 314-55-525. (c) Group Three—License violations, WAC 314-55-530. (d) Group Four—Producer violations involving the manufacture, supply, and/or distribution of marijuana by nonretail licensees and prohibited practices between nonretail licensees and retail licensees, WAC 314-55-535. (3) For the purposes of chapter 314-55 WAC, a three-year window for violations is measured from the date one violation occurred to the date a subsequent violation occurred. (4) The following schedules are meant to serve as guidelines. Based on mitigating or aggravating circumstances, the liquor control board may impose a different penalty than the standard penalties out- lined in these schedules. Based on mitigating circumstances, the board may offer a monetary option in lieu of suspension, or alternate penal- ty, during a settlement conference as outlined in WAC 314-55-510(3). [ 38 ] OTS -5501.3 (a) Mitigating circumstances (b) Aggravating circumstances Mitigating circumstan- Aggravating circumstances ces that may result in that may result in increased fewer days of suspen- days of suspension, and/or sion and/or a lower monetary option may in- increased monetary option, and/or cancellation of mari- clude demonstrated juana license may include business policies and/or business operations or be - practices that reduce the haviors that create an in - risk of future violations. creased risk for a violation and/or intentional commis- sion of a violation. Examples include: Examples include: • Having a signed ac- • Failing to call 911 for local knowledgment of the law enforcement or medical business' responsible assistance when requested by handling and sales poli- a customer, a liquor control cies on file for each em- board officer, or when peo- ployee; ple have sustained injuries. • Having an employee training plan that in- cludes annual training on marijuana laws. Cancellation of license NEW SECTION WAC 314-55-520 Group 1 violations against public safety. Group 1 violations are considered the most serious because they present a di- rect threat to public safety. Based on chapter 69.50 RCW, some viola- tions have only a monetary option. Some violations beyond the first violation do not have a monetary option upon issuance of a violation notice. The liquor control board may offer a monetary option in lieu of suspension days based on mitigating circumstances as outlined in WAC 314-55-515 (4) . Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Violations involving mi- nors: 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Sale or service to minor: Sale of marijuana and/or paraphernalia to a person under twenty-one years of age WAC 314-55-079 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Allowing a minor to fre- quent a restricted area. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Employee under legal age. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Licensee and/or employee open and/or consuming marijuana on a retail li- censed premises. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Conduct violations: Criminal conduct: Permit- ting or engaging in crimi- nal conduct. 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license [ 39 ] OTS -5501.3 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Using unauthorized pesti- cides, soil amendments, fertilizers, other crop pro- duction aids. WAC 314-55-020(8) WAC 314-55-083(4) WAC 314-55-087 (1)(f) 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Cancellation of license Adulterate usable marijua- na with organic or nonor- ganic chemical or other compound WAC 314-55-105(8) l0 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Cancellation of license Using unauthorized sol- vents or gases in process- ing WAC 314-55-104 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license $1,000 monetary fine Refusal to allow an inspec- tion and/or obstructing a law enforcement officer from performing their offi- cial duties. WAC 314-55-050 l0 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Cancellation of license Marijuana purchased from an unauthorized source. Marijuana sold to an un- authorized source. Sales in excess of transac- tion limitations. WAC 314-55-095(3) Cancellation of license Cancellation of license Cancellation of license l0 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license NEW SECTION WAC 314-55-525 Group 2 regulatory violations. Group 2 violations are violations involving general regulation and administration of re- tail or nonretail licenses. Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Hours of service: Sales of marijuana between 12:00 a.m. and 8:00 a.m. 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Advertising: Violations (statements/illustrations). WAC 314-55-155(2) 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Advertising violations — Sign exceeding 1600 square inches; within 1000 feet of prohibited areas; on or in public transit vehicles, shelters, or publicly owned or operated property. RCW 69.50.357 RCW 69.50.369 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Packaging and/or label- ing violations (processor/ retailer). WAC 314-55-105 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Licensee/employee failing to display required secur- ity badge. WAC 314-55-083(1) 5 -day suspension or $500 monetary option l0 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license [ 40 ] OTS -5501.3 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Failure to maintain re- quired security alarm and surveillance systems. WAC 314-55-083 (2) and (3) 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Records: Improper record- keeping. WAC 314-55-087 WAC 314-55-089 (3), (4), and (5) 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Failure to submit month- ly tax reports and/or pay- ments. WAC 314-55-089 WAC 314-55-092 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Signs: Failure to post re- quired signs. WAC 314-55-086 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Failure to utilize and/or maintain traceability (processor or retail licen- see). WAC 314-55-083(4) 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Violation of transporta- tion requirements. WAC 314-55-085 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Exceeding maximum serving requirements for marijuana -infused prod- ucts. WAC 314-55-095(2) 5 -day suspension or $500 monetary option l0 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Failure for a processor to meet marijuana waste disposal requirements. WAC 314-55-097 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Failure to maintain standardized scale re- quirements (processor/ retailer). WAC 314-55-099 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Marijuana processor ex- traction requirements. WAC 314-55-104 5 -day suspension or $500 monetary option 10 -day suspension or $2,500 monetary option 30 -day suspension Cancellation of license Retail outlet selling unau- thorized products. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Retailer displaying prod- ucts in a manner visible to the general public from a public right of way. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine NEW SECTION WAC 314-55-530 Group 3 license violations. Group 3 violations are violations involving licensing requirements, license classification, and special restrictions. [ 41 ] OTS -5501.3 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window True party of interest vio- lation. WAC 314-55-035 Cancellation of license $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to furnish re- quired documents. WAC 314-55-050 Cancellation of license $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Misrepresentation of fact. WAC 314-55-050 Cancellation of license $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Operating plan: Violations of a board-ap- proved operating plan. WAC 314-55-020 5 -day suspension or $500 monetary option 10 -day suspension or $1,500 monetary option 30 -day suspension Cancellation of license Failing to gain board ap- proval for changes in ex- isting ownership. WAC 314-55-120 30 -day suspension Cancellation of license $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to maintain re- quired insurance. WAC 314-55-080 30 -day suspension Cancellation of license $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license NEW SECTION WAC 314-55-535 Group 4 marijuana producer violations. Group 4 vi- olations are violations involving the manufacture, supply, and/or dis- tribution of marijuana by marijuana producer licensees and prohibited practices between a marijuana producer licensee and a marijuana re- tailer licensee. Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Unauthorized sale to a re- tail licensee. WAC 314-55-075 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to utilize and/or maintain traceability. WAC 314-55-083(4) $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Packaging and/or label- ing violations (producer). WAC 314-55-105 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Unauthorized product/ unapproved storage or delivery. $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure for a producer to meet marijuana waste disposal requirements. WAC 314-55-097 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Records: Improper re- cordkeeping. WAC 314-55-087 WAC 314-55-089 (2) and (4) WAC 314-55-092 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Violation of transporta- tion requirements. WAC 314-55-085 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license [ 42 ] OTS -5501.3 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Failure to maintain re- quired security alarm and surveillance systems. WAC 314-55-083 (2) and (3) $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to maintain standardized scale re- quirements (producer). WAC 314-55-099 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Violation. NEW SECTION WAC 314-55-540 Information about marijuana license suspensions. (1) On the date a marijuana license suspension goes into effect, a liquor control officer will post a suspension notice in a conspicuous place on or about the licensed premises. This notice will state that the license has been suspended by order of the liquor control board due to a violation of a board law or rule. (2) During the period of marijuana license suspension, the licen- see and employees: (a) Are required to maintain compliance with all applicable mari- juana laws and rules; (b) May not remove, alter, or cover the posted suspension notice, and may not permit another person to do so; (c) May not place or permit the placement of any statement on the licensed premises indicating that the premises have been closed for any reason other than as stated in the suspension notice; (d) May not advertise by any means that the licensed premises is closed for any reason other than as stated in the liquor control board's suspension notice. (3) During the period of marijuana license suspension: (a) A marijuana retailer or marijuana processor licensee may not operate his/her business during the dates and times of suspension. (b) There is no sale, delivery, service, destruction, removal, or receipt of marijuana during a license suspension. (c) A producer of marijuana may do whatever is necessary as a part of the producing process to keep current stock that is on hand at the time of the suspension from spoiling or becoming unsalable during a suspension, provided it does not include processing the product. The producer may not receive any agricultural products used in the produc- tion of marijuana during the period of suspension. [ 43 ] OTS -5501.3 (E) CITY OF YAKIMA ORDINANCE NO. 2013-148, ENACTING MORATORIUM. ORDINANCE NO. 2013-048 AN ORDINANCE of the City of Yakima, Washington, adopting a six-month moratorium, through midnight of May 6, 2014, on the filing, acceptance and processing of applications, and issuance of land use and development permits for, production, processing and retailing of marijuana as authorized pursuant to Initiative 502 approved by the voters on November 6, 2012; setting public hearing on the moratorium adopted herein for November 5 2013; directing development of comprehensive regulations pertaining to the production, processing and retail sale of marijuana; and providing for effective date. WHEREAS, the people of the State of Washington on November 6, 2012 approved Initiative 502 decriminalizing possession and use of certain amounts of marijuana and drug paraphernalia associated with marijuana, and authorized the Washington State Liquor Control Board (WSLCB) to develop and promulgate rules and regulations pertaining to the licensing of marijuana production, processing and retail sale; and WHEREAS, pursuant to Initiative 502 the WSLCB was directed to adopt administrative rules and procedures for licensing of marijuana production, processing and retailing on or before December 1, 2013; and WHEREAS, the WSLCB has announced that it is ready to adopt and issue such rules and regulations on or about November 18, 2013 and thereafter to receive applications for licenses for marijuana production, processing and retail sale, and to begin issuance of such licenses after December 18, 2013; and WHEREAS, the City of Yakima has previously adopted an ordinance codified at YMC 15.01.035 providing that no use that is illegal under local, state or federal law shall be allowed within the City of Yakima, and specifically bans medical marijuana dispensaries and collective gardens under the application of such code; and WHEREAS, beyond the provisions of YMC 15.01.035, the City of Yakima has no specific code or ordinance specifically regulating land uses for the marijuana production, processing and/or retail sale authorized pursuant to Initiative 502 and the regulations to be promulgated by the WSLCB; and WHEREAS, the existing land use regulations of the City of Yakima do not address zoning districts or areas eligible to accommodate marijuana production, processing and retailing, and the City would benefit from an opportunity to study the location of such uses and where such uses may be detrimental to the community; and WHEREAS, allowing facilities for the production, processing and retailing of marijuana to proliferate without studying the impacts of such uses throughout the City, is likely to result in probable significant environmental impacts on adjacent land uses, including but not limited to residential neighborhoods, businesses, churches and public property such as parks and recreational trails; and 1 WHEREAS, RCW 36.70A.390 and RCW 35.63.200 authorize the City Council to adopt an ordinance imposing a moratorium and provides a process for public hearing which must be held within sixty days of the date of adoption of the moratorium; and WHEREAS, the City Council finds and determines that the City of Yakima needs time to consider additional zoning regulations and land use regulations which would deal specifically with such marijuana production, processing and retailing as authorized pursuant to Initiative 502, and the City Council has therefore decided to impose a moratorium for the term of six months, commencing on the effective date of this ordinance and extending through May 6, 2014, in order to study the issue as determined by the City Council and to consider adopting appropriate regulations; and WHEREAS, the City Council finds and determines that imposition of a moratorium is necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning and land use regulation of marijuana production, processing and retailing, and to prepare appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and welfare of the citizens of Yakima by avoiding and ameliorating negative impacts of the proliferation of locations for marijuana production, processing and retailing; and (c) avoid applicants possibly establishing vested rights contrary to and inconsistent with any revisions the City may make to its regulations and codes as a result of the City's study of this matter; and WHEREAS, the City Council authorizes and directs the City Manager to review existing City codes and zoning regulations, further study the effects resulting from any approval of Initiative 502 and implementing regulations, prepare comprehensive proposed amendments to the City codes and zoning regulations to address the effects of such initiative, to confer with community members and City advisory commissions as appropriate, and to present recommended legislation addressing such issues to the City Council for consideration and action; and WHEREAS, the City Council finds and determines that a public hearing on this moratorium should be held on November 5, 2013, whereupon the City Council may adopt findings of fact in support of the adoption of this moratorium, or modify the terms thereof; and WHEREAS, notwithstanding the term of six months set forth above for the moratorium adopted herein, this moratorium may at any time hereafter be (a) modified by the City Council in accordance with applicable law; (b) extended for additional term(s) of six months upon action following public hearing and adoption of findings in support thereof; (c) terminated by the City Council upon adoption of appropriate zoning and regulatory codes; or (d) terminated by the City Council for any reason deemed necessary or appropriate; now, therefore: BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Moratorium Established. From and after the effective date of this ordinance, the City shall not allow the filing of or accept any application for a building permit, tenant improvement, business license, subdivision, short subdivision, site plan review, or any other development, or for any building (including any additions, expansions, or modifications thereto), land, structure or land use, in which the production, processing and/or retail sale of marijuana are, or are proposed to be, operated or conducted. From and after the effective date of this ordinance, no new land use which operates or conducts the production, processing and/or retail sale of marijuana as authorized pursuant to Initiative 502 and its implementing regulations shall be located within the City. As used in this ordinance, the terms "production," 2 "processing" and "retailing" of marijuana are defined as provided in Initiative 502 and regulations implementing such initiative promulgated by the WSLCB, as now existing or as hereafter adopted or amended. Section 2. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35.63.220, a public hearing will be held on Tuesday, November 5, 2013, for the purpose of taking testimony and, if this ordinance is passed, adopting written findings and conclusions justifying the moratorium established by this ordinance. Section 3. Effective Period of Moratorium. The moratorium adopted by this ordinance shall become effective thirty (30) days after passage and publication as required by the Charter of the City of Yakima, and shall remain in effect for six months, through May 6, 2014, subject to adoption of findings and conclusions as provided in Section 2 above. This moratorium shall also terminate upon the adoption of permanent regulations governing the location and land use of persons and businesses operating with licenses for the production, processing and retailing of marijuana authorized pursuant to Initiative 502. Notwithstanding the above, this moratorium may be extended as provided in RCW 36.70A.390 and RCW 35.63.200. Section 4. Directive to City Manager. The City Council hereby authorizes and directs the City Manager to review existing City codes and zoning regulations; to further study the effects resulting from the licensing and location of marijuana production processing and retailing; to prepare comprehensive proposed amendments to the City codes and zoning regulations to address the effects of Initiative 502 and its implementing regulations; to confer with community members and City advisory commissions as appropriate; and to present recommended legislation addressing such issues to the City Council for consideration and action. Section 5. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this ordinance. Section 6. Effective Date. This ordinance shall be in full force and effect thirty (30) days after its passage and publication as provided by law and the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 8th day of October, 2013. ATTEST: By • ity Clerk Publication Date: October 11, 2013 Effective Date: November 10, 2013 3 Micah Cawleyayor (F) RESOLUTION NO. 2013-142, ADOPTING FINDINGS OF FACT IN SUPPORT OF MORATORIUM ENACTED PER ORDINANCE NO. 2013-148. RESOLUTION NO. R-2013-142 A RESOLUTION adopting Findings of Fact supporting a six-month moratorium, enacted October 8, 2013 pursuant to Ordinance No. 2013-048, prohibiting acceptance and processing of applications, and issuance of land use and development permits for, production, processing and retailing of marijuana as authorized pursuant to Initiative 502; and authorizing the City Manager to study and develop appropriate comprehensive land use regulations addressing such issues for consideration by the City Council; and setting public hearing on November 5, 2013. WHEREAS, pursuant to RCW 36.70A.390 and RCW 35 63.200, the City Council of the City of Yakima on October 8, 2013 adopted Ordinance No. 2013-048 imposing a moratorium for six months prohibiting acceptance and processing of applications, and issuance of land use and development permits for, production, processing and retailing of marijuana as authorized pursuant to Initiative 502, and authorizing the City Manager to study and develop appropriate comprehensive land use regulations addressing such issues for consideration by the City Council; and WHEREAS, RCW 36.70A.390 and RCW 35 63 200 require the City Council to hold a public hearing within sixty days after imposition of a moratorium to receive evidence and testimony regarding imposition of the moratorium, to consider whether such moratorium should be modified or continue in effect as originally adopted, and to adopt findings of fact supporting such decision; and WHEREAS, the City Council has held the required public hearing on November 5, 2013 pursuant to notice duly published, and having considered all evidence and testimony presented and the record herein, hereby makes the following: Findings of Fact 1. The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390 and RCW 35 63.200 to adopt a moratorium to preserve the status quo pending development of comprehensive land use controls, regulations and procedures concerning marijuana, all as authorized by Initiative 502 and regulations implementing the provisions of such Initiative ("Initiative 502" or the "Initiative") 2. The Initiative, which was approved by voters of Washington State on November 6, 2012, authorized the Washington State Liquor Control Board ("WSLCB") to adopt regulations and begin implementation of the Initiative and such regulations by December 1, 2013, and to thereafter issue licenses for marijuana production, processing and retailing. The WSLCB has adopted such regulations on or about October 16, 2013, which will become effective on November 18, 2013 The WSLCB is therefore in position to begin review of applications and issuance of licenses for marijuana production, processing and retailing on and after December 1, 2013 3 The Initiative and regulations implementing such law state prohibit location of licensed marijuana production, processing and retail outlets within 1,000 feet of certain protected areas such as schools, public parks, public transit centers, libraries and other protected uses, but make no provision for protection of residential areas, 1 commercial zones and other zoning districts. New WAC 314-55-020(11) provides that the "issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to. Building and fire codes, zoning ordinances, and business licensing requirements." Such rule recognizes the land use regulatory authority granted to cities under the state constitution to impose appropriate zoning and land use controls on the location of marijuana production, processing and retail outlets. 4 The City Council finds and determines that the City of Yakima needs time to consider additional zoning regulations and land use regulations which would deal specifically with such marijuana production, processing and retailing as authorized pursuant to Initiative 502, and the City Council has therefore decided to impose a moratorium for the term of six months, commencing on the effective date of this ordinance and extending through May 6, 2014, in order to study the issue as determined by the City Council and to consider adopting appropriate regulations. 5. The City Council finds and determines that imposition of a moratorium is necessary to (a) provide the City with an opportunity to study the issues regarding location, zoning and land use regulation of marijuana production, processing and retailing, and to prepare appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and welfare of the citizens of Yakima by avoiding and ameliorating negative impacts of the proliferation of locations for marijuana production, processing and retailing; and (c) avoid applicants possibly establishing vested rights contrary to and inconsistent with any revisions the City may make to its regulations and codes as a result of the City's study of this matter; 6. The existing codes, ordinances and procedures of the City of Yakima do not adequately address land use regulation of marijuana production, processing and retailing The City Council further finds and determines that the City of Yakima needs time to consider additional zoning and land use regulations which would deal specifically with the production, processing, and retailing of marijuana or marijuana products within the City of Yakima, and the City Council therefore finds and determines that the moratorium for the term of six months adopted and implemented in Ordinance No. 2013-048, extending through May 6, 2014, is necessary and appropriate in order to study the issues and to consider adopting appropriate regulations. 7. The City Council finds and determines that the moratorium adopted and implemented pursuant to Ordinance No 2013-048 should be effective according to its terms, and that such is in the best interests of residents of the City of Yakima and will promote the general health, safety and welfare; and WHEREAS, the City Council concludes, based on the evidence and testimony presented at public hearing on November 5, 2013 and on the record herein, that the above Findings of Fact should be adopted and the moratorium imposed pursuant to Ordinance No. 2013-048 should remain in effect as adopted; now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: 2 1. The Findings of Fact set forth above are hereby adopted as the Findings of Fact supporting the adoption, implementation and continuation of the moratorium adopted October 8, 2013 pursuant to Ordinance No. 2013-048 according to its terms 2. The City Manager of the City of Yakima is hereby authorized and directed to perform those duties and functions set forth in Ordinance No. 2013-048, including but not limited to, development of proposed comprehensive land use regulations pertaining to the production, processing and retailing of marijuana and any issue ancillary thereto. ADOPTED BY THE CITY COUNCIL this 5th day of November, 2013. ATTEST 4At .X Micah Caw ey, ayor 3 (G) MEMORANDUM TO CITY COUNCIL DATED OCTOBER 2, 2013 REGARDING INITIATIVE 502. CITY OF YAKIMA LEGAL DEPARTMENT 200 South Third Stn et,Yakima, Washington 918901 (509)575-6030 Fax (509)575-6160 TO: MEMORANDUM October 2, 2013 Honorable Mayor and City Council Tony O'Rourke, City Manager Jeff Cutter, City Attorney FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Initiative 502 — Marijuana — Land Use Regulation — Preemption Issues On November 6, 2012, voters in the State of Washington approved Initiative 502. This initiative legalized possession and use of marijuana (one ounce or less) and established a mechanism for state licensure and regulation of marijuana production, processing and retailing. Licensing of the legalized marijuana production, processing and retailing is vested in the Washington State Liquor Control Board (LCB). Under Initiative 502, the LCB has until December 1, 2013 to promulgate rules applicable to the licensing and regulation of marijuana. However, the LCB is on track to issue its final rules on November 16, 2013, and has announced that it will begin receiving applications for marijuana production, processing and retailing licenses on November 18, 2013, and will begin issuing licenses on December 1, 2013. Meanwhile, the federal Controlled Substances Act still categorizes marijuana as a Schedule I controlled substance. Production, distribution, possession and use of 1 "1-502 Implementation Timeline," WSLCB, www.liq.wa.gov (as of September 17, 2013). Proposed WAC 314-55-081(4) provides for a "30 -day window" to apply for retail licenses: (4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty - day calendar window beginning with the effective date of this section. In order for a marijuana retailer license application to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana retailer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 2 marijuana for any purpose are unlawful. Under court decisions, local business licensing or permitting schemes for medical marijuana have been found to be preempted by the federal law, but a recent decision by the California Supreme Court upheld a city's right to ban medical marijuana dispensaries under its land use jurisdiction.3 On August 29, 2013, the U.S. Attorney's office issued a memorandum entitled "Guidance Regarding Marijuana Enforcement." The memorandum reiterated the U.S. Attorney's position that marijuana remains a controlled substance under the federal Controlled Substances Act. The memorandum announced a policy of "prosecutorial discretion" when considering enforcement actions in states that have legalized possession and use of recreational marijuana. If the state maintains a "strong and effective regulatory system" for recreational marijuana that prevents illegal distribution to minors and prevents introduction of illegal marijuana into interstate commerce, the U'S. Attorney's office will exercise its "discretion" not to prosecute. However, the memorandum also makes clear that the federal government may exercise its enforcement and prosecutorial powers in any case where it finds federal priorities warrant such action. The City of Yakima has adopted land use code amendments stating that any use that is illegal under local, state or federal law shall not be allowed in the city. YMC 15.01.035(A). This code includes a specific subsection providing that the prohibition also applies to medical marijuana dispensaries and collective gardens. YMC 15.01.035(B). Issue Presented: What authority does a city retain to regulate licensing and location of marijuana producers, processors and retailers? Summary Answer: The new law does not contain a specific provision expressly providing that the State of Washington is "preempting" the field of regulation, but the comprehensive nature of the new state law regarding licensure and permitting of production, processing and retailing will likely be found to preempt the ability of local jurisdictions to issue regulatory business licenses for these functions. Moreover, if the city implements a licensing scheme for business engaged in the functions of producing, processing and/or retailing marijuana, it runs a risk that those city employees engaged 2 In fact Governor Gregoire vetoed provisions of the Medical Use of Marijuana Act (MDMA) on the threat from the U.S. Attorney's office that the proposed state licensing of medical marijuana dispensaries was a violation of the federal Controlled Substances Act, and that state employees charged with licensing such activities could face potential prosecution for "aiding and abetting" a violation of the federal law. City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4`h 729, 300 P.3d 494 (2013). Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 3 in such licensing activities may be found to be "aiding and abetting" a violation of federal law. Nothing in the new marijuana law expressly preempts a city's ability to regulate land use or zoning of facilities for production, processing and retailing of marijuana. The new law contains "proximity" limitations restricting marijuana production, processing and retailing (and "advertising") no closer than 1,000 feet from schools, libraries, parks and other public places. However, proposed Washington Administrative Code (WAC) rules include provisions recognizing the ability of cities to enforce their zoning and safety codes. Current city code provisions ban any use that is illegal under local, state or federal law. As such, this code provision operates as a ban against marijuana producers, processors and retailers within the city limits. With these parameters in mind, the following options are available: (a) Maintain Status Quo. Status quo means that YMC 15.01.035 remains in effect as originally adopted. Thus, no use that is illegal under local, state or federal law will be allowed in the city. This code section contains a specific ban for medical marijuana dispensaries and collective gardens, but no specific language is used to ban production, processing and retailing of "recreational marijuana." (b) Amend Current Code to Ban Production, Processing and Retailing of Recreational Marijuana. This option entails an amendment of YMC 15.01.035 to add a new subsection specifically banning the production, processing and retailing of marijuana within the City of Yakima. This is preferable to simply maintaining the status quo discussed in option (a) above in that it provides further clarity and precision and is consistent with the current subsection banning medical marijuana dispensaries and collective gardens. This option entails an amendment to Title 15 YMC and would require public hearings before the Planning Commission and City Council. It would be advisable to adopt the amendment to be effective on or before November 30, 2013. (c) Develop and Adopt Land Use (Zoning) Controls for Production, Processing and Retailing of Recreational Marijuana and/or Medical Marijuana. The city may develop zoning codes defining areas where marijuana production, processing and/or retailing may be conducted. For example, it is possible to limit such activities to industrial or commercial zones, or an overlay zone within an industrial zone, or other areas. Licensed marijuana production, processing and Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 4 retailing would remain subject to the 1,000 -foot limitations of Initiative 502, and would also be subject to the city's designated zoning requirements. Likewise, the City Council may wish to consider appropriate zoning designations for medical marijuana dispensaries and collective gardens. If any of these zoning options are considered, amendments to the city's zoning codes (Title 15 YMC) will require public hearings before the Planning Commission and City Council. Because the LCB indicates it will begin issuing marijuana production, processing and retail licenses on December 1, 2013, any ordinance amending the city's zoning codes would have to be adopted so as to be effective no later than November 30, 2013. I. Discussion A. Initiative 502 The Initiative decriminalizes possession and use, by a person twenty-one years or older, of marijuana in the following amounts: (a) One ounce of useable marijuana; (b) Sixteen (16) ounces of marijuana -infused product in solid form; or (c) Seventy-two (72) ounces of marijuana -infused product in liquid form. 1-502 Sections (15), (20). The law also decriminalizes production, processing, distribution and sale by any "marijuana producer," "marijuana processor," or "marijuana retailer" licensed by the LCB. 1-502 Section 19(3). New Section 21 provides that any person who opens a package containing marijuana, or consumes marijuana, "in view of the general public" shall be guilty of a Class 3 infraction per Chapter 7.80 RCW. "Marijuana producer" means "a person licensed by the state liquor control board to produce and sell marijuana at wholesale to marijuana processors and other marijuana producers." RCW 69.50.101(u) (1-502 Section 2). "Marijuana processor" means "a person licensed by the state liquor control board to process marijuana into useable marijuana and marijuana -infused products, package and label useable marijuana and marijuana -infused products for sale in retail outlets, and sell useable marijuana and marijuana -infused products at wholesale to marijuana retailers." RCW 69.50.101(t) (1-502 Section 2). Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 5 "Marijuana retailer" is defined as "a person licensed by the state liquor control board to sell useable marijuana and marijuana -infused products in a retail outlet." RCW 69.50.101(w)(I-502 Section 2). "Retail outlet" is defined as "a location licensed by the state liquor control board for the retail sale of useable marijuana and marijuana -infused products." RCW 69.50.101(ff) (1-502 Section 2). New Section 6(8) and New Section 18 of 1-502 set forth some limitations: NEW SECTION. Sec. 6. *** (8) The state liquor control board shall not issue a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older. *** NEW SECTION. Sec. 18. (1) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertisement of marijuana, useable marijuana, or a marijuana -infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. (2) Merchandising within a retail outlet is not advertising for the purposes of this section. (3) This section does not apply to a noncommercial message. (4) The state liquor control board shall fine a licensee one thousand dollars for each violation of subsection (1) of this section. Fines collected under this subsection must be deposited into the dedicated marijuana fund created under section 26 of this act. (Emphasis added). Section 19(3) of 1-502 provides: (3)The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with the terms set forth in sections 15, 16, or 17 of this act shall not constitute a violation of this section, this chapter, or any other provision of Washington state law. Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 6 (Emphasis added). Section 19 amends RCW 69.50.401, which sets forth the criminal penalties for illegal possession and use of controlled substances. In its context, the statement above, that lawful production, processing, possession and use of marijuana shall not constitute a violation of "any other provision of Washington state law," speaks to other state laws imposing criminal penalties. Section 10 of the Initiative requires the Liquor Control Board to adopt rules by December 1, 2013 implementing the provisions of the Initiative, including the following: NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to implement the following: (1)Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market;... Additional rules are required to determine the amounts of marijuana and marijuana - infused products that can be held by marijuana producers, processors and retailers. Rules must be developed regarding packaging, THC levels, classes of marijuana and marijuana -infused products, establishing "reasonable time, place and manner" restrictions regarding advertising, times for transport and delivery of marijuana and marijuana -infused products, and establishing criteria for testing laboratories. New Section 13 pertains to retail outlets: NEW SECTION. Sec. 13. There may be licensed, in no greater number in each of the counties of the state than as the state liquor control board shall deem advisable, retail outlets established for the purpose of making useable marijuana and marijuana -infused products available for sale to adults aged twenty-one and over. Retail sale of useable marijuana and marijuana -infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer or retail outlet employee, shall not be a criminal or civil offense under Washington state law. Also, New Section 10 further describes the methodology to be used by the LCB to determine the "maximum number of retail outlets that may be licensed in each county:" Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 7 NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to implement the following: (1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market;... (Emphasis added). This section does not, by its terms, limit the ability of a city to impose zoning restrictions on the location of such establishments. Also, it is important to note that the law does not mandate that marijuana retail outlets be located in any city; rather, the law requires the LCB to determine a "maximum" number of retail outlets "that maybe licensed in each county." It is also important to note that there is no provision in Initiative 502 limiting the number of licenses for marijuana production and/or processing operations within each county. Thus, while the number of marijuana retail outlets is subject to a maximum number per county, there is no similar limitation for production or processing. Sections 26 and 27 of Initiative 502 deal with revenues. Section 26 establishes a "dedicated marijuana fund," which shall consist of "all marijuana excise taxes, license fees, penalties, forfeitures, and all other moneys, income or revenue received by the state liquor control board from marijuana -related activities." Section 27 imposes a 25% excise tax on marijuana production wholesale price, a 25% excise tax on processing wholesale price, and a 25% excise tax on retail sales. The revenues are to be deposited in the Dedicated Marijuana Fund. Operations of the LCB will be funded out of proceeds from the fund. Additionally, the law provides for disbursements to various state agencies such as DSHS to fund programs and studies. Section 27 provides that the excise taxes on retail sales are "separate and in addition to general state and local sales and use taxes that apply to retail sales of tangible personal property, and is part of the total retail price to which general state and local sales and uses taxes apply." Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 8 B. Liquor Control Board Rule -Making. Initiative 502 directed the LCB to develop and promulgate rules implementing Initiative 502 by December 1, 2013. As indicated above, the LCB is on track to issue final rules on November 16, 2013. Proposed WAC 314-55-020(11) describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. (Emphasis added.) In short, issuance of a license by LCB does not constitute approval of a marijuana production, processing or retail facility at a location banned by the city. This is a significant recognition by LCB of the land use regulation authority of cities and counties. The interpretation of the code and regulations by the agency charged with enforcing such codes and regulations is given deference by the courts. Port of Seattle v. Pollution Control Hearings Board, 151 Wash.2d 568, 90 P.3d 659 (2004) ("...the agency charged with interpreting and applying the water code, its interpretation of a provision deserves deference, so long as that interpretation is not contrary to the plain language of the statute").; Cobra Roofing Service, Inc. v. Department of Labor and Industries, 122 Wash. App. 402, 97 P.3d 17 (2004). Proposed WAC 314-55-081 pertains to designation of the maximum number of retail outlets per county: WAC 314-55-081 Who can apply for a marijuana retailer license? (1) Using estimated consumption data and population data obtained from the office of financial management (OFM) population data, the liquor control board will determine the maximum number of marijuana retail locations per county. The number of retail locations will be determined using a method that distributes the number of locations proportionate to the most populous cities within each county. Locations not assigned to a specific city will be at large. At large locations can be used for unincorporated areas in the county or in cities within the county that have no retail licenses designated. Once the number of locations per city and at large have been identified, the eligible applicants will be selected by lottery in the event the number of applications exceeds the allotted amount for the cities and county. Any lottery conducted by the board will be witnessed by an independent third party. (2) The number of marijuana retail licenses determined by the board can be found on the liquor control board web site at www.liq.wa.gov. Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 9 (3) Any entity and/or principals within any entity are limited to no more than three retail marijuana licenses with no multiple location licensee allowed more than thirty-three percent of the allowed licenses in any county or city. (4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty - day calendar window beginning with the effective date of this section. In order for a marijuana retailer license application to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana retailer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. Under these rules, if a city enacts a ban on marijuana production, processing and retailing, the effect would be to convert the number of "assigned" retail licenses to "at large" licenses. These "at large" locations could used for unincorporated areas of the county "or in cities within the county that have no retail licenses designated." Thus, the enactment of a city-wide ban would not change the number of "maximum" retail licenses attributed to the county, but would simply rearrange "location" of the licensed sites and convert status from "assigned" to "at large." C. Local Land Use Jurisdiction The ability of cities to make and impose land use regulations is established in the state constitution. Constitution Article 11, § 11 provides: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." This authority was explained as follows: Municipalities are constitutionally vested with the authority to enact ordinances in furtherance of the public health, safety, morals, and welfare. However, "the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction." Lenci v. Seattle, 63 Wash.2d 664, 669, 388 P.2d 926 (1964). Whether there is room for concurrent jurisdiction depends upon the legislative intent to be ascertained from an examination of the statute involved and the interaction between the state and local provisions. Where the Legislature does not specifically state its intent to occupy a given field, such intent can be inferred from "the purposes of the legislative enactment and ... the facts and circumstances upon which the enactment was intended to operate." Lenci, at 670, 388 P.2d 926. Baker v. Snohomish County Dept. of Planning and Community Development, 68 Wash.App. 581, 585, 841 P.2d 1321, review denied, 121 Wash.2d 1027, 854 P.2d 1085 (1993); Brown v. City of Yakima, 116 Wash.2d 556, 807 P.2d 353 (1991)(citations omitted). In Baker, the plaintiff had obtained a surface mining permit from the state Department of Natural Resources pursuant to provisions of the Surface Mining Act, Chapter 78.44 Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 10 RCW ("SMA"), but the county code required a conditional use permit for surface mining use. The plaintiff alleged that the provisions of the SMA preempted the county's ability to require a conditional use permit. The court disagreed and upheld the county's conditional use permit requirement: In general, even when they address the same field of activity, the presumption is that state legislation and local legislation are concurrent in the absence of a direct conflict. Thus, although a subordinate legislative body may not prohibit something permitted by the superior legislative body, it may have the power to pass additional regulations which are not in direct conflict. In determining whether an ordinance is in conflict with general laws, the test is " `whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa [.]' " Employco Personnel Services, Inc. v. Seattle, 117 Wash.2d 606, 618, 817 P.2d 1373 (1991) (quoting Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292 (1960). Judged by such a test, an " `ordinance is in conflict if it forbids that which the statute permits'." (Footnote omitted.) Employco, 117 Wash.2d at 618, 817 P.2d 1373 (quoting Schampera, 57 Wash.2d at 111, 356 P.2d 292). Snohomish County land use ordinances do not purport to forbid anything authorized by SMA, but at most to regulate the activity. Nor do they purport to authorize surface mining without a DNR permit. Nothing in the provisions of the SMA suggests any inherent or necessary conflict with local land use regulations. On the contrary, the act is almost totally directed to concerns of reclamation and gives no direction to DNR as to land use considerations. If one were to speculate on legislative purpose, it would appear more likely that the Legislature felt local land use regulation did not sufficiently address reclamation rather than that the Legislature wanted DNR to determine where surface mining could take place irrespective of local zoning regulations. Another factor against preemption is that it is impossible to demonstrate in the abstract that the provisions of a DNR permit and the provisions of the Snohomish County land use ordinance are in conflict. The DNR has great flexibility in fixing the terms of its permit and the local agency likewise has a large measure of discretion in the terms to be required in a conditional use permit. Where any conflict is hypothetical and dependent upon the precise manner in which two discretionary permits were crafted, it is inappropriate to find preemption by implication. It is soon enough to find preemption when a conflict arises. There is no showing, nor even any attempt to show, that concurrent authority is not possible and, indeed, practical and feasible. It certainly was practical and feasible with respect to Baker's operation because he operated successfully under concurrent state and local regulation. Baker, supra at 590-91. In Weden v. San Juan County, 135 Wash.2d 678, 958 P.2d 273 (1998), the county commissioners adopted a ban on motorized personal watercraft ("PWC") in the marine waters of San Juan County. Owners of PWCs filed suit contending that the ban conflicted with the state's Recreational Vehicle Registration Law, Chapter 88.02 RCW and was thus in violation of Constitution Article XI, Section 11. The Weden court observed: Article XI, section 11 requires a local law yield to a state statute on the same subject matter if that statute "preempts the field, leaving no room for concurrent jurisdiction," or "if a conflict exists such that the two cannot be harmonized." Brown v. City of Yakima, 116 Wash.2d 556, 559, 561, 807 Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 11 P.2d 353 (1991). Respondents do not argue that the Legislature has preempted the field of conduct governed by the Ordinance but, rather, contend the Ordinance conflicts with various state laws. "In determining whether an ordinance is in `conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 [ (1923) ]. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits,' State v. Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246 [ (1937) ]. City of Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292, 92 A.L.R.2d 192 (1960). An ordinance must yield to state law only "if a conflict exists such that the two cannot be harmonized." Brown, 116 Wash.2d at 561, 807 P.2d 353; accord Schampera, 57 Wash.2d at 111, 356 P.2d 292 ("Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. Bodkin v. State, [132 Neb. 535], 272 N.W. 547 [ (1937) ]."). In this case, we must examine whether the Ordinance conflicts with chapter 88.02 RCW, chapter 88.12 RCW, chapter 90.58 RCW, chapter 43.99 RCW, or the public trust doctrine. Weden, supra at 693. Addressing the claims of the PWC owners, the court held: The trial court found the Ordinance conflicted with chapter 88.02 RCW, the state vessel registration statute. In essence, the trial court found that the Ordinance forbid an activity the statute impliedly allowed. We have previously addressed a similar argument and established an analysis to be followed. In State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 594 P.2d 448 (1979), we reviewed a Snohomish County ordinance that prohibited the use of internal combustion motors on "certain lakes" in Snohomish County. Schillberg, 92 Wash.2d at 107, 594 P.2d 448. A person charged with violating the statute challenged the law "on the ground that it conflict[ed] with [chapter 88.12 RCW]." Schillberg, 92 Wash.2d at 107, 594 P.2d 448. We found no conflict and stated: The provisions of [chapter 88.12 RCW] are concerned with safe operation of motor boats and do not in any way grant permission to operate boats in any place. A statute will not be construed as taking away the power of a municipality to legislate unless this intent is clearly and expressly stated.... There being no express statement nor words from which it could be fairly inferred that motor boats are permitted on all waters of the state, no conflict exists and the ordinance is valid. Schillberg, 92 Wash.2d at 108, 594 P.2d 448 (citations omitted). Schillberg certainly lays to rest any claim that the Ordinance conflicts with chapter 88.12 RCW. However, we hold Schillbergcontrols the discussion of whether the Ordinance conflicts with the state's vessel registration statute, chapter 88.02 RCW. The Legislature did not enact chapter 88.02 RCW to grant PWC owners the right to operate their PWC anywhere in the state. The statute was enacted to raise tax revenues and to create a title system for boats. See RCW 88.02.120. RCW 88.02.020 provides, in pertinent part: "Except as provided in this chapter, no person may own or operate any vessel on the waters of this state Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 12 unless the vessel has been registered and displays a registration number and a valid decal in accordance with this chapter...." On its face, the statute prohibits operation of an unregistered vessel. Nowhere in the language of the statute can it be suggested that the statute creates an unabridged right to operate PWC in all waters throughout the state. Registration of a vessel is nothing more than a precondition to operating a boat. No unconditional right is granted by obtaining such registration. Statutes often impose preconditions which do not grant unrestricted permission to participate in an activity. Purchasing a hunting license is a precondition to hunting, but the license certainly does not allow hunting of endangered species, RCW 77.16.120, or hunting inside the Seattle city limits, see Seattle Municipal Code 12A.14.071 (banning discharge of a firearm). Reaching the age of 16 is a precondition to driving a car, but reaching 16 does not create an unrestricted right to drive a car however and wherever one desires. Schillberg states that the Legislature must expressly indicate an intent to preempt a particular field. In this case, the registration statute does not contain language preempting the regulation of this activity to the State. See RCW 46.08.020. We "will not interpret a statute to deprive a municipality of the power to legislate on particular subjects unless that clearly is the legislative intent." Southwick, Inc. v. City of Lacey, 58 Wash.App. 886, 891-92, 795 P.2d 712 (1990). The San Juan County Ordinance does not conflict with the state's vessel registration statute; it is a routine application of the police power. Weden, supra at 694-95 (footnotes omitted). There is no provision in Initiative 502 requiring a city to allow marijuana producers, processors, or retail outlets within its jurisdiction. There is also no express provision preempting the city's ability to regulate location of marijuana producing, marijuana processing and marijuana retail operations. As in Weden, the issuance of a license to produce, process or retail marijuana is a precondition to such use, but does not then automatically allow such use anywhere in the state. Thus, the city should retain its ability to either (a) ban such uses, or (b) establish appropriate zoning controls over these uses. Zoning controls could include reasonable "proximity" limitations - governing proximity to public parks, schools, libraries, residential districts and other public places.4 Such provisions would not conflict with the licensing provisions of the Liquor Control Board - unless the restrictions had the effect of eliminating all marijuana production, processing or retailing opportunities in the county, or restricting the number of retail sites available in the county to a number less than authorized by the LCB. 41-502 itself (Section 6(8) and Section 18) restrict location and "advertising" of marijuana outlets within "one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older." The Initiative also prohibits advertising on public transit vehicles and shelters, as well as "on or in a publicly owned or operated property." These provisions are analogous to the land use regulation of adult businesses. Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 13 D. Business Licensing and Regulation On the question of whether a city could adopt regulations pertaining to the business licensing, or regulating the operation, of marijuana producers, processors or retailers, a substantial risk of conflict exists. The LCB has adopted a comprehensive licensing and regulatory scheme for these operations. A prudent observation is that the LCB has, indeed, preempted the licensing of marijuana producers, processors and retailers, and has established detailed requirements for the operation of such functions. However, preemption of licensing does not mean that Initiative 502 or the LCB regulations have preempted the local land use jurisdiction of the city. A further reason to counsel caution in the area of business licensing is the conflict between federal and state law regarding marijuana. As noted above, marijuana (for any purpose) is an illegal drug listed as a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. § 801-971 (Section 812(c)). Strictly speaking, Initiative 502 authorizes production, processing, sale, possession and use of marijuana in violation of the federal law. It remains a risk that the U.S. Department of Justice may initiate an enforcement action if it determines that a local production, processing or retail operation is not being vigorously enforced under state law and is distributing illegal substances to minors or to an illicit market.5 In the realm of medical marijuana, Initiative Measure No. 692, approved by the voters of Washington State on November 30, 1998 and now codified as Chapter 69.51 A RCW, is entitled the "Washington State Medical Use of Marijuana Act" (hereafter the "Medical Use of Marijuana Act" or "MUMA"). MUMA creates an affirmative defense for "qualifying patients" to the charge of possession of marijuana, and provides that such patients can, as an alternative to growing marijuana for their own use, designate a "designated provider" who can provide (not sell) medical marijuana to "only one patient at a time." MUMA did not create any mechanism for the establishment or operation of "dispensaries," either storefront or regulated by state or local agencies. Consequently, the consensus of opinion, including that of the Washington State Department of Health, was that dispensaries were not legal or authorized under MUMA. In 2011, the Legislature adopted E2SSB 5073. As originally passed by the Legislature, the bill contained extensive provisions that provided for state registration and licensing of medical marijuana dispensaries, and further authorized the formation of "collective gardens." A "collective garden" allows up to ten (10) "qualified patients" to jointly 5 Memorandum, U.S. Attorney's Office, "Guidance Regarding Marijuana Enforcement" (August 29, 2013). Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 14 operate a medical marijuana grow operation, with up to 15 marijuana plants per person (up to a total maximum of 45 plants per garden). The Governor vetoed the provisions of E2SSB 5073 pertaining to "dispensaries" and other provisions — essentially on the grounds that, under existing federal law, marijuana in all forms is a Schedule I controlled substance subject to prosecution. Her concern was that, under the bill as written, state employees charged with administering the licensing of medical marijuana dispensaries could be prosecuted for violation of the federal Controlled Substances Act. Because of this veto, no meaningful provisions remain in MUMA authorizing medical marijuana "dispensaries." Thus, the rationale remains that dispensaries continue to be illegal — or at least without statutory sanction.6 Regarding "collective gardens," no statutory provisions provide mandatory directives regarding local land use regulation, zoning limitations or business regulation. Consequently, these matters are subject to local regulation and control. Section 1102 of E2SSB 5073 expressly preserved the ability of local governments to regulate medical marijuana facilities and operations: NEW SECTION. Sec. 1102. (1) 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. Nothing in this 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.' If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. With the Governor's veto of the provisions of E2SSB 5073 regarding licensing and registration of "dispensaries," the underlined clause above was found by the Governor to be "without meaning." E2SSB 5073, Governor's Veto Message, page 43. Consequently, an argument exists that, under MUMA and in light of federal law, 6 However, on July 18, 2011, the City of Seattle adopted Council Bill No. 117229. The Bill recites the existing federal prohibitions on marijuana, but acknowledges the city's "low priority" regarding investigation and prosecution of marijuana offenses (per Initiative 75 adopted by Seattle voters on September 16, 2003). The Bill acknowledges the existence of "numerous" medical marijuana dispensaries within the City of Seattle, and states that medical marijuana dispensaries would be permitted, subject to compliance with existing zoning regulations, health and safety codes, building codes, etc. The highlighted language was the subject of a portion of the Governor's veto message. Her conclusion was that, with the veto of all provisions of E2SSB 5073 regarding licensing of "dispensaries," the underlined portion had no effect ("The provisions in Section 1102 that local governments' zoning requirements cannot `preclude the possibility of siting licensed dispensers within the jurisdiction' are without meaning in light of the vetoes of sections providing for such licensed dispensers. It is with this understanding that I approve Section 1102.")(E2SSB 5073, page 43). Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 15 dispensaries remain illegal. In consideration of the above, the City Council of the City of Yakima in 2012 adopted the following amendment to Chapter 15.01 YMC: 15.01.035 Illegal uses prohibited. A. General. No use that is illegal under local, state or federal law shall be allowed in any zone within the city. B. Specific Application—Medical Marijuana Dispensaries and Collective Gardens. Until such time that this code is amended to provide specific provisions and land use controls allowing and regulating dispensaries of cannabis and/or collective gardens for the production, distribution and dispensing of cannabis for medical uses, all as further defined and set forth in Chapter 69.51A RCW and E2SSB 5073, Laws of 2011 of the State of Washington, such uses are not allowed in any zone within the city. For purposes of this section, "dispensary" means any person, entity, site, location, facility, business, cooperative, collective, whether for profit or not for profit, that distributes, sells, dispenses, transmits, packages, measures, labels, selects, processes, delivers, exchanges or gives away cannabis for medicinal or other purposes. (Ord. 2012-03 § 2, 2012). A significant ruling in the area of medical marijuana and a city's ability to exercise its land use jurisdiction to ban medical marijuana was recently issued by the Supreme Court of California. In City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 300 P.3d 494 (2013), the court ruled: The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not. Both federal and California laws generally prohibit the use, possession, cultivation, transportation, and furnishing of marijuana. However, California statutes, the Compassionate Use Act of 1996 (CUA; Health & Saf.Code, Section 11362.5, added by initiative, Prop. 15, as approved by voters, Gen. Elec. (Nov. 5, 1996)) and the more recent Medical Marijuana Program (MMP; § 11362.7 et seq., added by Stats. 2003, ch. 875, § 2, pp. 6422, 6424), have removed certain state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate medical purposes. Among other things, these statutes exempt the "collective[ ] or cooperative[ ] cultiva[tion]" of medical marijuana by qualified patients and their designated caregivers from prosecution or abatement under specified state criminal and nuisance laws that would otherwise prohibit those activities. (§ 11362.775.) The California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, "all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7.) This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders, and preemption by state law is not lightly presumed. In the exercise of its inherent land use power, the City of Riverside (City) has declared, by zoning ordinances, that a "[m]edical marijuana dispensary"—"[a] facility where marijuana is made available for medical purposes in accordance with" the CUA (Riverside Municipal Code (RMC), § 19.910.140)—is a prohibited use of land within the city and may be abated as a public nuisance. (RMC, §§ 1.01.110E, 6.15.020Q, 19.150.020 & table 19.150.020 A.) The City's ordinance also Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 16 bans, and declares a nuisance, any use that is prohibited by federal or state law. (RMC, §§ 1.01.110E, 6.15.020Q, 9.150.020.) Invoking these provisions, the City brought a nuisance action against a facility operated by defendants. The trial court issued a preliminary injunction against the distribution of marijuana from the facility. The Court of Appeal affirmed the injunctive order. Challenging the injunction, defendants urge, as they did below, that the City's total ban on facilities that cultivate and distribute medical marijuana in compliance with the CUA and the MMP is invalid. Defendants insist the local ban is in conflict with, and thus preempted by, those state statutes. As we will explain, we disagree. We have consistently maintained that the CUA and the MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the Health and Safety Code. Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders. We must therefore reject defendants' preemption argument, and must affirm the judgment of the Court of Appeal. City of Riverside, supra at 737-38 (footnotes omitted). The court concluded: We thus conclude that neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions. Accordingly, we reject defendants' challenge to Riverside's MMD ordinances. As we have noted, the CUA and the MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal -state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state -level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a "right" of convenient access to marijuana for medicinal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries. City of Riverside, supra at 762-63 (footnotes omitted). Like California, MUMA removed criminal sanctions from qualified patients and physicians who complied with the law. California constitutional provisions and statutes closely mirror those of the State of Washington with regard to local legislation and preemption. Therefore, the reasoning used by the City of Riverside court in upholding the city's ban of medical marijuana dispensaries supports the city's jurisdiction to ban medical marijuana dispensaries and collective gardens. Business licensing - essentially the regulation and positive issuance of a permit to conduct a business in violation of federal law - is especially problematic. Courts in other jurisdictions have held that local legislation authorizing conduct and uses in violation of Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 17 the federal Controlled Substances Act are in conflict with such federal legislation and thus preempted by the federal law (cf., Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010)). In Emerald, the court held that a provision of Oregon Medical Marijuana Act affirmatively authorizing the use of medical marijuana was preempted by Federal Controlled Substances Act, which explicitly prohibited marijuana use without regard to medicinal purpose. E. City of Yakima — Current Code The provisions in YMC 15.01.035 prohibit any use within the City of Yakima that is illegal under local, state or federal law. Recreational use of marijuana remains unlawful under federal law. Under current code, the production, processing, sale and use of marijuana for any purpose would not be permitted. The current code thus operates as a form of "moratorium" enacted as code. The provisions of YMC 15.01.035 are not in conflict with the federal Controlled Substances Act, as both the local code and federal law prohibit such use of marijuana. The issue will be whether YMC 15.01.035 "conflicts" with the general law of Initiative 502 and is thus preempted. In this regard, several factors argue that maintaining the ban would not conflict with Initiative 502: • Initiative 502 does not expressly state that it preempts the field with regard to land use regulation of marijuana production, processing and retailing. (The Initiative, however, does preempt the field with regard to criminal prosecution for use or possession of marijuana in the amounts decriminalized by the Initiative.) • The only mandate placed upon the Liquor Control Board is to adopt rules defining the maximum number of retail outlets "in each county" of the State of Washington. There is no minimum or maximum number of retail outlets mandated for cities within such counties. Conceivably, a city may ban such use, leaving the locations for retail outlets confined to the county (or other cities that have not banned such use). • Any legislation by the city that bans marijuana production, processing and retailing within the city limits does not "prohibit what the legislature has allowed," because the Initiative does not mandate that any of these production, processing or retailing functions occur within any city. The Initiative speaks to a maximum number of retail outlets that "may" be located within each county of the state. If such uses are banned in any Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 18 city, the purposes of the Initiative are not frustrated because such uses can be located within the county (or in any other city in which they are not banned). • There is no mandate at all in the Initiative regarding a minimum number of producers or processors anywhere within the state. • There is no express provision of the Initiative stating that cities cannot ban such operations from the city. • While the provisions of the Initiative arguably preempt the field of business licensing of marijuana producers, processors and retailers, the provisions of YMC 15.01.035 deal with land uses within the city — not business licensing. • Under the Supremacy Clause of the federal Constitution, federal law will prevail over any conflicting state or local law. Federal law currently lists marijuana as a Schedule I controlled substance. F. Recommendation With these parameters in mind, the following options are available: (a) Maintain Status Quo. Status quo means that YMC 15.01.035 remains in effect as originally adopted. Thus, no use that is illegal under local, state or federal law will be allowed in the city. This code section contains a specific ban for medical marijuana dispensaries and collective gardens, but no specific language is used to ban production, processing and retailing of "recreational marijuana." (b) Amend Current Code to Ban Production, Processing and Retailing of Recreational Marijuana. This option entails an amendment of YMC 15.01.035 to add a new subsection specifically banning the production, processing and retailing of marijuana within the City of Yakima. This is preferable to simply maintaining the status quo discussed in option (a) above in that it provides further clarity and precision and is consistent with the current subsection banning medical marijuana dispensaries Memorandum - Marijuana - Land Use Regulation December 24, 2013 Page 19 and collective gardens. This option entails an amendment to Title 15 YMC and would require public hearings before the Planning Commission and City Council. It would be advisable to adopt the amendment to be effective on or before November 30, 2013. (c) Develop and Adopt Land Use (Zoning) Controls for Production, Processing and Retailing of Recreational Marijuana and/or Medical Marijuana. The city may develop zoning codes defining areas where marijuana production, processing and/or retailing may be conducted. For example, it is possible to limit such activities to industrial or commercial zones, or an overlay zone within an industrial zone, or other areas. Licensed marijuana production, processing and retailing would remain subject to the 1,000 -foot limitations of Initiative 501, and would also be subject to the city's designated zoning requirements. Likewise, the City Council may wish to consider appropriate zoning designations for medical marijuana dispensaries and collective gardens. If any of these zoning options are considered, amendments to the city's zoning codes (Title 15 YMC) will require public hearings before the Planning Commission and City Council. Because the LCB indicates it will begin issuing marijuana production, processing and retail licenses on December 1, 2013, any ordinance amending the city's zoning codes would have to be adopted so as to be effective no later than November 30, 2013. (H) MEMORANDUM DATED AUGUST 29, 2013 FROM U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, REGARDING MARIJUANA ENFORCEMENT IN STATES OF COLORADO AND WASHINGTON. The Deputy Attorney General U.S. of rr J en t of Justice Office of t_I Te Deputy Attorney General Washington, DG. 20530 August 29, 2013 MEMORANDUM FOR ALL UNITED STAVES ATTORNEYS FROM: James M. Cole ,,ry;"; Deputy Attorneyieneral SUBJECT: Guidance Regarding Mari.uana Enforcement In October 2009 and June 2011, the Department issued guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act (CSA). This memorandum updates that guidance in light of state ballot initiatives that legalize under state law the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale. The guidance set forth herein applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning marijuana in all states. As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenueto large-scale criminal enterprises, gangs, and cartels. The Department of Justice is committed to enforcement of the CSA consistent with those determinations. The Department is also committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way. In furtherance of those objectives, as several states enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government: Preventing the distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; Preventing state -authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; Memorandum for All United States Attorneys Page 2 Subject: Guidance Regarding Marijuana Enforcement • Preventing violence and the use of firearms in the cultivation and distribution of marijuana; • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and • Preventing marijuana possession or use on federal property. These priorities will continue to guide the Department's enforcement of the CSA against marijuana -related conduct. Thus, this memorandum serves as guidance to Department attorneys and law enforcement to focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with any one or more of these priorities, regardless of state law.' Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower -level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above. The enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal -state approach to narcotics enforcement. The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana -related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity 1 These enforcement priorities are listed in general terms; each encompasses a variety of conduct that may merit civil or criminal enforcement of the CSA. By way of example only, the Department's interest in preventing the distribution of marijuana to minors would call for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors; when marijuana or marijuana -infused products are marketed in a manner to appeal to minors; or when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors, Memorandum for All United States Attorneys Page 3 Subject: Guidance Regarding Marijuana Enforcement must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities. In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above. Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal -state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana -related activity. If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms. The Department's previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above. As explained above, however, both the existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests. Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system. A marijuana operation's large scale or for-profit nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority. The primary question in all cases — and in all jurisdictions — should be whether the conduct at issue implicates one or more of the enforcement priorities listed above. Memorandum for All United States Attorneys Page 4 Subject: Guidance Regarding Marijuana Enforcement As with the Department's previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department's authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA. Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances. This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest. cc: Mythili Raman Acting Assistant Attorney General, Criminal Division Loretta E. Lynch United States Attorney Eastern District of New York Chair, Attorney General's Advisory Committee Michele M. Leonhart Administrator Drug Enforcement Administration H. Marshall Jarrett Director Executive Office for United States Attorneys Ronald T. Hosko Assistant Director Criminal Investigative Division Federal Bureau of Investigation (I) LETTER FROM CITY ATTORNEY DATED DECEMBER 10, 2013 TO WASHINGTON STATE ATTORNEY GENERAL'S OFFICE. LEGA L 200 South "1'"/ Yaakieaaa, Wets 989( December 10, 2013 Mr. Jeff Even, Deputy Solicitor General Office of the Attorney General Solicitor General Division P.O. Box 40100 Olympia, WA 98504-0100 28°30 Re: Attorney General Office's Request for Public Input, Opinion Docket No. 13-11-01, Request by Sharon Foster, Chair, Washington State Liquor Control Board (WSLCB) — Response of City of Yakima Dear Mr. Even: The City of Yakima appreciates the opportunity to respond to the Request for Public Input issued November 5, 2013, by your office. The Request for Public Input invited affected parties to submit analysis and argument pertaining to certain land use jurisdiction questions arising out of the passage of Initiative 502, the "recreational marijuana" initiative approved by the voters on November 6, 2012. The specific questions posed are: 1. Are local governments preempted by state law from outright banning the location of a WSLCB licensed marijuana producer, processor, or retailer within their jurisdiction? 2. May a local government establish land use regulations (in excess of the 1- 502 buffer and other WSLCB requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction? The City of Yakima answers that cities in the State of Washington are not preempted by state law from outright banning of WSLCB-licensed marijuana production, processing, and retailing uses within their respective jurisdictions, and are not preempted from establishing land use regulations such as zoning limiting or regulating location of such uses.' A. Land Use Regulatory Authority of Cities. Any analysis of the issues presented begins with the land use regulatory authority given to cities under the Washington State Constitution. The ability of cities to make and impose land use regulations is established in the state constitution. Constitution Article 11, § 11 provides: "Any county, city, town or township may make and enforce within its limits all such local police, 1 As further noted below, the City of Yakima's analysis is limited to the jurisdiction of cities (and towns), and is not intended to address the land use jurisdiction of counties or other municipal corporations of the State of Washington. A different analysis may well apply to counties, especially as it relates to land use regulation of WSLCB-licensed marijuana retailers. k ma 111 01,0 4 PI'Us" 'a "d Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 2 sanitary and other regulations as are not in conflict with general laws." This authority, and the interplay with other state legislation, was explained as follows: Municipalities are constitutionally vested with the authority to enact ordinances in furtherance of the public health, safety, morals, and welfare. However, "the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction." Lenci v. Seattle, 63 Wash.2d 664, 669, 388 P.2d 926 (1964). Whether there is room for concurrent jurisdiction depends upon the legislative intent to be ascertained from an examination of the statute involved and the interaction between the state and local provisions. Where the Legislature does not specifically state its intent to occupy a given field, such intent can be inferred from "the purposes of the legislative enactment and the facts and circumstances upon which the enactment was intended to operate." Lenci, at 670, 388 P.2d 926. Baker v. Snohomish County Dept. of Planning and Community Development, 68 Wash.App. 581, 585, 841 P.2d 1321, review denied, 121 Wash.2d 1027, 854 P.2d 1085 (1993); Brown v. City of Yakima, 116 Wash.2d 556, 807 P.2d 353 (1991) (citations omitted). These principles were also reiterated in a recent Attorney General's Opinion, The Honorable Deborah Eddy, Wash. AGO 2012 No.1 (2012), pages 2-3: You have asked whether RCW 49.60.218 would preempt a first class city's local ordinance requiring accommodation of additional types of animals in food establishments. Consideration of this question begins with the principle that first class cities may make laws consistent with and subject to the Constitution and laws of this state[.] Const. art. XI, § 10. Cities have constitutional authority to enact local police, sanitary and other regulations as are not in conflict with general laws. Const. art. XI, § 11. This constitutional grant of authority is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject -matter is local, and the regulation reasonable and consistent with the general laws. Lenci v. City of Seattle, 63 Wn.2d 664, 667, 388 P.2d 926 (1964) (quoting Detamore v. Hindley, 83 Wash. 322, 326, 145 P. 462 (1915)). Ordinances are presumed valid and grants of municipal power are liberally construed. Heinsma v. City of Vancouver, 144 Wn.2d 556, 561, 29 P.3d 709 (2001). An ordinance will be deemed invalid if (1) the legislature expressed an intent to occupy the field addressed by the ordinance or (2) the ordinance conflicts with a statute. State v. Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009). If the legislature has expressed its intention to occupy an entire field or if such intent is necessarily implied, ordinances enacted on the same topic are preempted. Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010). If the legislature has not expressed an intent to occupy an entire field, the purpose of the statute and the facts and circumstances to which the statute was intended to apply must be considered. Id. The Washington Supreme Court will not interpret a statute to deprive a municipality of the power to legislate on a particular subject unless that clearly is the legislative intent. Kirwin, 165 Wn.2d at 826 (quoting HJS Dev., Inc. v. Pierce Cnty., 148 Wn.2d 451, 480, 61 P.3d 1141 (2003)). Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 3 In Weden v. San Juan County, 135 Wash.2d 678, 958 P.2d 273 (1998), the county commissioners adopted a ban on motorized personal watercraft ("PWC") in the marine waters of San Juan County. Owners of PWCs filed suit contending that the ban conflicted with the state's Recreational Vehicle Registration Law, Chapter 88.02 RCW and was thus in violation of Constitution Article XI, Section 11. The Weden court observed: Article XI, section 11 requires a local law yield to a state statute on the same subject matter if that statute "preempts the field, leaving no room for concurrent jurisdiction," or "if a conflict exists such that the two cannot be harmonized." Brown v. City of Yakima, 116 Wash.2d 556, 559, 561, 807 P.2d 353 (1991). Respondents do not argue that the Legislature has preempted the field of conduct governed by the Ordinance but, rather, contend the Ordinance conflicts with various state laws. "In determining whether an ordinance is in `conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 [(1923)]. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits,' State v. Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246 [(1937)]. City of Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292, 92 A.L.R.2d 192 (1960). An ordinance must yield to state law only "if a conflict exists such that the two cannot be harmonized." Brown, 116 Wash.2d at 561, 807 P.2d 353; accord Schampera, 57 Wash.2d at 111, 356 P.2d 292 ("Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not to be deemed inconsistent because of mere lack of uniformity in detail. Bodkin v. State, [132 Neb. 535], 272 N.W. 547 [(1937)]."). In this case, we must examine whether the Ordinance conflicts with chapter 88.02 RCW, chapter 88.12 RCW, chapter 90.58 RCW, chapter 43.99 RCW, or the public trust doctrine. Weden, supra at 693. Addressing the claims of the PWC owners, the court held: The trial court found the Ordinance conflicted with chapter 88.02 RCW, the state vessel registration statute. In essence, the trial court found that the Ordinance forbid an activity the statute impliedly allowed. We have previously addressed a similar argument and established an analysis to be followed. In State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 594 P.2d 448 (1979), we reviewed a Snohomish County ordinance that prohibited the use of internal combustion motors on "certain lakes" in Snohomish County. Schillberg, 92 Wash.2d at 107, 594 P.2d 448. A person charged with violating the statute challenged the law "on the ground that it conflict[ed] with [chapter 88.12 RCW]." Schillberg, 92 Wash.2d at 107, 594 P.2d 448. We found no conflict and stated: Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 4 The provisions of [chapter 88.12 RCW] are concerned with safe operation of motor boats and do not in any way grant permission to operate boats in any place. A statute will not be construed as taking away the power of a municipality to legislate unless this intent is clearly and expressly stated.... There being no express statement nor words from which it could be fairly inferred that motor boats are permitted on all waters of the state, no conflict exists and the ordinance is valid. Schillberg, 92 Wash.2d at 108, 594 P.2d 448 (citations omitted). Schillberg certainly lays to rest any claim that the Ordinance conflicts with chapter 88.12 RCW. However, we hold Schillberg controls the discussion of whether the Ordinance conflicts with the state's vessel registration statute, chapter 88.02 RCW. The Legislature did not enact chapter 88.02 RCW to grant PWC owners the right to operate their PWC anywhere in the state. The statute was enacted to raise tax revenues and to create a title system for boats. See RCW 88.02.120. RCW 88.02.020 provides, in pertinent part: "Except as provided in this chapter, no person may own or operate any vessel on the waters of this state unless the vessel has been registered and displays a registration number and a valid decal in accordance with this chapter...." On its face, the statute prohibits operation of an unregistered vessel. Nowhere in the language of the statute can it be suggested that the statute creates an unabridged right to operate PWC in all waters throughout the state. Registration of a vessel is nothing more than a precondition to operating a boat. No unconditional right is granted by obtaining such registration. Statutes often impose preconditions which do not grant unrestricted permission to participate in an activity. Purchasing a hunting license is a precondition to hunting, but the license certainly does not allow hunting of endangered species, RCW 77.16.120, or hunting inside the Seattle city limits, see Seattle Municipal Code 12A.14.071 (banning discharge of a firearm). Reaching the age of 16 is a precondition to driving a car, but reaching 16 does not create an unrestricted right to drive a car however and wherever one desires. Schillberg states that the Legislature must expressly indicate an intent to preempt a particular field. In this case, the registration statute does not contain language preempting the regulation of this activity to the State. See RCW 46.08.020. We "will not interpret a statute to deprive a municipality of the power to legislate on particular subjects unless that clearly is the legislative intent." Southwick, Inc. v. City of Lacey, 58 Wash.App. 886, 891-92, 795 P.2d 712 (1990). The San Juan County Ordinance does not conflict with the state's vessel registration statute; it is a routine application of the police power. Weden, supra at 694-95 (footnotes omitted). Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 5 B. Initiative 502. On November 6, 2012, voters in the State of Washington approved Initiative 502. The Initiative decriminalized possession, delivery, and use of specified amounts of marijuana, and authorized the Washington State Liquor Control Board to promulgate regulations pertaining to licensing of marijuana producers, processors, and retailers, as well as testing, advertising, packaging, and security of marijuana products. New Section 6(8) and New Section 18 of 1-502 set forth some limitations: NEW SECTION. Sec. 6. (8) The state liquor control board shall not issue a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older. *** NEW SECTION. Sec. 18. (1) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertisement of marijuana, useable marijuana, or a marijuana -infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. (2) Merchandising within a retail outlet is not advertising for the purposes of this section. (3) This section does not apply to a noncommercial message. (4) The state liquor control board shall fine a licensee one thousand dollars for each violation of subsection (1) of this section. Fines collected under this subsection must be deposited into the dedicated marijuana fund created under section 26 of this act. Additional rules are required to determine the amounts of marijuana and marijuana -infused products that can be held by marijuana producers, processors, and retailers. Rules must be developed regarding packaging, THC levels, classes of marijuana and marijuana -infused products, establishing "reasonable time, place and manner" restrictions regarding advertising, times for transport and delivery of marijuana and marijuana -infused products, and establishing criteria for testing laboratories. Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 6 New Section 13 pertains to retail outlets: NEW SECTION. Sec. 13. There may be licensed, in no greater number in each of the counties of the state than as the state liquor control board shall deem advisable, retail outlets established for the purpose of making useable marijuana and marijuana -infused products available for sale to adults aged twenty-one and over. Retail sale of useable marijuana and marijuana -infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer or retail outlet employee, shall not be a criminal or civil offense under Washington state law. (Emphasis added.) Also, New Section 10 further describes the methodology to be used by the WSLCB to determine the "maximum number of retail outlets that may be licensed in each county:" NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to implement the following: (1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market... (Emphasis added). This section does not, by its terms, limit the ability of a city to impose zoning restrictions on the location of such establishments. Also, it is important to note that the law does not mandate that marijuana retail outlets be located in any city; rather, the law requires the WSLCB to determine a "maximum" number of retail outlets "that may be licensed in each county." It is also important to note that there is no provision in Initiative 502 limiting the number of licenses for marijuana production and/or processing operations within each county. Thus, while the number of marijuana retail outlets is subject to a maximum number per county, there is no similar limitation for production or processing. Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 7 C. Liquor Control Board Rule -Making. Initiative 502 directed the WSLCB to develop and promulgate rules implementing Initiative 502. These rules were issued on or about November 18, 2013, and codified at Chapter 314-55 WAC. In June 2013, the WSLCB issued the following "FAQ" and response: Can local jurisdictions prevent me from opening a location? The LCB has no authority to dictate zoning requirements to local governments. Municipalities could conceivably zone marijuana/related businesses out of their geographical area, check with your local authority to understand their requirements. This particular FAQ and response was subsequently withdrawn from the WSLCB web site. The WSLCB proceeded to propose and adopt regulations. WAC 314-55-020(11) describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. (Emphasis added.) In short, issuance of a license by WSLCB does not constitute approval of a marijuana production, processing, or retail facility at a location banned by the city. This is a significant recognition by WSLCB of the land use regulation authority of cities and counties. The interpretation of the code and regulations by the agency charged with enforcing such codes and regulations is given deference by the courts. Port of Seattle v. Pollution Control Hearings Board, 151 Wash.2d 568, 90 P.3d 659 (2004) ("...the agency charged with interpreting and applying the water code, its interpretation of a provision deserves deference, so long as that interpretation is not contrary to the plain language of the statute"); Cobra Roofing Service, Inc. v. Department of Labor and Industries, 122 Wash. App. 402, 97 P.3d 17 (2004). WAC 314-55-081 pertains to designation of the maximum number of retail outlets per county: WAC 314-55-081 Who can apply for a marijuana retailer license? (1) Using estimated consumption data and population data obtained from the office of financial management (OFM) population data, the liquor control board will determine the maximum number of marijuana retail locations per county. The number of retail locations will be determined using a method that distributes the number of locations proportionate to the most populous cities within each county. Locations not assigned to a specific city will be at large. At large locations can be used for unincorporated areas in the county or in cities within the county that have no retail licenses designated. Once the number of locations per city and at large have been identified, the eligible applicants will be selected by lottery in the event the number of applications exceeds the allotted amount for the cities and county. Any lottery conducted by the board will be witnessed by an independent third party. Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 8 (2) The number of marijuana retail licenses determined by the board can be found on the liquor control board web site at www.liq.wa.gov. (3) Any entity and/or principals within any entity are limited to no more than three retail marijuana licenses with no multiple location licensee allowed more than thirty-three percent of the allowed licenses in any county or city. (4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty -day calendar window beginning with the effective date of this section. In order for a marijuana retailer license application to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana retailer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. Under these rules, if a city enacts a ban on marijuana production, processing, and retailing, the effect would be to convert the number of "assigned" retail licenses to "at large" licenses. These "at large" locations could be sited in unincorporated areas of the county "or in cities within the county that have no retail licenses designated." Thus, the enactment of a city-wide ban would not change the number of "maximum" retail licenses attributed to the county, but would simply rearrange "location" of the licensed sites and convert status of such licenses from "assigned" to "at large." D. Preemption Issues. 1. No Express Preemption. There is no provision in Initiative 502 stating that the State of Washington preempts local land use regulation of marijuana production, processing and retail uses. As held in the case of Weden v. San Juan County, 135 Wash.2d 678, 695, 958 P.2d 273 (1998): [State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 594 P.2d 448 (1979)] states that the Legislature must expressly indicate an intent to preempt a particular field. In this case, the registration statute does not contain language preempting the regulation of this activity to the State. See RCW 46.08.020. We "will not interpret a statute to deprive a municipality of the power to legislate on particular subjects unless that clearly is the legislative intent." Southwick, Inc. v. City of Lacey, 58 Wash.App. 886, 891-92, 795 P.2d 712 (1990). There is no provision in Initiative 502 that mandates location of licensed marijuana production or processing uses in any county or city within the state. The only direction (provided in Sections 10 and 13 of Initiative 502) states that retail uses "may be licensed, in no greater number in each of the counties of the state than as the state liquor control board shall deem advisable...." Even for retail licenses, there is no mandated "minimum" number of establishments anywhere in any county or city. The Initiative's requirement that there "may" be a "maximum" Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 9 number of licensed marijuana retail outlets "in each county" cannot be construed to require a "minimum" number of retail outlets in any "city." Moreover, there is express recognition of the land use regulatory authority of local governments in the regulations implementing Initiative 502. WAC 314-55-020(11) describes the license permit process and includes the following limitation: (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. The issuance of a marijuana license is expressly made subject to the local government's zoning codes, building and fire codes and business licensing requirements. In other words, the issuance of a marijuana license does not "preempt" the local jurisdiction's land use regulations. As noted above, the interpretation of the code and regulations by the agency charged with enforcing such codes and regulations is given deference by the courts. Port of Seattle v. Pollution Control Hearings Board, 151 Wash.2d 568, 90 P.3d 659 (2004); Cobra Roofing Service, Inc. v. Department of Labor and Industries, 122 Wash. App. 402, 97 P.3d 17 (2004). No Implied Preemption. As previously quoted above, the principles of local legislation and preemption under state law are summarized as follows: Ordinances are presumed valid and grants of municipal power are liberally construed. Heinsma v. City of Vancouver, 144 Wn.2d 556, 561, 29 P.3d 709 (2001). An ordinance will be deemed invalid if (1) the legislature expressed an intent to occupy the field addressed by the ordinance or (2) the ordinance conflicts with a statute. State v. Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009). If the legislature has expressed its intention to occupy an entire field or if such intent is necessarily implied, ordinances enacted on the same topic are preempted. Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010). If the legislature has not expressed an intent to occupy an entire field, the purpose of the statute and the facts and circumstances to which the statute was intended to apply must be considered. Id. The Washington Supreme Court will not interpret a statute to deprive a municipality of the power to legislate on a particular subject unless that clearly is the legislative intent. Kirwin, 165 Wn.2d at 826 (quoting HJS Dev., Inc. v. Pierce Cnty., 148 Wn.2d 451, 480, 61 P.3d 1141 (2003)). The Honorable Deborah Eddy, Wash. AGO 2012 No.1 (2012), pages 2-3. The "purpose" of Initiative 502 and "the facts and circumstances to which the statute was intended to apply" must be addressed. Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 10 Section 1 of Initiative 502 states the "intent" of the law: NEW SECTION. Sec. 1. The people intend to stop treating adult marijuana use as a crime and try a new approach that: (1) Allows law enforcement resources to be focused on violent and property crimes; (2) Generates new state and local tax revenue for education, health care, research, and substance abuse prevention; and (3) Takes marijuana out of the hands of illegal drug organizations and brings it under a tightly regulated, state -licensed system similar to that for controlling hard alcohol. This measure authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana. Nothing in a city's ban of marijuana licenses conflicts with the above purposes of the legislation. A ban would as easily allow law enforcement to focus on violent and property crimes. Transactions in marijuana by illegal drug organizations would remain illegal. New state revenues would not be affected because the number of licensed retail outlets assigned to each county would remain unchanged. The city that bans retail marijuana outlets may be deprived of its share of local retail sales tax, but there is no mandate under law requiring a city to accept a land use it has the right to refuse, and no law requiring acceptance of a land use because of the retail sales tax it might generate. A city's decision to ban marijuana licensed uses for production, processing and retailing does not mean that individuals in that city will be subject to criminal or civil prosecution for individual possession, use and consumption of marijuana that is in compliance with state law. The integrity of the state's criminal and civil penalty codes will remain intact. It may be assumed that opponents of local government's ability to adopt a local ban of marijuana licenses will argue that one of the purposes, or "facts and circumstances" in which the legislation was intended to apply, is found in Section 10(2) of the Initiative: NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that establish the procedures and criteria necessary to implement the following: Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 11 (1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana -infused products to discourage purchases from the illegal market... It should be noted that the "provision of adequate access to licensed sources" of marijuana is a factor to be used to determine the "maximum number of retail outlets that may be licensed in each county." Nothing in Section 10 mandates location of retail outlets in any city within each county. Nothing in Section 10 creates a "right" of access to any licensed marijuana retail outlet in any city. See, City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 300 P.3d 494 (2013) (upholding City of Riverside's ban of medical marijuana dispensaries). The provision of "adequate access" to licensed sources of marijuana is premised upon an allocation of sources of licensed marijuana "in each county." According to WAC 314-55-081, the allocation of licensed marijuana retail outlets is determined as follows: (1) Using estimated consumption data and population data obtained from the office of financial management (OFM) population data, the liquor control board will determine the maximum number of marijuana retail locations per county. The number of retail locations will be determined using a method that distributes the number of locations proportionate to the most populous cities within each county. Locations not assigned to a specific city will be at large. At large locations can be used for unincorporated areas in the county or in cities within the county that have no retail licenses designated. Once the number of locations per city and at large have been identified, the eligible applicants will be selected by lottery in the event the number of applications exceeds the allotted amount for the cities and county. Any lottery conducted by the board will be witnessed by an independent third party. If a city acts to ban licensed marijuana retail outlets, the effect is to convert the city allocation to "at large" licenses. These can then locate in "unincorporated areas of the county or in cities within the county that have no retail licenses designated." Id. Market factors likely would operate so that these "at large" retail outlets would choose to locate in areas of the unincorporated county in the Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 12 vicinity of the city that elects to ban such operations. Persons desiring to purchase marijuana would have "adequate access" to legal sources of marijuana. The convenience of "adequate access" does not demand immediate access in each city. Indeed, both Initiative 502 and the implementing regulations restrict the location of licensed marijuana businesses. The term "adequate access" is subjective and invites a construction justifying restriction of access. Initiative 502 contains the following restrictions regarding location of licensed uses: NEW SECTION. Sec. 6. *** (8) The state liquor control board shall not issue a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older. The question is whether such restrictions are sufficient and globally effective to address all secondary effects associated with marijuana production, processing and retailing in every city. They are not. "Residential areas" or "residential zoned districts" are not included in the list of protected areas — areas typified by homes for families with children.2 As observed by the court in City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 755-56, 300 P.3d 494 (2013): The presumption against preemption is additionally supported by the existence of significant local interests that may vary from jurisdiction to jurisdiction. Amici curiae League of California Cities et al. point out that "California's 482 cities and 58 counties are diverse in size, population, and use." As these amici curiae observe, while several California cities and counties allow medical marijuana facilities, it may not be reasonable to expect every community to do so. For example, these amici curiae point out, "[s]ome communities are predominantly residential and do not have sufficient commercial or industrial space to accommodate" facilities that distribute medical marijuana. Moreover, these facilities deal in a substance which, except for legitimate medical use by a qualified under a physician's authorization, is illegal under both federal and state law to possess, use, furnish, or cultivate, yet is widely desired, bought, sold, cultivated, and employed as a recreational drug. Thus, facilities that dispense medical marijuana may pose a danger of increased crime, congestion, blight, and drug abuse,3 and the extent of this danger may 2 Nor is "advertising" of marijuana restricted within 1,000 feet of residential areas. Initiative 502(18). 3 Footnote 9 to the City of Riverside decision. This footnote states: Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 13 vary widely from community to community. Thus, while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens. (See, e.g., Great Western Shows, supra, 27 Cal.4th 853, 866-867, 118 Cal.Rptr.2d 746, 44 P.3d 120 [noting, in support of holding that state gun show regulations did not occupy field, so as to preclude Los Angeles County's complete ban of gun shows on county property, that firearms issues likely require different treatment in urban, as opposed to rural, areas].) Under these circumstances, we cannot lightly assume the voters or the Legislature intended to impose a "one size fits all" policy, whereby each and every one of California's diverse counties and cities must allow the use of local land for such purposes. By way of further example, the regulations define "public park" as follows: (17) "Public park" means an area of land for the enjoyment of the public, having facilities for rest and/or recreation, such as a baseball diamond or basketball court, owned and/or managed by a city, county, state, federal government, or metropolitan park district. Public park does not include trails. WAC 314-55-010(17). Many communities have publicly owned recreational trails intended for use by children and families. Many communities also benefit from baseball fields and facilities owned and operated by private nonprofit organizations such as Little League. Under the above definition of "public park," location of marijuana businesses and stores in the vicinity of such facilities would not be restricted. For example, when considering the 2011 amendment to section 11362.83, as proposed by Assembly Bill No. 1300 (2011-2012 Reg. Sess.), the Senate Committee on Public Safety noted the bill author's assertions about the "controversial picture of dispensaries," as revealed in "[a] scan of headlines." As reported by the committee, the bill author recounted that some dispensaries "have been caught selling marijuana to people not authorized to possess it, many intentionally operate in the shadows without any business licensure or under falsified documentation, and some have been the scene of violent robberies and murder." (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1300 (2011-2012 Reg. Sess.), as amended June 1, 2011, pp. E—F.) Courts of Appeal dealing with local regulation of medical marijuana dispensaries have cited similar concerns. (See, e.g., Hill, supra, 192 Cal.App.4th 861, 871, 121 Cal.Rptr.3d 722 [because of evidence that the " 'cash only' " nature of most medical marijuana dispensary operations presents a disproportionate target for robberies and burglaries, and that such facilities affect neighborhood quality of life by attracting loitering and marijuana smoking on or near the premises, they are not similarly situated to pharmacies for public health purposes and need not be treated equally]; Kruse, supra, 177 Cal.App.4th 1153, 1161, 100 Cal,Rptr.3d 1 [noting local findings of a correlation between medical marijuana dispensaries and increased crime].) Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 14 Initiative 502 and the implementing regulations include significant requirements regarding licensing of proposed marijuana businesses. However, such requirements are not exhaustive and cannot address all secondary effects associated with production, processing and retailing of marijuana. Secondary effects associated with production, processing, and sale of recreational marijuana have (understandably) not been documented with the depth and scope afforded medical marijuana facilities because recreational or "adult marijuana" has only recently been legalized in two states, Colorado and Washington. However, important studies have been made regarding secondary effects associated with medical marijuana dispensaries and grow operations. In 2009, the "White Paper on Marijuana Dispensaries," California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009) was issued ("CAPCA White Paper"). As stated in the Executive Summary in the CAPCA White Paper: Marijuana dispensaries are commonly large money -making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi -million -dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. While the regulatory scheme adopted under Initiative 502 should operate to eliminate the more outrageous secondary effects associated with medical marijuana dispensaries described above, the risks of robberies, burglaries, drug dealing, sales to minors, loitering, heavy foot and vehicle traffic, increased noise, and odors remain.4 It should be emphasized that the secondary effects 4 There are serious environmental impacts to be considered in the field of marijuana production, processing and retailing. Environmental review by the WSLCB was limited in scope. It did not address at Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 15 described above arose under a system were authorized by California state law.5 The holding of the California court in emphasis: where medical marijuana dispensaries City of Riverside, supra, is worthy of Thus, while some counties and cities might consider themselves well suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens....Under these circumstances, we cannot lightly assume the voters or the Legislature intended to impose a "one size fits all" policy, whereby each and every one of California's diverse counties and cities must allow the use of local land for such purposes. City of Riverside v. Inland Empire Patients Health and Welfare Center, 56 Ca1.4th 729, 756, 300 P.3d 494 (2013). E. Banning and "Prohibitive Zoning." The two questions posed by the Attorney General's Office differentiate between the authority of a city to enact an outright ban, or to enact such restrictive zoning or business regulations that operation or location of a marijuana business is impractical. If the Attorney General's Office concludes that cities retain the ability under its land use jurisdiction to ban such businesses all the impacts associated with processing, distributing or retailing, and its review of impacts associated with cultivation was in many cases based upon unsupported statements of a general nature. For example, the WSLCB admits in its SEPA checklist that cultivation is "water -intensive", but made no effort to acknowledge that water is simply not available for marijuana cultivation in all parts of the state. Moreover, rather than stating the likelihood that the proposal would cause water quality decreases, the WSLCB states a number of facts that apply to any situation ("current indoor cultivation often employs pesticides and herbicides"). In terms of intense energy usage of indoor cultivation, the WSLCB's only proposed mitigation is to allow outdoor cultivation as well. That does not address the impacts at the local level of a proposed indoor grow operation. In terms of toxic wastes, the WSLCB reduced this to an issue of light bulb disposal, and suggested that it may implement a light bulb recycling program sometime in the future. That does not address what may be proposed at the local level in terms of pesticides, insecticides and other potential pollutants associated with outdoor grow operations. Odors are also an expected impact that may be particularly offensive in locations proximate to certain uses such as residential areas. These impacts were not addressed by the WSLCB. Impacts on increased demands for public services including police and fire were also not addressed, even though the WSLCB acknowledged that "areas can experience home invasion robberies, theft and murders related to marijuana cultivation which impacts local law enforcement." These and similar impacts were not, and in many cases cannot be fully addressed or mitigated at the State level, demonstrating the need for local government to evaluate, regulate, and if necessary, ban marijuana at the local level. 5 In 1996, California voters approved a ballot initiative, Proposition 215, referred to as the "Compassionate Use Act of 1996." (Cal. Health & Safety Code § 11362.5.) In 2003, the California legislature adopted the Medical Marijuana Program (MMP) (Cal. Health & Safety Code §§ 11362.7- 11362.83). Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 16 outright, the logical answer is that such power extends to imposition of land use regulations that make operation or location of a marijuana business impractical. In this context, it is important to note that manufacture, possession, delivery, sale, and use of marijuana is illegal under the federal Controlled Substances Act, 21 U.S.C. Sections 801-97. Federal law prevails over any conflicting state law under the Supremacy Clause of the United States Constitution. Gonzalez v. Rech, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). Any ban of marijuana is in compliance with federal law. Likewise, any restriction of marijuana that has the effect of banning the Schedule I controlled substance is in compliance with federal law. There are no recognized First Amendment or "free speech" protections associated with the manufacture, possession, delivery, sale, or use of marijuana. This distinguishes production, processing, and retailing of marijuana from rules applicable to regulation of adult business. If there is no "right" to access recreational "adult marijuana" in any particular city, there is no restriction on the ability of a city to ban such use and businesses, or to regulate such uses to the effect that such regulation constitutes a de facto ban. It is also important to note that nothing in Initiative 502 or the implementing regulations prevents a city from "regulating" marijuana production and/or processing uses different from retail outlets. No provision in the Initiative or regulations states that any city or county is "allocated" a minimum or maximum number of production or processing licenses. Thus, a city could ban marijuana production, processing, or retailing uses within its jurisdiction — or all three.6 F. Conclusions. There is no express or implied preemption of a city's constitutional land use authority under the provisions of Initiative 502. The Initiative was not intended or drafted to create a "one size fits all" cram down. Cities within the State of Washington retain their authority to regulate land uses within their respective jurisdictions — including the ability to ban or to establish restrictive land use regulations. The exercise of a city's authority to ban adult marijuana production, processing, and retailing does not impair the application or enforcement of Initiative 502 or its implementing regulations. Any city's "allocated" retail licenses simply become "at Targe" licenses available for location within the unincorporated areas of the county or in any other city that was not allocated retail licenses. There is no reduction in the maximum number of retail licenses allocated to each county. There is no preemptive "right" of access to adult marijuana. The purposes of Initiative 502 are satisfied with provision of "adequate access." Adequate access is satisfied by locations within the unincorporated areas of the county or in other cities that elect not to ban. Market conditions and basic economic self-interest will operate so that "at large" retail outlets will locate in the 6 Counties may require a different analysis. Initiative 502 authorizes the WSLCB to allocate the "maximum number of retail licenses" for "each county." There is no allocation authority pertaining to cities within each county. A county would have the additional burden to show that the Initiative does not preempt the county's ability to ban retail outlets within the unincorporated areas of the county. However, even for counties, there is no express or implied mandate within the Initiative requiring the county to allow production or processing uses within its jurisdiction. Mr. Jeff Even, Deputy Solicitor General December 10, 2013 Page 17 unincorporated areas of the county, or in other cities, within a reasonable distance of larger cities. There are no mandates in Initiative 502 requiring any city or county to allow marijuana production or processing within their jurisdictions. There are documented environmental and secondary effects associated with analogous medical marijuana dispensaries that strongly support the local government's ability to control land uses within its jurisdiction. There is no intent within Initiative 502 to support a conclusion that the people intended a "one size fits all" mandate preempting a city's ability to honor and protect local conditions. In fact, the adopted regulations establish that any license issued for marijuana production, processing or retailing is subject to the zoning laws of the local jurisdiction. Local needs, such as protection of residential zones, can only be protected through the exercise of zoning and land use regulation. Marijuana remains a controlled substance illegal under controlling federal law. The August 29, 2013 memorandum issued by the U.S. Attorney's office is an exercise of prosecutorial discretion. It is not a legislative act. Prosecutorial discretion can be altered or withdrawn if the federal enforcement agency determines in any case that the state's law or enforcement falls short of the federal government's interest. In fact, the August 29, 2013 memorandum specifically referenced this ability. We appreciate the ability to respond to your request. We would be happy to supplement or provide further comment. Very truly yours, eff Cutter City Attorney (J) "WHITE PAPER ON MARIJUANA DISPENSARIES," SUBMITTED BY CALIFORNIA POLICE CHIEFS ASSOCIATION TASK FORCE ON MARIJUANA DISPENSARIES (APRIL 22, 2009). WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 California Police Chiefs Assn. All Rights Reserved ACKNOWLEDGMENTS Beyond any question, this White Paper is the product of a major cooperative effort among representatives of numerous law enforcement agencies and allies who share in common the goal of bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries that until now have been too often hidden in the shadows. The critical need for this project was first recognized by the California Police Chiefs Association, which put its implementation in the very capable hands of CPCA's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City of El Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members of CPCA's Medical Marijuana Dispensary Crime/Impact Issues Task Force, which has been enjoying the hospitality of Sheriff John McGinnis at regular meetings held at the Sacramento County Sheriff's Department's Headquarters Office over the past three years about every three months. The ideas for the White Paper's components came from this group, and the text is the collaborative effort of numerous persons both on and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard Jones of the law firm of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this important work. Identifying and thanking everyone who contributed in some way to this project would be well nigh impossible, since the cast of characters changed somewhat over the years, and some unknown individuals also helped meaningfully behind the scenes. Ultimately, developing a White Paper on Marijuana Dispensaries became a rite of passage for its creators as much as a writing project. At times this daunting, and sometimes unwieldy, multi-year project had many task force members, including the White Paper's editor, wondering if a polished final product would ever really reach fruition. But at last it has! If any reader is enlightened and spurred to action to any degree by the White Paper's important and timely subject matter, all of the work that went into this collaborative project will have been well worth the effort and time expended by the many individuals who worked harmoniously to make it possible. Some of the other persons and agencies who contributed in a meaningful way to this group venture over the past three years, and deserve acknowledgment for their helpful input and support, are: George Anderson, California Department of Justice Jacob Appelsmith, Office of the California Attorney General John Avila, California Narcotics Officers Association Phebe Chu, Office of San Bernardino County Counsel Scott Collins, Los Angeles County District Attorney's Office Cathy Coyne, California State Sheriffs' Association Lorrac Craig, Trinity County Sheriffs Department Jim Denney, California State Sheriffs' Association Thomas Dewey, California State University—Humboldt Police Department Dana Filkowski, Contra Costa County District Attorney's Office John Gaines, California Department of Justice/Bureau of Narcotics Enforcement Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office—Major Narcotics Division © 2009 California Police Chiefs Assn. i All Rights Reserved Nate Johnson, California State University Police Mike Kanalakis, Monterey County Sheriffs Office Bob Kochly, Contra Costa County Office of District Attorney Tommy LaNier, The National Marijuana Initiative, HIDTA Carol Leveroni, California Peace Officers Association Kevin McCarthy, Los Angeles Police Department Randy Mendoza, Arcata Police Department Mike Nivens, California Highway Patrol Rick Oules, Office of the United States Attorney Mark Pazin, Merced County Sheriffs Department Michael Regan, El Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Planning Unit Kent Shaw, California Department of Justice/Bureau of Narcotics Enforcement Crystal Spencer, California Department of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toller, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor © 2009 California Police Chiefs Assn. ii All Rights Reserved TABLE OF CONTENTS Pages ACKNOWLEDGMENTS i -ii EXECUTIVE SUMMARY iv -vi WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION 1 FEDERAL LAW 1-2 CALIFORNIA LAW 2-6 LAWS IN OTHER STATES 6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES 6-7 HOW EXISTING DISPENSARIES OPERATE 7-8 ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES 8 ANCILLARY CRIMES 8-10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES 11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE.. 11-14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES14-17 LIABILITY ISSUES 18-19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES 19-30 PENDING LEGAL QUESTIONS 31-39 CONCLUSIONS 40 ENDNOTES 41-44 NON -LEGAL REFERENCES 45-49 © 2009 California Police Chiefs Assn. III All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MMPA, and others have challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dispensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope of both direct and indirect adverse impacts of marijuana dispensaries in local communities. It also recounts several examples that could be emulated of what some governmental officials and law enforcement agencies have already instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate their negative consequences. FEDERAL LAW Except for very limited and authorized research purposes, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana—even with a physician's recommendation for medical use. © 2009 California Police Chiefs Assn. iv All Rights Reserved CALIFORNIA LAW Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those who cultivate, possess, or use limited amounts of marijuana for medicinal purposes as qualified patients with a physician's recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such available defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug-trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana—medical or non-medical—for profit. California's Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief purpose of giving them a means of certification to show law enforcement officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary Penrod, pending a decision on review by the U.S. Supreme Court, as is California's right to permit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non-medical purposes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large money -making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi -million -dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. © 2009 California Police Chiefs Assn. v All Rights Reserved LOCAL GOVERNMENTAL RESPONSES Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries while investigating this issue; can ban this type of activity because it violates federal law; can use zoning to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; and can condition their operation on not violating any federal or state law, which is akin to banning them, since their primary activities will always violate federal law as it now exists— and almost surely California law as well. LIABILITY While highly unlikely, local public officials, including county supervisors and city council members, could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and licensing marijuana dispensaries if they do not qualify as "cooperatives" under California law, which would be a rare occurrence. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raiding large-scale marijuana dispensaries in California in the recent past, and arresting and prosecuting their principals under federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has very recently announced a major change of federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to determine what indicia will constitute a drug trafficking operation suitable to trigger investigation and enforcement under the new federal administration. Some counties, like law enforcement agencies in the County of San Diego and County of Riverside, have been aggressive in confronting and prosecuting the operators of marijuana dispensaries under state law. Likewise, certain cities and counties have resisted granting marijuana dispensaries business licenses, have denied applications, or have imposed moratoria on such enterprises. Here, too, the future is uncertain, and permissible legal action with respect to marijuana dispensaries may depend on future court decisions not yet handed down. Largely because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical marijuana patients, and have been tolerant of the cultivation and use of marijuana, other local public officials in California cities and counties, especially in Northern California, have taken a "hands off" attitude with respect to prosecuting marijuana dispensary operators or attempting to close down such operations. But, because of the life safety hazards caused by ensuing fires that have often erupted in resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitudes have changed and a few political entities have reversed course after having previously licensed dispensaries and authorized liberal permissible amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These "patients" have most often turned out to be young adults who are not sick at all, but have secured a physician's written recommendation for marijuana use by simply paying the required fee demanded for this document without even first undergoing a physical examination. Too often "medical marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return. © 2009 California Police Chiefs Assn. vi All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor: Dennis Tilton, M.A.Ed., M.A.Lit., M.C.J., J.D. Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University Sheriff's Legal Counsel (Retired), San Bernardino County Sheriff's Department INTRODUCTION In November of 1996, California voters passed Proposition 215. The initiative set out to make marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their responses to medical marijuana. Some have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several once issued business licenses allowing medical marijuana stores to operate, but no longer do so. This paper discusses the legality of both medical marijuana and the businesses that make it available, and more specifically, the problems associated with medical marijuana and marijuana dispensaries, under whatever name they operate. FEDERAL LAW Federal law clearly and unequivocally states that all marijuana -related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court has ruled that this federal regulation supersedes any state's regulation of marijuana — even California's. (Gonzales v. Raich (2005) 125 S.Ct. 2195, 2215.) "The Supremacy Clause unambiguously provides that if there is any conflict between federal law and state law, federal law shall prevail." (Gonzales v. Raich, supra.) Even more recently, the 9th Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. (Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the High Court declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under federal law. As such, there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)(1).) Over the past thirty years, there have been several attempts to have marijuana reclassified to a different schedule which would permit medical use of the drug. All of these attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, fn 23.) The mere categorization of marijuana as "medical" by some states fails to carve out any legally recognized exception regarding the drug. Marijuana, in any form, is neither valid nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that all laws made in pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to any conflicting provision of a state constitution or law.' The Commerce Clause states that "the © 2009 California Police Chiefs Assn. 1 All Rights Reserved Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."2 Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana under California's medical marijuana statute. The Court explained that under the Controlled Substances Act marijuana is a Schedule I drug and is strictly regulated.' "Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment."4 (21 USC sec. 812(b)(1).) The Court ruled that the Commerce Clause is applicable to California individuals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation, including California's. The Court found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana. Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity remains illegal.' California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama Administration the U.S. Department of Justice plans to target for prosecution only those marijuana dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.' CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unlawful under California state statutory law. (See Cal. Health & Safety Code secs. 11357-11360.) But, on November 5, 1996, California voters adopted Proposition 215, an initiative statute authorizing the medical use of marijuana.' The initiative added California Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ...."8 The codified section is known as the Compassionate Use Act of 1996.9 Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004.1° This act expanded the definitions of "patient" and "primary caregiver"11 and created guidelines for identification cards.12 It defined the amount of marijuana that "patients," and "primary caregivers" can possess.13 It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana,14 as well as to the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana for a person who qualifies as a "patient," a "primary caregiver," or as a member of a legally recognized "cooperative," as those terms are defined within the statutory scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the establishment of a "dispensary" or other storefront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes' parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative." Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. © 2009 California Police Chiefs Assn. 2 All Rights Reserved Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and strictly construed California law relating to it. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did not address the validity of the California statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. Attorney General Lockyer made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act." Now the current California Attorney General, Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher on storefront dispensaries—generally finding them to be unprotected, illegal drug-trafficking enterprises if they do not fall within the narrow legal definition of a "cooperative"—than on the possession and use of marijuana upon the recommendation of a physician. When California's medical marijuana laws are strictly construed, it appears that the decision in Gonzales v. Raich does affect California law. However, provided that federal law does not preempt California law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of" the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and, if their conduct comports to the law, they may have some state legal protection for specified marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of the statutes, including dispensaries and storefront facilities, are not legal. These establishments have no legal protection. Neither the former California Attorney General's opinion nor the current California Attorney General's guidelines present a contrary view. Nevertheless, without specifically addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to defend the codified Medical Marijuana Program Act against court challenges, and to advance the position that the state's regulations promulgated to enforce the provisions of the codified Compassionate Use Act (Proposition 215), including a statewide database and county identification card systems for marijuana patients authorized by their physicians to use marijuana, are all valid. 1. Conduct California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver," or is a member of a legally recognized "cooperative," he or she has an affirmative defense to possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried marijuana can be possessed. Additionally, either six mature or twelve immature plants may be possessed.15 If a person claims patient or primary caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and/or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. 16 However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses, knowingly providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. © 2009 California Police Chiefs Assn. 3 All Rights Reserved 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A "qualified patient" is an individual with a physician's recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H&S Code secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides reliefs' A physician's recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense can be claimed. A "person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card issued by the State Department of Health Services. (Cal. H&S Code secs. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H&S Code sec. 11362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but function like storefront dispensaries, suffer this same fate. In People v. Mower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with marijuana.'8 He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense.19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver -patient relationship must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Mentch (2008) 45 Ca1.4th 274, 283.) Any relationship a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for the housing, health, or safety of a patient" over time. (Cal. H&S Code sec. 11362.5(e).) "Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Mentch, supra, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer. Additionally, if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, in most circumstances the primary caregiver must be at least 18 years of age. © 2009 California Police Chiefs Assn. 4 All Rights Reserved The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. (See People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1390: "One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party 'who has consistently assumed responsibility for the housing, health, or safety' of that purchaser as section 11362.5(e) requires.") The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types of facilities could qualify as "primary caregivers." Those included in the list clearly show the Legislature's intent to restrict the definition to one involving a significant and long-term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as "primary caregivers" are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H&S Code sec. 11362.7(d)(1).) Any business that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution as such. 4. Cooperatives and Collectives According to the California Attorney General's recently issued Guidelines for the Security and Non - Diversion of Marijuana Grown for Medical Use, unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought, in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 881.) The Act added section 11362.775, which provides that "Patients and caregivers who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions" for the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.77(a).) If a dispensary is only a storefront distribution operation open to the general public, and there is no indication that it has been involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise, it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana laws. Further, the common dictionary definition of "collectives" is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."20 Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 California Police Chiefs Assn. 5 All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises under either federal or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby to some degree marijuana recommended or prescribed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts.21 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California.22 Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana.23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes.24 These facilities are able to operate because they apply for and receive business licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law.25 Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else.26 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."27 Marijuana businesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have "consistently assumed responsibility for the housing, health, or safety" of a patient.28 Clearly, it is doubtful that any of the storefront marijuana businesses currently © 2009 California Police Chiefs Assn. 6 All Rights Reserved existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming, arguendo, that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary works.29 A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are neither pharmacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be available and sold, although there is usually no health permit to sell baked goods. The dispensary will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the "contribution" will be for the product. The California Health & Safety Code specifically prohibits the sale of marijuana to a patient, so "contributions" are made to reimburse the dispensary for its time and care in making "product" available. However, if a calculation is made based on the available evidence, it is clear that these "contributions" can easily add up to millions of dollars per year. That is a very large cash flow for a "non-profit" organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at the dispensary was obtained from growers who brought it to the store in backpacks. A medium- sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana growers. It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the "primary caregivers" of patients. This is a spurious claim. As discussed above, the term "primary caregiver" has a very specific meaning and defined legal qualifications. A primary caregiver is an individual who has "consistently assumed responsibility for the housing, health, or safety of a patient." 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver status. A business would have to prove that it "consistently had assumed responsibility for [a patient's] housing, health, or safety."31 The key to being a primary caregiver is not simply that marijuana is provided for a patient's health: the responsibility for the patient's health must be consistent. As seen in the Green Cross example, a storefront marijuana business's relationship with a patient is most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant "primary caregiver" relationship with him. The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. The © 2009 California Police Chiefs Assn. 7 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved between an individual and a business that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES Of great concern are the adverse secondary effects of these dispensaries and storefront cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES AND MURDERS Throughout California, many violent crimes have been committed that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders. For example, as far back as 2002, two home occupants were shot in Willits, California in the course of a home - invasion robbery targeting medical marijuana.32 And, a series of four armed robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggies filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The owner said he failed to report the first three robberies because "medical marijuana is such a controversial issue." 33 On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65 -year-old man's throat, and though he fought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison.34 And, on August 19, 2005, 18 -year-old Demarco Lowrey was "shot in the stomach" and "bled to death" during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrance of Children's Hospital Oakland" after the shootout.35 He did not survive.36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary, a patron of the CCA Cannabis Club had a gun put to his head as he was relieved of over $250 worth of pot. Three weeks later, another break-in occurred at the Garden of Eden Cannabis Club in September of 2005.37 Another known marijuana -dispensary -related murder occurred on November 19, 2005. Approximately six gun- and bat -wielding burglars broke into Les Crane's home in Laytonville, California while yelling, "This is a raid." Les Crane, who owned two storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen.38 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S. currency and a stash of processed marijuana.39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded money. When the homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of © 2009 California Police Chiefs Assn. 8 All Rights Reserved cash and handguns. Investigating officers counted 109 marijuana plants in various phases of cultivation inside the house, along with two digital scales and just under 4 pounds of cultivated marijuana.4° More recently in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization of marijuana.41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the fruits of his indoor marijuana grow, he shot one who was running away, and killed him.42 And, again in January of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in Claremont, California.43 On July 17, 2006, the El Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen -page report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders.44 Even though marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 2006.45 After allowing these establishments to operate within its borders, the City of West Hollywood, California passed a similar moratorium. The moratorium was "prompted by incidents of armed burglary at some of the city's eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise ... "46 C. TRAFFIC, NOISE, AND DRUG DEALING Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries,47 as well as drug-related offenses in the vicinity—like resales of products just obtained inside—since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers.48 Sharing just purchased marijuana outside dispensaries also regularly takes place.49 Rather than the "seriously ill," for whom medical marijuana was expressly intended,50 "'perfectly healthy' young people frequenting dispensaries" are a much more common sight.51 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in December of 2005 "showed that 72 percent of patients were between 17 and 40 years old ...."52 Said one admitted marijuana trafficker, "The people I deal with are the same faces I was dealing with 12 years ago but now, because of Senate Bill 420, they are supposedly legit. I can totally see why cops are bummed."53 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California.54 And, the mere presence of marijuana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown.55 It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they © 2009 California Police Chiefs Assn. 9 All Rights Reserved dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing about organized crime involvement in the ownership and operation of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Armenian Mafia.56 The dispensaries or "pot clubs" are often used as a front by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, California reportedly ran a multi-million dollar business operating ten warehouses in which vast amounts of marijuana plants were grown.57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms,58 which seem to go hand in hand with medical marijuana cultivation and dispensaries.5° Marijuana storefront businesses have allowed criminals to flourish in California. In the summer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M-16 assault rifle.60 The National Drug Intelligence Center reports that marijuana growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Street gangs of all national origins are involved in transporting and distributing marijuana to meet the ever increasing demand for the drug.61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to use as grow houses.62 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund other legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking.63 Money from residential grow operations is also sometimes traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations,64 and along with the illegal income derived from large-scale organized crime -related marijuana production operations comes widespread income tax evasion.65 E. POISONINGS Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unintentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake extended to him from an operator of a marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented.66 The second incident concerned a UPS driver who experienced similar symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic.67 © 2009 California Police Chiefs Assn. 10 All Rights Reserved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and/or money by means of robbery of patrons going to or leaving dispensaries; an increase in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police.68 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a physician's recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous physicians seeking a quick buck, and the proliferation of forged or fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence in a local hotel room where they advertise their appearance in advance, and pass out medical marijuana use recommendations to a line of "patients" at "about $150 a pop."69 Other individuals just make up their own phony doctor recommendations,70 which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sporting fake medical marijuana recommendations were readily able to purchase marijuana from a clinic.71 Far too often, California's medical marijuana law is used as a smokescreen for healthy pot users to get their desired drug, and for proprietors of marijuana dispensaries to make money off them, without suffering any legal repercussions. 7z On March 11, 2009, the Osteopathic Medical Board of California adopted the proposed decision revoking Dr. Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him to pay $74,323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised his services extensively on the Internet. Based on information obtained from raids on marijuana dispensaries in San Diego, in May of 2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of 2007, a second undercover operation was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County. Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr. Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives posing as patients. After a six-day hearing, the Administrative Law Judge (ALJ) issued her decision finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated negligence in care, treatment, and management of patients when he, among other things, issued medical marijuana recommendations to the undercover agents without conducting adequate medical examinations, failed to gain proper informed consent, and failed to consult with any primary care and/or treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The ALJ also found Dr. Jimenez engaged in dishonest behavior by preparing false and/or misleading medical records and disseminating false and misleading advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified Medical Marijuana Examiner" when no such formal specialty or qualification existed. Absent any © 2009 California Police Chiefs Assn. 11 All Rights Reserved requested administrative agency reconsideration or petition for court review, the decision was to become effective April 24, 2009. B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS In recent years the proliferation of grow houses in residential neighborhoods has exploded. This phenomenon is country wide, and ranges from the purchase for purpose of marijuana grow operations of small dwellings to "high priced McMansions ...."73 Mushrooming residential marijuana grow operations have been detected in California, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas.74 In 2007 alone, such illegal operations were detected and shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in Florida, and 11 homes in New Hampshire.75 Since then, the number of residences discovered to be so impacted has increased exponentially. Part of this recent influx of illicit residential grow operations is because the "THC -rich `B.C. bud' strain" of marijuana originally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly saturated with the product of "competing Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels.76 Typically, a gutted house can hold about 1,000 plants that will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year.77 With a street value of $3,000 to $5,000 per pound" for high -potency marijuana, and such multiple harvests, "a successful grow house can bring in between $4.5 million and $10 million a year ...."78 The high potency of hydroponically grown marijuana can command a price as much as six times higher than commercial grade marijuana.79 C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site of a house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house by its tenant. Per Arcata Police Chief Randy Mendosa, altered and makeshift "no code" electrical service connections and overloaded wires used to operate high-powered grow lights and fans are common causes of the fires. Large indoor marijuana growing operations can create such excessive draws of electricity that PG&E power pole transformers are commonly blown. An average 1,500 - square -foot tract house used for growing marijuana can generate monthly electrical bills from $1,000 to $3,000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB -32 regulations, as well as other greenhouse gas reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting, windows are blacked out, holes are cut in floors, wiring is jury-rigged, and electrical circuits are overloaded to operate grow lights and other apparatus. When fires start, they spread quickly. The May 31, 2008 edition of the Los Angeles Times reported, "Law enforcement officials estimate that as many as 1,000 of the 7,500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing stock, spreading building -safety problems and sowing neighborhood discord." Not surprisingly, in this bastion of liberal pot possession rules that authorized the cultivation of up to 99 plants for medicinal purpose, most structural fires in the community of Arcata have been of late associated with marijuana cultivation.80 Chief of Police Mendosa clarified that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in and around the city, which has been the source of constant citizen complaints." House fires caused by © 2009 California Police Chiefs Assn. 12 All Rights Reserved grower -installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County.81 Chief Mendosa also observed that since marijuana has an illicit street value of up to $3,000 per pound, marijuana grow houses have been susceptible to violent armed home invasion robberies. Large-scale marijuana grow houses have removed significant numbers of affordable houses from the residential rental market. When property owners discover their rentals are being used as grow houses, the residences are often left with major structural damage, which includes air vents cut into roofs and floors, water damage to floors and walls, and mold. The June 9, 2008 edition of the New York Times shows an unidentified Arcata man tending his indoor grow; the man claimed he can make $25,000 every three months by selling marijuana grown in the bedroom of his rented house.82 Claims of ostensible medical marijuana growing pursuant to California's medical marijuana laws are being advanced as a mostly false shield in an attempt to justify such illicit operations. Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another occurred not long ago in Holiday, Florida." To compound matters further, escape routes for firefighters are often obstructed by blocked windows in grow houses, electric wiring is tampered with to steal electricity, and some residences are even booby -trapped to discourage and repel unwanted intruders.84 D. INCREASED ORGANIZED GANG ACTIVITIES Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. Members of an ethnic Chinese drug gang were discovered to have operated 50 indoor grow operations in the San Francisco Bay area, while Cuban -American crime organizations have been found to be operating grow houses in Florida and elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and Puget Sound, Washington.85 In July of 2008, over 55 Asian gang members were indicted for narcotics trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively operating marijuana grow operations in Elk Grove and elsewhere in the vicinity of Sacramento, California.86 E. EXPOSURE OF MINORS TO MARIJUANA Minors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow houses, children are exposed to dangerous fire and health conditions that are inherent in indoor grow operations.87 Dispensaries also sell marijuana to minors.88 F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk -like odor,89 and foster generally unhealthy conditions like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level within the grow house, and the accumulation of mold, 90 all of which are dangerous to any children or adults who may be living in the residence,91 although many grow houses are uninhabited. © 2009 California Police Chiefs Assn. 13 All Rights Reserved G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to be frequented by drug users and traffickers, and organized criminal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL Marijuana dispensaries bring in the criminal element and loiterers, which in turn scare off potential business patrons of nearby legitimate businesses, causing loss of revenues and deterioration of the affected business district. Likewise, empty homes used as grow houses emit noxious odors in residential neighborhoods, project irritating sounds of whirring fans,92 and promote the din of vehicles coming and going at all hours of the day and night. Near harvest time, rival growers and other uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip off mature plants ready for harvesting. As a result, violence often erupts from confrontations in the affected residential neighborhood.93 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS On balance, any utility to medical marijuana patients in care giving and convenience that marijuana dispensaries may appear to have on the surface is enormously outweighed by a much darker reality that is punctuated by the many adverse secondary effects created by their presence in communities, recounted here. These drug distribution centers have even proven to be unsafe for their own proprietors. POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the process of investigating and researching the issue of licensing marijuana dispensaries, as an interim measure city councils may enact date -specific moratoria that expressly prohibit the presence of marijuana dispensaries, whether for medical use or otherwise, and prohibiting the sale of marijuana in any form on such premises, anywhere within the incorporated boundaries of the city until a specified date. Before such a moratorium's date of expiration, the moratorium may then either be extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment and operation of marijuana dispensaries, and the sale of all marijuana products on such premises. County supervisors can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas of a county. Approximately 80 California cities, including the cities of Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill, and 6 counties, including Contra Costa County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach, the City of Arcata issued a moratorium on any new dispensaries in the downtown area, based on no agricultural activities being permitted to occur there.94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use marijuana for medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authorize the sale of marijuana to patients or primary caregivers. Neither Proposition 215 nor Senate Bill 420 specifically authorizes the dispensing of marijuana in any form from a storefront business. And, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries.95 Consequently, approximately 39 California cities, including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries within their respective geographical boundaries, while approximately 24 cities, including the City of Martinez, and 7 counties have allowed such dispensaries to do business within their jurisdictions. Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run afoul of current California law with respect to permitted use of marijuana for medicinal purposes, so long as the growing or use of medical marijuana by a city or county resident in conformance with state law is not proscribed.96 In November of 2004, the City of Brampton in Ontario, Canada passed The Grow House Abatement By-law, which authorized the city council to appoint inspectors and local police officers to inspect suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of the Fire Code or Building Code, and remove discovered controlled substances and ancillary equipment designed to grow and manufacture such substances, at the involved homeowner's cost.97 And, after state legislators became appalled at the proliferation of for-profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of 2008. The governor signed this bill into law, making owning a house for the purpose of cultivating, packaging, and distributing marijuana a third-degree felony; growing 25 or more marijuana plants a second- degree felony; and growing "25 or more marijuana plants in a home with children present" a first- degree felony.98 It has been estimated that approximately 17,500 marijuana grow operations were active in late 2007.99 To avoid becoming a dumping ground for organized crime syndicates who decide to move their illegal grow operations to a more receptive legislative environment, California and other states might be wise to quickly follow suit with similar bills, for it may already be happening. loo C. IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined, rather than completely prohibit marijuana dispensaries, through their zoning power city and county officials have the authority to restrict owner operators to locate and operate so-called "medical marijuana dispensaries" in prescribed geographical areas of a city or designated unincorporated areas of a county, and require them to meet prescribed licensing requirements before being allowed to do so. This is a risky course of action though for would-be dispensary operators, and perhaps lawmakers too, since federal authorities do not recognize any lawful right for the sale, purchase, or use of marijuana for medical use or otherwise anywhere in the United States, including California. Other cities and counties have included as a condition of licensure for dispensaries that the operator shall "violate no federal or state law," which puts any applicant in a "Catch-22" situation since to federal authorities any possession or sale of marijuana is automatically a violation of federal law. Still other municipalities have recently enacted or revised comprehensive ordinances that address a variety of medical marijuana issues. For example, according to the City of Arcata Community © 2009 California Police Chiefs Assn. 15 All Rights Reserved Development Department in Arcata, California, in response to constant citizen complaints from what had become an extremely serious community problem, the Arcata City Council revised its Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of 2008, City of Arcata Ordinance #1382 was enacted. It includes the following provisions: "Categories: 1. Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate medical marijuana within his/her private residence in conformance with the following standards: 1. Cultivation area shall not exceed 50 square feet and not exceed ten feet (10') in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (CO2, butane, etc.) for medical marijuana cultivation or processing is prohibited. c. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohibited). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not participate in medical marijuana cultivation in any other residence. f. Residence kitchen, bathrooms, and primary bedrooms shall not be used primarily for medical marijuana cultivation; g. Cultivation area shall comply with the California Building Code § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the nearby residents. 2. City Zoning Administrator my approve up to 100 square foot: a. Documentation showing why the 50 square foot cultivation area standard is not feasible. b. Include written permission from the property owner. c. City Building Official must inspect for California Building Code and Fire Code. d. At a minimum, the medical marijuana cultivation area shall be constructed with a 1 - hour firewall assembly of green board. e. Cultivation of medical marijuana for personal use is limited to detached single family residential properties, or the medical marijuana cultivation area shall be limited to a garage or self-contained outside accessory building that is secured, locked, and fully enclosed. Medical Marijuana Cooperatives or Collectives. 1. Allowed with a Conditional Use Permit. 2. In Commercial, Industrial, and Public Facility Zoning Districts. 3. Business form must be a cooperative or collective. 4. Existing cooperative or collective shall be in full compliance within one year. 5. Total number of medical marijuana cooperatives or collectives is limited to four and ultimately two. 6. Special consideration if located within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. © 2009 California Police Chiefs Assn. 16 All Rights Reserved c. Within 500 feet from any existing public park, playground, day care, or school. 7 Source of medical marijuana. a. Permitted Cooperative or Collective. On-site medical marijuana cultivation shall not exceed twenty-five (25) percent of the total floor area, but in no case greater than 1,500 square feet and not exceed ten feet (10') in height. b. Off-site Permitted Cultivation. Use Permit application and be updated annually. c. Qualified Patients. Medical marijuana acquired from an individual qualified patient shall received no monetary remittance, and the qualified patient is a member of the medical marijuana cooperative or collective. Collective or cooperative may credit its members for medical marijuana provided to the collective or cooperative, which they may allocate to other members. 8. Operations Manual at a minimum include the following information: a. Staff screening process including appropriate background checks. b. Operating hours. c. Site, floor plan of the facility. d. Security measures located on the premises, including but not limited to, lighting, alarms, and automatic law enforcement notification. e. Screening, registration and validation process for qualified patients. f. Qualified patient records acquisition and retention procedures. g. Process for tracking medical marijuana quantities and inventory controls including on-site cultivation, processing, and/or medical marijuana products received from outside sources. h. Measures taken to minimize or offset energy use from the cultivation or processing of medical marijuana. i. Chemicals stored, used and any effluent discharged into the City's wastewater and/or storm water system. 9. Operating Standards. a. No dispensing medical marijuana more than twice a day. b. Dispense to an individual qualified patient who has a valid, verified physician's recommendation. The medical marijuana cooperative or collective shall verify that the physician's recommendation is current and valid. c. Display the client rules and/or regulations at each building entrance. d. Smoking, ingesting or consuming medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (18) are precluded from entering the premises. f. No on-site display of marijuana plants. g. No distribution of live plants, starts and clones on through Use Permit. h. Permit the on-site display or sale of marijuana paraphernalia only through the Use Permit. i. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's tax liability responsibility; j. Submit an "Annual Performance Review Report" which is intended to identify effectiveness of the approved Use Permit, Operations Manual, and Conditions of Approval, as well as the identification and implementation of additional procedures as deemed necessary. k. Monitoring review fees shall accompany the "Annual Performance Review Report" for costs associated with the review and approval of the report. 10. Permit Revocation or Modification. A use permit may be revoked or modified for non- compliance with one or more of the items described above." © 2009 California Police Chiefs Assn. 17 All Rights Reserved LIABILITY ISSUES With respect to issuing business licenses to marijuana storefront facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions. Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime knew the criminal offender intended to commit the crime, and the person aiding the crime intended to assist the criminal offender in the commission of the crime. The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana facilities to open. A county that has been informed about the Gonzales v. Raich decision knows that all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved in the marijuana business are subject to federal prosecution. When an individual in California cultivates, possesses, transports, or uses marijuana, he or she is committing a federal crime. A county issuing a business license to a marijuana facility knows that the people there are committing federal crimes. The county also knows that those involved in providing and obtaining marijuana are intentionally violating federal law. This very problem is why some counties are re -thinking the presence of marijuana facilities in their communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. Presently, two counties have expressed concern that California's medical marijuana statutes have placed them in such a precarious legal position. Because of the serious criminal ramifications involved in issuing business permits and allowing storefront marijuana businesses to operate within their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state seeking to prevent the State of California from enforcing its medical marijuana statutes which potentially subject them to criminal liability, and squarely asserting that California medical marijuana laws are preempted by federal law in this area. After California's medical marijuana laws were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of California could mandate counties to adopt and enforce a voluntary medical marijuana identification card system, and the appellate court bypassed the preemption issue by finding that San Diego and San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana laws. Following this state appellate court decision, independent petitions for review filed by the two counties were both denied by the California Supreme Court. Largely because of the quandary that county and city peace officers in California face in the field when confronted with alleged medical marijuana with respect to enforcement of the total federal criminal prohibition of all marijuana, and state exemption from criminal penalties for medical marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two counties seeking review of this decision by the United States Supreme Court in the consolidated cases of County of San Diego, County of San Bernardino, and Gary Penrod, as Sheriff of the County of San Bernardino v. San Diego Norml, State of California, and Sandra Shewry, Director of the California Department of Health Services in her official capacity, Ct.App. Case No. D-5-333.) The High Court has requested the State of California and other interested parties to file responsive briefs to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny review of these consolidated cases. The petitioners would then be entitled to file a reply to any filed response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these consolidated cases in late April or early May of 2009. © 2009 California Police Chiefs Assn. 18 All Rights Reserved In another case, City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, although the federal preemption issue was not squarely raised or addressed in its decision, California's Fourth District Court of Appeal found that public policy considerations allowed a city standing to challenge a state trial court's order directing the return by a city police department of seized medical marijuana to a person determined to be a patient. After the court-ordered return of this federally banned substance was upheld at the intermediate appellate level, and not accepted for review by the California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to the U.S. Supreme Court to consider and reverse the state appellate court decision. But, that petition was also denied. However, the case of People v. Kelly (2008) 163 Cal.App.4th 124 in which a successful challenge was made to California's Medical Marijuana Program's maximum amounts of marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cal. H&S Code sec. 11362.77 et seq.), which limits were found at the court of appeal level to be without legal authority for the state to impose—has been accepted for review by the California Supreme Court on the issue of whether this law was an improper amendment to Proposition 215's Compassionate Use Act of 1996. A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES 1. MARIJUANA DISPENSARIES -THE SAN DIEGO STORY After the passage of Proposition 215 in 1996, law enforcement agency representatives in San Diego, California met many times to formulate a comprehensive strategy of how to deal with cases that may arise out of the new law. In the end it was decided to handle the matters on a case-by-case basis. In addition, questionnaires were developed for patient, caregiver, and physician interviews. At times patients without sales indicia but large grows were interviewed and their medical records reviewed in making issuing decisions. In other cases where sales indicia and amounts supported a finding of sales the cases were pursued. At most, two cases a month were brought for felony prosecution. In 2003, San Diego County's newly elected District Attorney publicly supported Prop. 215 and wanted her newly created Narcotics Division to design procedures to ensure patients were not caught up in case prosecutions. As many already know, law enforcement officers rarely arrest or seek prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have sales amounts in product or cultivation who are prosecuted. For the next two years the District Attorney's Office proceeded as it had before. But, on the cases where the patient had too many plants or product but not much else to show sales—the DDAs assigned to review the case would interview and listen to input to respect the patient's and the DA's position. Some cases were rejected and others issued but the case disposition was often generous and reflected a "sin no more" view. All of this changed after the passage of SB 420. The activists and pro -marijuana folks started to push the envelope. Dispensaries began to open for business and physicians started to advertise their availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the first couple of dispensaries opened up but they were discrete. This would soon change. By that summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In fact, the local police department was doing a small buy/walk project and one of its target dealers said he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC); he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno DEA in his prior job over this issue) to authorize his officers to assist DEA. © 2009 California Police Chiefs Assn. 19 All Rights Reserved The Investigation San Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well as the U.S. Attorney's Office. Though empathetic about being willing to assist, the DA's Office was not sure how prosecutions would fare under the provisions of SB 420. The U.S. Attorney had the easier road but was noncommittal. After several meetings it was decided that law enforcement would work on using undercover operatives (UCs) to buy, so law enforcement could see exactly what was happening in the dispensaries. The investigation was initiated in December of 2005, after NTF received numerous citizen complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and investigations on 15 of these dispensaries were initiated. During the investigation, NTF learned that all of the business owners were involved in the transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana food products. In addition, several owners were involved in the cultivation of high grade marijuana. The business owners were making significant profits from the sale of these products and not properly reporting this income. Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana and marijuana food products from these businesses. In December of 2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow-up search warrants and a consent search were executed the same day. Approximately 977 marijuana plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during the execution of these search warrants for various violations, including outstanding warrants, possession of marijuana for sale, possession of psilocybin mushrooms, obstructing a police officer, and weapons violations. However, the owners and clerks were not arrested or prosecuted at this time just those who showed up with weapons or product to sell. Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense, it could be a jury nullification defense) the DA's Office decided not to file cases at that time. It was hoped that the dispensaries would feel San Diego was hostile ground and they would do business elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary. To gear up for the re -opened and new dispensaries prosecutors reviewed the evidence and sought a second round of UC buys wherein the UC would be buying for themselves and they would have a second UC present at the time acting as UCl's caregiver who also would buy. This was designed to show the dispensary was not the caregiver. There is no authority in the law for organizations to act as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary caregiver is defined by Proposition 215, as codified in H&S Code section 11362.5(e), as, "For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." The goal was to show that the stores were only selling marijuana, and not providing care for the hundreds who bought from them. © 2009 California Police Chiefs Assn. 20 All Rights Reserved In addition to the caregiver -controlled buys, another aim was to put the whole matter in perspective for the media and the public by going over the data that was found in the raided dispensary records, as well as the crime statistics. An analysis of the December 2005 dispensary records showed a breakdown of the purported illness and youthful nature of the patients. The charts and other PR aspects played out after the second take down in July of 2006. The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they were committing. UCs from the local PD went in and taped the encounters to show that the pot docs did not examine the patients and did not render care at all; rather they merely sold a medical MJ recommendation whose duration depended upon the amount of money paid. In April of 2006, two state and two federal search warrants were executed at a residence and storage warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,855 U.S. currency were seized. Due to the pressure from the public, the United States Attorney's Office agreed to prosecute the owners of the businesses with large indoor marijuana grows and believed to be involved in money laundering activities. The District Attorney's Office agreed to prosecute the owners in the other investigations. In June of 2006, a Federal Grand Jury indicted six owners for violations of Title 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of 2006, 11 state and 11 federal search warrants were executed at businesses and residences associated with members of these businesses. The execution of these search warrants resulted in the arrest of 19 people, seizure of over $190,000 in U.S. currency and other assets, four handguns, one rifle, 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana food products. Following the search warrants, two businesses reopened. An additional search warrant and consent search were executed at these respective locations. Approximately 20 kilograms of marijuana and 32 marijuana plants were seized. As a result, all but two of the individuals arrested on state charges have pled guilty. Several have already been sentenced and a few are still awaiting sentencing. All of the individuals indicted federally have also pled guilty and are awaiting sentencing. After the July 2006 search warrants a joint press conference was held with the U.S. Attorney and District Attorney, during which copies of a complaint to the medical board, photos of the food products which were marketed to children, and the charts shown below were provided to the media. Directly after these several combined actions, there were no marijuana distribution businesses operating in San Diego County. Law enforcement agencies in the San Diego region have been able to successfully dismantle these businesses and prosecute the owners. As a result, medical marijuana advocates have staged a number of protests demanding DEA allow the distribution of marijuana. The closure of these businesses has reduced crime in the surrounding areas. © 2009 California Police Chiefs Assn. 21 All Rights Reserved The execution of search warrants at these businesses sent a powerful message to other individuals operating marijuana distribution businesses that they are in violation of both federal law and California law. Press Materials: 18 16 14 12 10 8 6 4 2 0 Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 16 Burg a y At emp ed Criminal Attempted Armed Burgle y Threat Robbery Robbery Information showing the dispensaries attracted crime: 1 1 Battery The marijuana dispensaries were targets of violent crimes because of the amount of marijuana, currency, and other contraband stored inside the businesses. From January 1, 2005 through June 23, 2006, 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records seized from the marijuana dispensaries showed several dispensaries were grossing over $300,000 per month from selling marijuana and marijuana food products. The majority of customers purchased marijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispensaries. These businesses were often victims of robberies and burglaries, but did not report the crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess of Prop. 215 guidelines. NTF and the San Diego Police Department (SDPD) received numerous citizen complaints regarding every dispensary operating in San Diego County. Because the complaints were received by various individuals, the exact number of complaints was not recorded. The following were typical complaints received: • high levels of traffic going to and from the dispensaries • people loitering in the parking lot of the dispensaries • people smoking marijuana in the parking lot of the dispensaries © 2009 California Police Chiefs Assn. 22 All Rights Reserved • vandalism near dispensaries • threats made by dispensary employees to employees of other businesses • citizens worried they may become a victim of crime because of their proximity to dispensaries In addition, the following observations (from citizen activists assisting in data gathering) were made about the marijuana dispensaries: • Identification was not requested for individuals who looked under age 18 • Entrance to business was not refused because of lack of identification • Individuals were observed loitering in the parking lots • Child -oriented businesses and recreational areas were situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age Ages 66-70, 19, 1 Ages 61-65, 47, 2° Ages 56-60, 89, 3% Ages 51-55, 173, 6% Ages 46-50, 210, 7% Ages 41-45, 175, 6°/ 1)11.1!!!illrillip • Ages 71-75, 4, 0% Ages 76-80, 0, 0% Ages 81-85, 0, 0% No Age listed, 118, 4% Ages 17-20, 364, 12% Ages 36-40, 270, 9° Ages 31-35, 302, 10% Ages 26-30, 504, 17% Ages 21-25, 719, 23% An analysis of patient records seized during search warrants at several dispensaries show that 52% of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary caregivers purchasing marijuana were between the ages of 18 through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, glaucoma, or cancer. Why these businesses were deemed to be criminal --not compassionate: The medical marijuana businesses were deemed to be criminal enterprises for the following reasons: • Many of the business owners had histories of drug and violence -related arrests. • The business owners were street -level marijuana dealers who took advantage of Prop. 215 in an attempt to legitimize marijuana sales for profit. • Records, or lack of records, seized during the search warrants showed that all the owners were not properly reporting income generated from the sales of marijuana. Many owners were involved in money laundering and tax evasion. • The businesses were selling to individuals without serious medical conditions. • There are no guidelines on the amount of marijuana which can be sold to an individual. For © 2009 California Police Chiefs Assn. 23 All Rights Reserved example, an individual with a physician's recommendation can go to as many marijuana distribution businesses and purchase as much marijuana as he/she wants. • California law allows an individual to possess 6 mature or 12 immature plants per qualified person. However, the San Diego Municipal Code states a "caregiver" can only provide care to 4 people, including themselves; this translates to 24 mature or 48 immature plants total. Many of these dispensaries are operating large marijuana grows with far more plants than allowed under law. Several of the dispensaries had indoor marijuana grows inside the businesses, with mature and/or immature marijuana plants over the limits. • State law allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana per qualified patient. However, the San Diego Municipal Code allows primary caregivers to possess no more than two pounds of processed marijuana. Under either law, almost every marijuana dispensary had over two pounds of processed marijuana during the execution of the search warrants. • Some marijuana dispensaries force customers to sign forms designating the business as their primary caregiver, in an attempt to circumvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were some marijuana dispensaries operating in the County of Riverside until the District Attorney's Office took a very aggressive stance in closing them. In Riverside, anyone that is not a "qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses, sells, or transports marijuana is being prosecuted. Several dispensary closures illustrate the impact this position has had on marijuana dispensaries. For instance, the Palm Springs Caregivers dispensary (also known as Palm Springs Safe Access Collective) was searched after a warrant was issued. All materials inside were seized, and it was closed down and remains closed. The California Caregivers Association was located in downtown Riverside. Very shortly after it opened, it was also searched pursuant to a warrant and shut down. The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in 2007. The owner and two managers were then prosecuted for marijuana sales and possession of marijuana for the purpose of sale. However, a judge granted their motion to quash the search warrant and dismissed the charges. The District Attorney's Office then appealed to the Fourth District Court of Appeal. Presently, the Office is waiting for oral arguments to be scheduled. Dispensaries in the county have also been closed by court order. The Healing Nations Collective was located in Corona. The owner lied about the nature of the business in his application for a license. The city pursued and obtained an injunction that required the business to close. The owner appealed to the Fourth District Court of Appeal, which ruled against him. (City of Corona v. Ronald Naulls et al., Case No. E042772.) 3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CITIES AND IN OTHER BAY AREA COUNTIES Several cities in Contra Costa County, California have addressed this issue by either banning dispensaries, enacting moratoria against them, regulating them, or taking a position that they are simply not a permitted land use because they violate federal law. Richmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances banning the establishment of marijuana dispensaries. Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill have imposed moratoria against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal action regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries © 2009 California Police Chiefs Assn. 24 All Rights Reserved are not a permitted use in any of their zoning districts as a violation of federal law. Martinez has adopted a permanent ordinance regulating the establishment of marijuana dispensaries. The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin have enacted neither regulations nor bans. A brief overview of the regulations enacted in neighboring counties follows. A. Alameda County Alameda County has a nineteen -page regulatory scheme which allows the operation of three permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other dispensaries, schools, parks, playgrounds, drug recovery facilities, or recreation centers. Permit issuance is controlled by the Sheriff, who is required to work with the Community Development Agency and the Health Care Services agency to establish operating conditions for each applicant prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the same panel responsible for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is final (subject to writ review in the Superior Court per CCP sec. 1094.5). Persons violating provisions of the ordinance are guilty of a misdemeanor. B. Santa Clara County In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in unincorporated portions of the county with permits first sought and obtained from the Department of Public Health. In spite of this regulation, neither the County Counsel nor the District Attorney's Drug Unit Supervisor believes that Santa Clara County has had any marijuana dispensaries in operation at least through 2006. The only permitted activities are the on-site cultivation of medical marijuana and the distribution of medical marijuana/medical marijuana food stuffs. No retail sales of any products are permitted at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor recommendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of 2001, the Board of Supervisors passed Resolution No. 012006, declaring San Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002, directing the city to explore the possibility of establishing a medical marijuana cultivation and distribution program run by the city itself. San Francisco dispensaries must apply for and receive a permit from the Department of Public Health. They may only operate as a collective or cooperative, as defined by California Health and Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may only sell or distribute marijuana to members. Cultivation, smoking, and making and selling food products may be allowed. Permit applications are referred to the Departments of Planning, Building Inspection, and Police. Criminal background checks are required but exemptions could still allow the operation of dispensaries by individuals with prior convictions for violent felonies or who have had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of © 2009 California Police Chiefs Assn. 25 All Rights Reserved Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the city at this time. D. Crime Rates in the Vicinity of MariCare Sheriff's data have been compiled for "Calls for Service" within a half -mile radius of 127 Aspen Drive, Pacheco. However, in research conducted by the El Cerrito Police Department and relied upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all crimes related to medical marijuana take place in or around a dispensary. Some take place at the homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete picture of the impact a marijuana dispensary has had on crime rates. The statistics show that the overall number of calls decreased (3,746 in 2005 versus 3,260 in 2006). However, there have been increases in the numbers of crimes which appear to be related to a business which is an attraction to a criminal element. Reports of commercial burglaries increased (14 in 2005, 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006) and miscellaneous burglaries (5 in 2005, 21 in 2006). Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Circle in Pacheco) was forcibly burglarized on June 11, 2006. $4,800 in cash was stolen, along with marijuana, hash, marijuana food products, marijuana pills, marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16,265. MariCare was also burglarized within two weeks of opening in Pacheco. On April 4, 2006, a window was smashed after 11:00 p.m. while an employee was inside the business, working late to get things organized. The female employee called "911" and locked herself in an office while the intruder ransacked the downstairs dispensary and stole more than $200 worth of marijuana. Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory. Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all categories (Fights: 5 in 2005, 7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005, 21 in 2006; Loitering: 11 in 2005, 19 in 2006; Verbal: 7 in 2005, 17 in 2006). Littering reports increased from 1 in 2005 to 5 in 2006. Public nuisance reports increased from 23 in 2005 to 26 in 2006. These statistics reflect the complaints and concerns raised by nearby residents. Residents have reported to the District Attorney's Office, as well as to Supervisor Piepho's office, that when calls are made to the Sheriffs Department, the offender has oftentimes left the area before law enforcement can arrive. This has led to less reporting, as it appears to local residents to be a futile act and residents have been advised that law enforcement is understaffed and cannot always timely respond to all calls for service. As a result, Pacheco developed a very active, visible Neighborhood Watch program. The program became much more active in 2006, according to Doug Stewart. Volunteers obtained radios and began frequently receiving calls directly from local businesses and residents who contacted them instead of law enforcement. It is therefore significant that there has still been an increase in many types of calls for law enforcement service, although the overall number of calls has decreased. Other complaints from residents included noise, odors, smoking/consuming marijuana in the area, littering and trash from the dispensary, loitering near a school bus stop and in the nearby church parking lot, observations that the primary patrons of MariCare appear to be individuals under age 25, © 2009 California Police Chiefs Assn. 26 All Rights Reserved and increased traffic. Residents observed that the busiest time for MariCare appeared to be from 4:00 p.m. to 6:00 p.m. On a typical Friday, 66 cars were observed entering MariCare's facility; 49 of these were observed to contain additional passengers. The slowest time appeared to be from 1:00 p.m. to 3:00 p.m. On a typical Saturday, 44 cars were counted during this time, and 29 of these were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients." E. Impact of Proposed Ordinance on MedDelivery Dispensary, El Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance should terminate operation of the dispensary in El Sobrante because the land use of that business would be inconsistent with both state and federal law. However, the Community Development Department apparently believes that MedDelivery can remain as a "legal, non- conforming use." F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County It is simply bad public policy to allow the proliferation of any type of business which is illegal and subject to being raided by federal and/or state authorities. In fact, eight locations associated with the New Remedies dispensary in San Francisco and Alameda Counties were raided in October of 2006, and eleven Southern California marijuana clinics were raided by federal agents on January 18, 2007. The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the January raids that "Today's enforcement operations show that these establishments are nothing more than drug-trafficking organizations bringing criminal activities to our neighborhoods and drugs near our children and schools." A Lafayette, California resident who owned a business that produced marijuana -laced foods and drinks for marijuana clubs was sentenced in federal court to five years and 10 months behind bars as well as a $250,000 fine. Several of his employees were also convicted in that case. As discussed above, there is absolutely no exception to the federal prohibition against marijuana cultivation, possession, transportation, use, and distribution. Neither California's voters nor its Legislature authorized the existence or operation of marijuana dispensing businesses when given the opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that were created by the Compassionate Use Act and Medical Marijuana Program Act. Further, the presence of marijuana dispensing businesses contributes substantially to the existence of a secondary market for illegal, street -level distribution of marijuana. This fact was even recognized by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v. Raich, supra, 125 S.Ct. at p. 2214.) As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County. • In September of 2004, police responded to reports of two men pointing a gun at cars in the parking lot at Monte Vista High School during an evening football game/dance. Two 19 -year-old Danville residents were located in the parking lot (which was full of vehicles and pedestrians) and in possession of a silver Airsoft pellet pistol designed to replicate a © 2009 California Police Chiefs Assn. 27 All Rights Reserved real Walther semi-automatic handgun. Marijuana, hash, and hash oil with typical dispensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 full), a bong with burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next to the school and that they both pointed the gun at passing cars "as a joke." They fired several BBs at a wooden fence in the park when there were people in the area. The owner of the vehicle admitted that the marijuana was his and that he was not a medicinal marijuana user. He was able to buy marijuana from his friend "Brandon," who used a Proposition 215 card to purchase from a cannabis club in Hayward. • In February of 2006, Concord police officers responded to a report of a possible drug sale in progress. They arrested a high school senior for two outstanding warrants as he came to buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man explained that he had a cannabis club card that allowed him to purchase marijuana, and admitted that he planned to re -sell some of the marijuana to friends. He also admitted to possession of nearly 7 grams of cocaine which was recovered. A 21 -year-old man was also arrested on an outstanding warrant. In his car was a marijuana grinder, a baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled with marijuana for smoking) with one end burned. The 21 -year-old admitted that he did not have a physician's recommendation for marijuana. • Also in February of 2006, a 17 -year-old Monte Vista High School senior was charged with felony furnishing of marijuana to a child, after giving a 4 -year-old boy a marijuana - laced cookie. The furnishing occurred on campus, during a child development class. • In March of 2006, police and fire responded to an explosion at a San Ramon townhouse and found three young men engaged in cultivating and manufacturing "honey oil" for local pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated form of cannabis chemically extracted from ground up marijuana with extremely volatile butane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it blew the garage door partially off its hinges. Sprinklers in the residence kept the fire from spreading to the other homes in the densely packed residential neighborhood. At least one of the men was employed by Ken Estes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, and Lake County. They were making the "honey oil" with marijuana and butane that they brought up from one of Estes' San Diego pot clubs after it was shut down by federal agents. • Also in March of 2006, a 16 -year-old El Cerrito High School student was arrested after selling pot cookies to fellow students on campus, many of whom became ill. At least four required hospitalization. The investigation revealed that the cookies were made with a butter obtained outside a marijuana dispensary (a secondary sale). Between March of 2004 and May of 2006, the El Cerrito Police Department conducted seven investigations at the high school and junior high school, resulting in the arrest of eight juveniles for selling or possessing with intent to sell marijuana on or around the school campuses. • In June of 2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drifting over the double yellow line separating north and southbound traffic lanes and driving in the bike lane. The 20 -year-old driver denied having consumed any alcohol, as he was the "designated driver." When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had © 2009 California Police Chiefs Assn. 28 All Rights Reserved smoked marijuana earlier (confirmed by blood tests). The young man had difficulty performing field sobriety tests, slurred his speech, and was ultimately arrested for driving under the influence. He was in possession of a falsified California Driver's License, marijuana, hash, a marijuana pipe, a scale, and $12,288. The marijuana was in packaging from the Compassionate Collective of Alameda County, a Hayward dispensary. He explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close friends. About $3,000 to $4,000 of the cash was from playing high- stakes poker, but the rest was earned selling marijuana while a freshman at Arizona State University. The 18 -year-old passenger had half an ounce of marijuana in her purse and produced a doctor's recommendation to a marijuana club in Oakland, the authenticity of which could not be confirmed. Another significant concern is the proliferation of marijuana usage at community schools. In February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is more common in the East Bay's more affluent areas. These areas had higher rates of high school juniors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA Today recently reported that the percentage of 12th Grade students who said they had used marijuana has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most -used illicit drug among that age group in 2006. KSDK News Channel 5 reported that high school students are finding easy access to medical marijuana cards and presenting them to school authorities as a legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon Valley High Schools in Danville have reported finding marijuana in prescription bottles and other packaging from Alameda County dispensaries. Marijuana has also been linked to psychotic illnesses.101 A risk factor was found to be starting marijuana use in adolescence. For all of the above reasons, it is advocated by District Attorney Kochly that a ban on land uses which violate state or federal law is the most appropriate solution for the County of Contra Costa. 4. SANTA BARBARA COUNTY According to Santa Barbara County Deputy District Attorney Brian Cota, ten marijuana dispensaries are currently operating within Santa Barbara County. The mayor of the City of Santa Barbara, who is an outspoken medical marijuana supporter, has stated that the police must place marijuana behind every other police priority. This has made it difficult for the local District Attorney's Office. Not many marijuana cases come to it for filing. The District Attorney's Office would like more regulations placed on the dispensaries. However, the majority of Santa Barbara County political leaders and residents are very liberal and do not want anyone to be denied access to medical marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date. 5. SONOMA COUNTY Stephan R. Passalocqua, District Attorney for the County of Sonoma, has recently reported the following information related to distribution of medical marijuana in Sonoma County. In 1997, the Sonoma County Law Enforcement Chiefs Association enacted the following medical marijuana guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants in a 100 -square -foot canopy. A qualified caregiver could possess or grow the above-mentioned amounts for each qualified patient. These guidelines were enacted after Proposition 215 was overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions in Sonoma County. Two Sonoma County juries returned "not guilty" verdicts for three defendants © 2009 California Police Chiefs Assn. 29 All Rights Reserved who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in the other) where they asserted a medical marijuana defense. These verdicts, and the attendant publicity, demonstrated that the community standards are vastly different in Sonoma County compared to other jurisdictions. On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors specifically enacted regulations that allow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any representative publicly oppose this resolution. With respect to the People v. Sashon Jenkins case, the defendant provided verified medical recommendations for five qualified patients prior to trial. At the time of arrest, Jenkins said that he had a medical marijuana card and was a care provider for multiple people, but was unable to provide specific documentation. Mr. Jenkins had approximately 10 pounds of dried marijuana and was growing 14 plants, which number of plants is consistent with the 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of 2007, the defense called five witnesses who were proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor conducted a thorough review of the facts and the law, and concluded that a Sonoma County jury would not return a "guilty" verdict in this case. Hence, no felony information was filed. With respect to the return of property issue, the prosecuting deputy district attorney never agreed to release the marijuana despite dismissing the case. Other trial dates are pending in cases where medical marijuana defenses are being alleged. District Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215, coupled with at least one United States Supreme Court decision that has not struck it down to date, these factors present current challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boundaries of the law. 6. ORANGE COUNTY There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of the delivery services operate out of the City of Long Beach in Los Angeles County. Orange County served a search warrant on one dispensary, and closed it down. A decision is being made whether or not to file criminal charges in that case. It is possible that the United States Attorney will file on that dispensary since it is a branch of a dispensary that the federal authorities raided in San Diego County. The Orange County Board of Supervisors has ordered a study by the county's Health Care Department on how to comply with the Medical Marijuana Program Act. The District Attorney's Office's position is that any activity under the Medical Marijuana Program Act beyond the mere issuance of identification cards violates federal law. The District Attorney's Office has made it clear to County Counsel that if any medical marijuana provider does not meet a strict definition of "primary caregiver" that person will be prosecuted. © 2009 California Police Chiefs Assn. 30 All Rights Reserved PENDING LEGAL QUESTIONS Law enforcement agencies throughout the state, as well as their legislative bodies, have been struggling with how to reconcile the Compassionate Use Act ("CUA"), Cal. Health & Safety Code secs. 11362.5, et seq., with the federal Controlled Substances Act ("CSA"), 21 U.S.C. sec. 801, et seq., for some time. Pertinent questions follow. QUESTION 1. Is it possible for a storefront marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code sec. 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code secs. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety Code secs. 11362.7-11362.83, as long as they are "cooperatives" under the MMPA. ANALYSIS The question posed does not specify what services or products are available at a "storefront" marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distributes medical marijuana. The term "dispensary" is also used specifically to refer to marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the term "store front dispensary," the question may be presuming that this type of facility is being operated. For purposes of this analysis, we will assume that a "dispensary" is a generic term that does not contemplate any particular business structure.' Based on that assumption, a "dispensary" might provide "assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person" and be within the permissible limits of the CUA and the MMPA. (Cal. Health & Safety Code sec. 11362.765 (b)(3).) 1 As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives." © 2009 California Police Chiefs Assn. 31 All Rights Reserved The CUA permits a "patient" or a "patient's primary caregiver" to possess or cultivate marijuana for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in specified quantities. (Cal. Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not fit within either of these categories. However, the MMPA also provides that "[q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under section 11357 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement]." (Cal. Health & Safety Code sec. 11362.775.) (Emphasis added).) Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "storefront dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Safety Code sec. 11362.775. See also People v. Urziceanu (2005) 132 Cal. App. 4th 747 (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative).) In granting a re -trial, the appellate court in Urziceanu found that the defendant could present evidence which might entitle him to a defense under the MMPA as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." (Id. at p. 785.) Whether or not "sales" are permitted under Urziceanu and the MMPA is unclear. The Urziceanu Court did note that the incorporation of section 11359, relating to marijuana "sales," in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the form only of donations, as were the facts presented in Urziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits," these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to © 2009 California Police Chiefs Assn. 32 All Rights Reserved be truly considered to be operating as a "cooperative."2 If these requirements are satisfied as to a "storefront" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a violation of both the CUA and the MMPA. QUESTION 2. If the governing body of a city, county, or city and county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges? ANSWER 2. If a city, county, or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federal law.3 ANALYSIS A. Federal Law Generally, legislators of federal, state, and local legislative bodies are absolutely immune from liability for legislative acts. (U.S. Const., art. I, sec. 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tenney v. Brandhove (1951) 341 U.S. 367 (legislative immunity applicable to state legislators); Bogan v. Scott -Harris (1998) 523 U.S. 44 (legislative immunity applicable to local legislators).) However, while federal legislators are absolutely immune from both criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. (United States v. Gillock (1980) 445 U.S. 360.) Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a bar to local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. 1.) In fact, the CSA itself provides that federal regulations do not 2 A "cooperative" is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000). 3 Indeed, the same conclusion would seem to result from the adoption by state legislators of the MMPA itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code secs. 11362.71, et seq.) © 2009 California Police Chiefs Assn. 33 All Rights Reserved exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSA] and that state law so that the two cannot consistently stand together." (21 U.S.C. sec. 903.) Based on the above provisions, then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA. The elements of the offense of aiding and abetting a criminal offense are: (1) specific intent to facilitate commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. (United States v. Raper (1982) 676 F.2d 841; United States v. Staten (1978) 581 F.2d 878.) Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants in some way associated themselves with the illegal venture; that they participated in the venture as something that they wished to bring about; and that they sought by their actions to make the venture succeed. (Central Bank, N.A. v. First Interstate Bank, N.A. (1994) 511 U.S. 164.) Mere furnishing of company to a person engaged in a crime does not render a companion an aider or abettor. (United States v. Garguilo (2d Cir. 1962) 310 F.2d 249.) In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976) 545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to make a criminal venture succeed. (United States v. Ehrenberg (E.D. Pa. 1973) 354 F. Supp. 460 cert. denied (1974) 94 S. Ct. 1612.) The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize, or permit any dispensary that is in violation of federal law regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed. It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "permit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. For instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of © 2009 California Police Chiefs Assn. 34 All Rights Reserved ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA. These are examples of legitimate business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and/or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the state should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affirmative obligation to discern whether businesses are violating federal law. The California Attorney General's Office will note that the State Board of Equalization ("BOE") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain a seller's permit. (See http://www.boe.ca.gov/news/pdf/medse11er2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller's permit does not mean you have authority to make unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise."' The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that persons so charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and/or regulating marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate within a jurisdiction.4 All of this discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating marijuana dispensaries that promote the use of marijuana as medicine. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted. 4 Of course, the question arises as to how far any such liability be taken. Where can the line be drawn between any permit or regulation adopted specifically with respect to marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed infra? If local public entities are held responsible for adopting an ordinance authorizing and/or regulating marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of "medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana in compliance with state law be criminally liable if it provided electricity, water, and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and/or regulates marijuana dispensaries? © 2009 California Police Chiefs Assn. 35 All Rights Reserved B. State Law Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. (People v. Dole (1898) 122 Cal. 486; People v. Stein (1942) 55 Cal. App. 2d 417.) A person who innocently aids in the commission of the crime cannot be found guilty. (People v. Fredoni (1910) 12 Cal. App. 685.) To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act— that is, that he criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. (People v. Terman (1935) 4 Cal. App. 2d 345.) To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cal. App. 2d 100.) "Abet" implies knowledge of the wrongful purpose of the perpetrator of the crime. (People v. Stein, supra.) To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful purpose of the perpetrator, abet by inciting or encouraging him. (People v. Le Grant (1946) 76 Cal. App. 2d 148, 172; People v. Carlson (1960) 177 Cal. App. 2d 201.) The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to federal law immunities available to local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.App.4th 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).)5 Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that 5 Although the Steiner Court notes that "well-established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context of federal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separation of powers doctrine may bar such prosecution. (Cal. Const., art. III, sec. 3.) As federal authorities note, bribery, or other criminal charges that do not depend upon evidence of, and cannot be said to further, any legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279 ["Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts."]; United States v. Brewster, 408 U.S. 501 [indictment for bribery not dependent upon how legislator debated, voted, or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not carrying through of vote by legislator]; United States v. Swindall (11th Cir. 1992) 971 F.2d © 2009 California Police Chiefs Assn. 36 All Rights Reserved they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state law. QUESTION 3. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges? ANSWER 3. After adoption of an ordinance authorizing or regulating marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary. ANALYSIS Based on the state law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a marijuana dispensary in violation of state law. Since an ordinance authorizing and/or regulating marijuana dispensaries would necessarily only be authorizing and/or regulating to the extent already permitted by state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety Code sec. 11362.83 ("Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.").) Moreover, as discussed above, there may be legislative immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with state law regarding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. © 2009 California Police Chiefs Assn. 37 All Rights Reserved QUESTION 4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability? ANSWER 4. Approving an ordinance authorizing or regulating marijuana dispensaries may subject the jurisdictions to civil or criminal liability. ANALYSIS Under federal law, criminal liability is created solely by statute. (Dowling v. United States (1985) 473 U.S. 207, 213.) Although becoming more rare, municipalities have been, and still may be, criminally prosecuted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The Criminal Prosecution of Local Governments, 72 N.C. L. Rev. 1197 (1994) (discussion of history of municipal criminal prosecution).) The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." (21 C.F.R. sec. 1300.01 (34). See also 21 C.F.R. sec. 1301.02 ("Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter.").) By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to criminal prosecution for a violation of federal law. Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under state law relating to any issuance or denial of permits. QUESTION 5. Does the issuance of a business license to a marijuana dispensary involve any additional civil or criminal liability for a city or county and its elected governing body? ANSWER 5. Local public entities will likely not be liable for the issuance of business licenses to marijuana dispensaries that plan to dispense crude marijuana as medicine. © 2009 California Police Chiefs Assn. 38 All Rights Reserved ANALYSIS Business licenses are imposed by cities within the State of California oftentimes solely for revenue purposes, but are permitted by state law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a generally applicable tax on all business conducted within the entity's jurisdiction. OVERALL FINDINGS All of the above further exemplifies the catch-22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of the existence of the CUA and the MMPA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to regulate the location and operation of medical marijuana facilities within their jurisdiction.6 102 However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and/or local legislators or local public entities remains to be seen. But, based on past practices of locally based U.S. Attorneys who have required seizures of large amounts of marijuana before federal filings have been initiated, this can probably be considered unlikely. 6 Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California Police Chiefs Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: "Riverside County Office of the District Attorney," [White Paper, Medical Marijuana: History and Current Complications, September 2006];"Recent Information Regarding Marijuana and Dispensaries [El Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore]. © 2009 California Police Chiefs Assn. 39 All Rights Reserved CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 suspect. No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on this issue. Furthermore, storefront marijuana businesses are prey for criminals and create easily identifiable victims. The people growing marijuana are employing illegal means to protect their valuable cash crops. Many distributing marijuana are hardened criminals.103 Several are members of stepped criminal street gangs and recognized organized crime syndicates, while others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed, and murdered. Those buying and using medical marijuana are also being victimized. Additionally, illegal so-called "medical marijuana dispensaries" have the potential for creating liability issues for counties and cities. All marijuana dispensaries should generally be considered illegal and should not be permitted to exist and engage in business within a county's or city's borders. Their presence poses a clear violation of federal and state law; they invite more crime; and they compromise the health and welfare of law-abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved ENDNOTES U.S. Const.. art. VI, cl. 2. 2 U.S. Const., art. I, sec. 8, cl. 3. 3 Gonzales v. Raich (2005) 125 S.Ct. 2195 at p. 2204. 4 Gonzales v. Raich. See also United States v. Oakland Cannabis Buyers' Cooperative (2001) 121 S.Ct. 1711, 1718. 5 Gonzales v. Raich (2005) 125 S.Ct. 2195; see also United States v. Oakland Cannabis Buyers' Cooperative 121 S.Ct. 1711. 6 Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Times, 19 March 2009, available at http://wwwlatimes.com/news/local/la-me-medpot19-2009mar19.0,4987571.s tory 'See People v. Mower (2002) 28 Ca1.4th 457, 463. 8 Health and Safety Code section 11362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. 9 H&S Code sec. 11362.5(a). 1° H&S Code sec. 11362.7 et. seq. 11 H&S Code sec. 11362.7. 12 H&S Code secs. 11362.71-11362.76. 13 H&S Code sec. 11362.77. 14 H&S Code secs. 11362.765 and 11362.775; People v. Urziceanu (2005) 132 Ca1.App.4t1i 747 at p. 786. 15 H&S Code sec. 11362.77; whether or not this section violates the California Constitution is currently under review by the California Supreme Court. See People v. Kelly (2008) 82 Cal.Rptr.3d 167 and People v. Phomphakdy (2008) 85 Cal.Rptr. 3d 693. 16 H&S Code secs. 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. 17 H&S Code sec. 11362.7(h) gives a more comprehensive list – AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistent muscle spasms, seizures, severe nausea, and any other chronic or persistent medical symptom that either substantially limits the ability of a person to conduct one or more life activities (as defined in the ADA) or may cause serious harm to the patient's safety or physical or mental health if not alleviated. 18 People v. Mower (2002) 28 Ca1.4th 457 at p. 476. 19 Id. Emphasis added. 20 Packel, Organization and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970), 4-5. 21 Sam Stanton, "Pot Clubs, Seized Plants, New President—Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, 19A. 22 For a statewide list, see http://canorml.org/prop/cbclist.html. 23 Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Magazine, June 2006. 24 H&S Code sec. 11362.765(c); see, e.g., People v. Urziceanu, 132 Cal.App.4th 747 at p. 764. 25 Gonzales v. Raich, supra, 125 S.Ct. at page 2195. 26 People v. Urziceanu (2005) 132 Cal.App.4th 747; see also H&S Code sec. 11362.765. 27 Israel Packel, 4-5. Italics added. 28 H&S Code sec. 11362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California Lawyer Magazine, June 2006. 3o H&S Code secs. 11362.5(e) and 11362.7(d)(1), (2),(3), and (e); see also People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1395. 31 People v. Mower, 28 Ca1.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonville Marijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but Officials Believe Killing Related to Pot Growing," Santa Rosa Press Democrat, 19 November 2005, available athttp://www1.pressdemocrat.com/apps/pbcs.dli/article?AID=/20051119/NEWS/511190303/1033/ 33 "Medical Marijuana Shop Robbed," Santa Barbara Independent, 10 August 2006, available at http://independent.com/news/2006/aug/10/medical-marijuana-shop-robbed/ 34 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson Valley Advertiser, 16 June 2004, available at http://www.theava.com/04/0616-cerelli.html © 2009 California Police Chiefs Assn. 41 All Rights Reserved 35 Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at http://findarticles.com/p/articles/mi gn4176/is 20060808/ai n16659257 36 Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at http://www.highbeam.com/doc/1P2-7021933.html 37 Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005, available at http://findarticles.com/p/articles/mi gn4176/is 20050910/ai nI5809189/print 38Laura Clark, "Pot Dispensary Owner Slain at Home." Ukiah Daily Journal, 19 November 2007, available at http://www.marijuana.com/drug-war-headline-news/24910-ca-pot-dispensary-owner-slain-home.html 39 Laura Clark, `Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah Daily Journal, 19 November 2005; Laura Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, "Laytonville Marijuana Guru Shot to Death," Santa Rosa Press Democrat, 19 November 2005; Glenda Anderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen Who Robbed Laytonville Man Familiar With Home," Santa Rosa Press Democrat, 20 November 2005, available at http://www.equalrights4all.us/content/view/192/50/ 4° Mark Scaramella, "The Mendo Pot Chronicles," Anderson Valley Advertiser, 3 October 2007, available at http://www.theava.com/04/0616-cerelli.html 41 Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, Even Legally," New York Times, 13 March 2007, available at http://www.nytimes.co n/2007/03/02/us/02cannabis.html?ex=1181880000&en=c609936094adda50&ei=5070 42 Tami Abdollah & Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007, available at http://www.californiapolicechiefs.org/nav files/marijuana_files/bellflower_shooting_death.pdf 43 Will Bigham, "Claremont Marijuana Dispensary Burglarized," Inland Valley Daily Bulletin, 27 January 2007, available at http://www.dailybulletin.com/ci 5104514 44 Planning Commission Agenda, available at http://www.el-celTito.org; see also Alan Lopez, "El Cerrito Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at http://www.thc-ministry.net/fonun/archive/el-cerrito-moves-to-ban-cannabis-clubs-6974.htm 45 Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 17 August 2006, available at http://www.lca-uk.org/lcaforum/viewtopic.php?f=6&t=2436&start=0&sid=15b6da115a0da43facb17644195cbb 46 Ortega. 47 Greg Beato, "Pot Clubs in Peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEA?" Reason Magazine, February 2007, available at http://www.reason.com/news/show/118314.html; Craig T. Steckler, City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006; Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 13 June 2007. 48 Jeff McDonald, "15 Held in Raids on Pot Stores," San Diego Union -Tribune, 7 July 2006, available at http://www.signonsandiego.com/uniontrib/20060707/news 7m7pot.html 49 McDonald; Beato. 5o Cal. H&S Code sec. 11362.5. 51 Ethan Stewart, "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities," Santa Barbara Independent, 3 May 2007, available at http://independent.com/news/2007/may/03/medical-marijuana-movement-grows-Santa-barbara/; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," Modesto Bee, 28 September 2006. 52 McDonald. 53 Stewart. 54 Stewart. 55 Stewart. 56 National Drug Intelligence Center, Domestic' Cannabis Cultivation Assessment 2007, February 2007; available at http://www.usdoj.gov/ndic/pubs21/22486/; Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime," San Francisco Chronicle, 23 June 2005, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/x/2005/06/23/MNGRODDG321.DTL; LAPD report information, 2007. © 2009 California Police Chiefs Assn. 42 All Rights Reserved 57 Van Derbeken, et al. 58 Kate Heneroty, "Medical marijuana indictment unsealed," Jurist, 24 June 2005, available at http://jurist.law.pitt.edu/paperchase/2005/06/medical-marijuana-indictment-unsealed.php; Stacy Finz, "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids," San Francisco Chronicle, 24 June 2005, available at http://sfgate.com/cgi-bin/article.cgi?file=/c/x/2005/06/24/BAGV9DEC4C 1 .DTL 59 Organized Crime Behind 'Medical'Marijuana Dispensary in California," Pushingback. 29 September 2006, available at http://pushingback.com/blogs/pushing back/archive/2006/09/29/791.aspx; "Ashton. 60 City of San Diego, Crime Statistics, 2007, available at http://www.sandiego.gov 61 National Drug Intelligence Center, Marijuana, January 2001, available at http://www.usdoj.gov 62 George Anastasia, "Viet Gangs on the Rise Again—The Emerging American Underworld—Gangs' Plant -filled Houses a Growing Part of Drug Trade," Chronicle of Boredom, 18 April 2007. 63 Will Bigham, "Houses Linked to Asian Gangs," Inland Valley Daily Bulletin, 23 September 2007, available at http://www.dailybulletin.com/newsc1_6980682 64 Bigham, 23 September 2007. 65 Feds Came and Went—Now What? Humboldt County News, 30 June 2008, available at http://news.humcountv.com/archives/2008/6 66 LAPD Report Number DR#060625000, 16 August 2006. 67 LAPD Report Number DR#060625001, 16 August 2006. 68 Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006; Johnson; Craig T. Steckler, City of Fremont Police Department; Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006. 69 Stewart. 70 Johnson. 71 Ashton. 72 "What has the U.S. DEA said about medical marijuana? " Medical Marijuana ProCon.org, 2005; "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org., 2009, available at http://medicalmarijuana.procon.org/viewanswers.asp?questionID=000630 73 Jim Avila, "Marijuana McMansions: Cops Say Organized Crime Is Sending Families Into the Suburbs to Grow Marijuana," ABC News, 14 June 2007, available at http://abcnews.go.com/print?id=3242760 74 Avila; Anastasia; "DEA Raids Miami Grow House," CBS5.com, 30 April 2008, available at tittp://cbs5.com/national/dea.raid.miami.2.712958.1-itml 75 Anastasia. 76 Bigham, 23 September 2007; Ethan Baron, "Angel Linked to Grow -op," The Province (CNBC), 22 May 2005, available at http://www.mapinc.org/newstcl/v05/n823/a02.html 77 Bigham, 23 September 2007. 78 Bigham, 23 September 2007. 79 Heather Allen, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops," HeraldTribune.com, 24 July 2007, available at http://www.heraldtribune.com/article/20070724/NEWS/707240498 80Eric Bailey and Tim Reiterman, "Where Mary Jane is the girl next door," Los Angeles Times, 31 May 2008, available at http://articles.latimes.com/2008/may/31/local/me-pot31 81 Eureka House Fire the Result of You -know -what," Humboldt County News, 7 September 2008, available at http://news.humcounty.com/; written remarks of Arcata Police Chief Randy Mendosa, 1 March 2009. 82 Jesse McKinley, "Marijuana Hotbed Retreats on Medicinal Use," New York Times, 9 June 2009, available at http://www.nytimes.com/2008/06/09/us/pothtml?J=1&em&ex=1213329 83 Deputies: Fire Damages Holiday Marijuana Grow Home, tampabay.com, 15 February 2008, available at http://blogs.tampabay.com/breakingnews/2008/02/holiday-fire-ma.html 84 Don Ruane, "Grow Houses Can Impact Utility Bills, Public Safety," News-press.com, 12 April 2008, available at http://www.news-press.com/apps/pbcs.dll/article?AID=/20080412/NEW SO 103/804120394 85"DEA Raids Miami Grow House." 86 Sandy Louey, "Arrests Take Toll on Local Gang," The Sacramento Bee, 14 August 2008, available at http://www.sacbee.com/elkgrove/v-print/story/1152310.html 87Avila. © 2009 California Police Chiefs Assn. 43 All Rights Reserved 88 Scott Glover, "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges," Los Angeles Times, 6 August 2008, available at http://articles.latimes.com/2008/aug/06/local/me-pot6 89 Bailey and Reiterman 90 Janis Ramsay, "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says," The Barrie Advance, 25 August 2008, available at http://www.mapinc.org/drugnews/v08/n818/a06.html 91 Avila. 92 Bailey and Reiterman 93 Steve Davis, "Grow Security," Cannabis Culture Magazine, 6 August 2004, available at http://www.cannabisculture.com//articles/3441.html 94 Bailey and Reiterman 95 See People v. Urziceanu, 132 Cal.App.4th 747. 96 City of Pleasant Hill Presentation to Its Planning Commission by Planning Division Staff on April 24, 2007. 97 Office Consolidation: By-law 361-2004 of the City of Brampton, Ontario, Canada. 98Bill McCollum, "Landmark Bill Targeting Marijuana Grow Houses Becomes Law," Attorney General Bill McCollum News Release, 17 June 2008, available at http://myfloridalegal.com/newsrel.nsf/newsreleases/AFAE7E2BCC 1688D 18525746B0070D23B 99 "Asian Gangs Move Grow -ops," The Asian Pacific' Post, 27 September 2007, available at http://www.asianpacificpost.com/portal2/ff8080811548063 f0 1 1 548240 1 d00003_asian_gangs_move_grow ops .do 100 See Asian Gangs Move Grow -ops. 101 See "Does Marijuana Contribute to Psychotic Illnesses?" 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Retrieved January 8, 2009, from http://www.thc-ministry.net/forum/archive/el-cerrito-moves-to-ban-cannabis-clubs-6974.htm © 2009 California Police Chiefs Assn. 47 All Rights Reserved Louey, Sandy. "Arrests Take Toll on Local Gang." The Sacramento Bee, 14 August 2008. Rerieved January 8, 2009, from http://www.sacbee.com//elkgrove/v-print/story/1152310.html McClure, Laura. "Fuming Over the Pot Clubs." California Lawyer Magazine, June 2006. McCollum, Bill. "Landmark Bill Targeting Marijuana Grow Houses Becomes Law." Attorney General Bill McCollum News Release, 17 June 2008. Retrieved January 9, 2009, from http://myfloridalegal.com/newsrel.nsf/newsreleases/AFAE7E2BCC1688D18525746B0070D23B McDonald, Jeff. "15 Held in Raids on Pot Stores," San Diego Union -Tribune, 7 July 2006. Retrieved February 24, 2009, from http://www.signonsandiego.com/uniontrib/20060707/news 7m7pot.html McKinley, Jesse. "Marijuana Hotbed Retreats on Medicinal Use." New York Times, 9 June 2008. Retrieved March 19, 2009, from http://www.nytimes.com/2008/06/09/us/09pot.html? r=l&em=&ex=1213329 "Medical Marijuana Shop Robbed." Santa Barbara Independent, 10 August 2006. Retrieved January 9, 2009, from http://independent.com/news/2006/aug/10/medical-marijuana-shop-robbed/ Meyer, Josh, and Scott Glover. "U.S. Won't Prosecute Medical Pot Sales," 19 March 2009. Retrieved March 21, 2009, from http://www.latimes.com/news/local/la-me-medpot19-2009mar19,0,4987571.story Miller, Tim. City of Anaheim Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006. National Drug Intelligence Center. Domestic cannabis cultivation assessment 2007, 26 February 2007. Retrieved January 9, 2009, from http://www.usdoj.gov/ndic/pubs21/22486/ Office Consolidation: By-law 361-2004 of the Corporation of the City of Brampton, 22 November 2004. "Organized Crime Behind 'Medical' Marijuana Dispensary in California." Pushingback, 29 September 2006. Retrieved January 9, 2009, from http://pushingback.com/blogs/pushing back/archive/2006/09/29/791.aspx Ortega, Fred. "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 28 August 2006. Retrieved January 9, 2009, from http://www.lca- uk.org/lcaforum/viewtopic.php?f=6&t=2436&staart=0&sid=15b6da115a0da43facb44195cbb © 2009 California Police Chiefs Assn. 48 All Rights Reserved Packel, Israel. The Organization and Operation of Cooperatives, 4th ed. Philadelphia: American Law Institute, 1970. Ramsay, Janis. "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says." The Barrie Advance, 25 August 2008. Retrieved January 9, 2009, from http://www.mapinc.org/drugnews/v08/n818/a06.html Ruane, Don. "Grow Houses Can Impact Utility Bills, Public Safety." News-press.com, 12 April 2008. Retrieved January 9, 2009, from http://www.news-press.com/apps/pbcs.dll/article?AID=/20080412/NEWS0103/804120394 Scaramella, Mark. "The Mendo Pot Chronicles." Anderson Valley Advertiser, 3 October 2007. Retrieved January 9, 2009, from http://www.theava.com/07/1003-mendopot.html Scaramella, Mark. "No Good Deed Goes Unpunished." Anderson Valley Advertiser, 16 June 2004. Retrieved January 9, 2009, from http://www.theava.com/04/0616-cerelli.html Stanton, Sam. "Pot Clubs, Seized Plants, New President—Marijuana's Future Is Hazy." Sacramento Bee, 7 December 2008, 19A. Steckler, Craig T. City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries – Potential Secondary Impacts, 20 June 2006. Stewart, Ethan. (2007, May 3). "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007. Retrieved January 9, 2009, from http://independent.com/news/2007/may/03/medical-marijuana-movement-grows-santa-barbara/ Van Derbeken, Jaxon, Charlie Goodyear, and Rachel Gordon. "3 S.F. pot clubs raided in probe of organized crime." San Francisco Chronicle, 23 June 2005. Retrieved January 9, 2009, from http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/06/23/MNGRODDG321.DTL "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org, 2009. Retrieved February 24, 2009, from http://medicalmarijuana.procon.org/viewanswers.asp?questionlD=000630 "What has the U.S. DEA said about medical marijuana?" Medical Marijuana ProCon.org, 2005. © 2009 California Police Chiefs Assn. 49 All Rights Reserved (K) MATERIALS DATED NOVEMBER 4, 2013 IN SUPPORT OF MEDICAL MARIJUANA FACILITIES, SUBMITTED TO CITY COUNCIL BY MCS OF CENTRAL WASHINGTON. Distributed at the Meeting I (4 "r.3 X11 MCS OF CENTRAL WASHINGTON 6401 State Route 410 Neches, WA, 98937 Phone (509)658-1106 ttiCaRkteMiiiIM 11/4/2013 Yakima City Council Members Re: Moratorium on Recreational Marijuana Dear Council members, I write to introduce myself and the entity for which I serve as Executive Director, which Is MCS of Central Washington, a Washington nonprofit corporation. MCS is a medical marijuana cooperative. We have helped numerous patients for whom medical marijuana eases pain and suffering and forwhom, like in my case, has been life-saving (which 1'11 elaborate on below), Our organization is and has been following closely the status of legislation and rule-maldng at the state and local level; for example, we attended the City Council Study Session on October B, 2013 at which the moratorium to enable the thoughtful consideration of an ordinance regulating recreational marijuana was approved, we've previously contacted and met with the Yakima Sheriff's office and City legal department to share information about our organization, and we're monitoring closely the state rule-making processes such este Liquor Control Board rule-maldng efforts both with regard to 1-502, as well as the LCB's October 21, 2013 draft recommendations of the Medical Marijuana Work Group. In short, we're a well -Informed group advocating the right to treat patients with legitimate medical needs and we want our industry to be regulated to remove the charlatans, black market profiteers, and gang 'businessmen'. But right now, those Illegitimate businesses prosperwithln the City of Yakima, while ours, which adheres to the rules in place, suffers because of the outright ban underYMC 15.01.035. Now, why I'm such a supporter of responsible, regulated medical marijuana within the Yakima City limits. I am a patient, too. Mystery began at age fourteen, when I was diagnosed with ulcerative colitis. A horrible Inflammatory bowel disease. It progressed at an astonishing rate and by nineteen I was forced to drop out of college due to the severity of mysymptoms. Within six months my body had shut down end began to reject any type of nourishment By the time 1 was admitted into Virginia Mason hospital I was nearing seventy pounds and it was determined I couldn't survive the surgeries. After exhausting all avenues, my surgeon asked for my permission to try cannabis as an option to spark my body's need for food. A few hours latera nurse tame back from a local underground dispensary and they wheeled me down to the showers undergoing a remodel. I smoked myflrst joint atseventythree pounds and dying. I finally ate. It didn't come backup and 1 didn't double over In pain or blackout. I gained enough weight to survive the Initial surgery that removed my colon and the majority of my large intestine, and 1 am only here due to cannabis's ability to solve a problem modem medidne could not. I since have used a cannabis related postsurgical care plan and have not needed to see a doer but a handful of times since having had my surgeries. All of us at MCS have similar storieswhich macre us believers in the responsible use of medical cannabis However, another source of inspiration comes from the countless tear filled thanks' we receive from our members and their family members who have found relief for the first time with cannabis. Such a benign product, with such phenomenal potential, should not be kept from those searching for aitemative means of medical relief in our community. What we find Illogical, is that the 'recreational' dispensation of marijuana (for fun) Is being considered for rule-making legislation (not that we're necessarily opposed to that), while the outright ban on medical marijuana still appears to be staunchly supported bythe Council. Our rhetorical question is why we're willing to ban the most commonly and overwhelmingly accepted version of cannabis use , medicinal while encoureging the most controversial version of use, recreational? Recreational cannabis can not provide the care and level of medicinal benefits that medical cannabis can. We have specifically developed cannabis, which we produce with the aid of professional agronomists, botanists, and horticulturallsts for patient Illnesses and diseases. In, fact, the two "versions" of cannabis medicinal vs. recreational, couldn't be more different Asking a medical cannabis patient to go to a recreational store for their medicine Is like telling a terminally ill cancer patient to try a Budwelserto cope with theirsymptoms. I understand that the upcoming City Council meeting is simply to approve the moratorium on enactment of recreational marijuana regulations. We'II nevertheless be In attendance. I'll make a point of introducing myself and MCS to the Council, with the hopes that along with this letter we can commence a discussion with the Council about m-vislting the topic of regulating medical marijuana for authorization within Yakima City limits, as the State is presently examining the issue on a widerscale. Sincerely, Jeffrey McPhee Executive Director MCS of Central Washington 6401 State Route 410 Nachos, WA 98937 509-658-1106 509-406-5783 Coalition for Cannabis Ethics and Standards This document was approved by the Coalition for Cannabis Standards and Ethics. It contains minimum standards for Production Facilities for Coalition members. It is our hope that these standards will serve the medical cannabis community. In an effort to self - regulate the cannabis industry, we will hold ourselves to the following minimum standards: Production Facilities Shall: 1. State and local business licenses are to be obtained and maintained by the business entity operating the production facility. 2. Production facilities are to be built to comply with Local building code. 3. Pesticide handler permits are to be obtained and maintained for any applicator of chemicals to any cannabis crops. 4. Material Safety Data Sheets (MSDS) for all applicable hazardous materials are to be kept on site and available to employees that may be exposed to them as required by state law. 5. Production facilities are to have and maintain an adequate security system to prevent robbery and theft. 6. Production facilities are to maintain proper ventilation systems to ensure that there is no odor exterior of the facility. 7. Production facilities will not be closer than 500' from an accredited K-12 school and adhere to local zoning laws. S. No exterior signage is to be used to identify the presence of a production facility. 9. Production facilities will not have any firearms on the premises at any time. 10. No cannabis should be visible from the outside of the production facility including when exterior doors are opened. 11. No grow supplies shall be stored in the exterior of the production facility that may be viewable to the public. 12. Exterior of production facilities are to be maintained and have a clean and orderly appearance. 13. Proper flushing is to be performed at the end of the grow cycle of any crop to remove excess nutrients and chemicals. Flushing time and technique is to be recorded on Crop Lifecycle Information Sheet (CLIS). 14. Proper curing is to be performed to ensure quality of medicine and avoid contaminants. Curing method is to be detailed on CLIS sheet. 15. All crops are to have a CLIS detailing grow methods and chemicals that is made available to the access point. Business information will not be shared with the consumer. 16. All waste by-products are to be disposed of in an environmentally responsible manner. Coalition for Cannabis Ethics and Standards Proposed Guidelines for Processors This document was approved by the Coalition for Cannabis Standards and Ethics. I1. contains minimum standards for Medicated Edibles for Coalition members. It is our hope that these standards will serve the medical cannabis community. In an effort to self -regulate the cannabis industry, we will hold ourselves to the following minimum standards: Processors shall: 1. Pay all governmental liabilities that are incurred as a result of doing business in Washington State, including: a, B & O (State) b. Payroll 1 Employee (Federal/L&I/Employment Security) C. Federal Income Tax d. Business Liability Insurance 2. Obtain and maintain King County Food Workers Permit(s) and abide by the following standards: a. All patients engaged in production must have a valid Food Workers Permit b. Copies of patient(s) King County Food Workers Pennit(s) or permit number must be made available to Access Points 3. Follow applicable FDA labeling guidelines by providing an easy to read label that provides the following elements: a. Principal Display Panel (Product Name and Net Weight) b. Nutrition Panel (Ingredients, Nutrition Facts, Amount of Cannabis by Gram In Individual Product and Manufacturer/Distributor Contact) c. Legal & Cautionary Panel (Expiration Date, Reference To WA Medical Cannabis Law, Warning To "Keep Away From Children', "No Resale' and "No Consumption While Operating Heavy Machinery' Instructions) 4. Follow all applicable FDA packaging requirements including: a. Providing food grade, air tight packaging with tamper resistant closures b. Packaging products immediately post -production 5. Maintain Processing Facility standards, which Include: a. During production, area is to be used exclusively for processing b. Only sanitized, non -porous surfaces are to be used in production C. Food Worker Permit(s) are to be made accessible in facility 6. Not produce edibles REQUIRING refrigeration or hot handling in a personal kitchen. Proper facilities for the production of edibles REQUIRING refrigeration or hot handling include: a. King County Department of Health regulated food establishments b. Department of Agriculture regulated food processing establishments 7. Verify that all medicine used in product comes from authorized Washington State Patient(s) by carefully choosing patient growers or utilizing chain of custody & testing credentials 8. Maintain branding and advertising that does not target minors 9. Practice exterior odor control and maintain compliance with applicable Chronic Nuisance laws and local zoning regulations Coalition for Cannabis Standards and Ethics Access Point Subcommittee This document was approved by the Coalition for Cannabis Standards and Ethics. It contains minimum standards for Access Points for Coalition members. It is our hope that these standards will serve the medical cannabis community. In an effort to self -regulate the cannabis industry, we will hold ourselves to the following minimum standards: Access points shall: 1. Pay all govemmental liabilities that are incurred as a result of doing business in Washington State. These include: a. Business & Occupation taxes. b. Employment taxes. c. Federal income tax. d. Retail tax should be paid unless this is contrary to the advice of the access point's legal counsel. 2. Carry standard business liability insurance. 3. Require all staff members that handle medicine to obtain Food Handler's Permits. 4. Adhere to strict initial verification standards before patient obtains medicine including: a. Checking valid Government issued ID. b. Checking tamper proof recommendation. c. Verifying patient recommendation via i. online check for active doctors license by using 1. www.doh.wa.gov. ii. phone or online verification with doctors' office. 5. Adhere to Care Providers policies including: a. Bringing patient in to facility for the first visit. b. Requiring Care Provider Documentation, Medical power of attorney preferred c. Access points are not required to accommodate care providers. 6. Adhere to crime prevention standards including: a. Positively engaging with communities and business neighbors. b. Maintaining a comprehensive security system including: i. camera system(s). ii. alarm system(s). iii. panic button(s). c. Possessing no firearms on premises. d. Requiring a minimum of one locked door between public and medicine. 7. Adhere to policies for patients under age 18 including: a. Requiring one verified legal guardian who is designated as care provider to be present at all times. b. Requiring care providers to make transactions and cavy out medicine. c. Access points are not required to accommodate patients under I8. 8. Secure any patient files by keeping hard copies under lock and key for staff access only and maintaining secure encryption protocols for electronic files. 9. Maintain tasteful and professional advertising, which does not target minors. 10. Create and maintain policies for quality control of medicine including: a. Visual inspection. b. Requiring producer to use non -systemic pesticides during flower cycle. c. Requiring producer to control pathogens including: i. Mites / Thrips / Other Pests Coalition for Cannabis Standards and Ethics Access Point Subcommittee it. Molds / Mildew iii. Animal hair / Other foreign adulterants 11. Require that all medicine is produced in Washington State. 12. Adhere to Chapter 70.160 RCW: Smoking in public places (formerly Washington clean indoor air act). 13. Provide physical accessibility to patients by maintaining ADA compliance. r• Medical Cannabis Facts Sheet A 2002 review of medical literature by Franjo Grotenhermen states that medical cannabis has established effects in the treatment of nausea, vomiting, premenstrual syndrome, unintentional weight loss, insomnia and lack of appetite. Other "relatively well -confirmed" effects were in the treatment of " pasticity painful conditions, especially neurogenic pain, movement disorders, asthma, [a ndlq laucoma".[l21 Preliminary findings indicate that cannabis -based drugs could prove useful in treating adrenal disease inflammatory bowel disease,miaraines, fibromvaloia, and related conditions.lJ Medical cannabis has also been found to relieve certain symptoms of multiple sclerosis1211 and spinal cord iniurieSl22e23Ilz41(2511261 by exhibiting antispasmodic and muscle -relaxant properties as well as stimulating appetite. Other studies state that cannabis or cannabinoids may be useful in treating alcohol abuse,tvi amvotrophic lateral sclerosis 12e12slcollagen-induced arthritis,1Q asthma ail atherosclerosis G3:'' bipolar disorder, 'I1 colorectal cancer,MI HIV-associated sensory neuropathy,1 deraression [37{ w39TM'01 dvstonia,all epilepsv,t421T43l44l digestive diseases, gliorrias,r4sn471 hepatitis C,I4BiNtlrltinoton's disease,1 [eukemi4,0 skin tumors, methicillin-resistant Staphylococcus aureus (MRSA),111 Parkinson's disease,IM pruritus r5SGS81 posttraumatic stress disorder (PTSD),M psoriasis !tel sickle-cell disease sleep apnea, and anorexia nervosa! Controlled research on treatingTourette syndrome with a synthetic version of THC called (Marinol), showed the patients taking the pill had a beneficial response without serious adverse effects;' other studies have shown that cannabis "has no effects on tics and increases the individuals inner tensiorr.M Case reports found that cannabis helped reduce tlf , but validation of these results requires longer, controlled studies on larger samples. 5 A study done by Craig Reinarman surveyed people in California who used cannabis found they did so for many reasons. Reported uses were for pain relief, muscle spasms, headaches, anxiety, nausea, vomiting, depression, cramps, panic attacks, diarrhea, and itching. Others used cannabis to improve sleep, relaxation, appetite, concentration or focus, and energy. Some patients used it to prevent medication side effects, anger, involuntary movements, and seizures, while others used it as a substitute for other prescription medications and alcohol!' Studies Safety of cannabis Main article: Long-term effects of cannabis From The Lancet, 'There are no confirmed published cases worldwide of human deaths from cannabis poisoning, and the dose of THC required to produce 50% mortality in rodents is extremely high compared with other commonly used dnigs". e7 According to Associate Professor Emeritus of psychiatry at Harvard Medical School Lester Grinspoon, "When cannabis regains its place in the US Pharmacopeia a status It lost alter the passage of the Marijuana Tax Act of 1937, it will be seen as one of the safest drugs in that compendium"!M There are medical reports of occasional infarction, stroke and other cardiovascular side effects.1-a Marijuana's cardiovascular effects are not associated with serious health problems for most young, healthy users! Researchers have reported in the International Joumal of Cardiology, "Marijuana use by older people, particularly those with some degree of coronary artery or cerebrovascular disease, poses greater risks due to the resulting increase in catecholamines, cardiac workload, and carboxyhemoglobin levels, and concurrent episodes of profound postural hypotension. Indeed, marijuana may be a much more common cause of myocardial infarction than is generally recognized. In day-to-day practice, a history of marijuana use is often riot sought by many practitioners, and even when sought, the patient's response is not always truthful. Thus, clinicians should be more vigilant in inquiring about use of marijuana in their patients, particularly among the younger adults who may present with cardiac events in the absence of cardiovascular disease or other obvious risk factors."U A 2012 study published in JAMA and funded by National Institutes of Health looked at a population of over 5,115 American men and women to see whether smoked cannabis has effects on the pulmonary system similar to those from smoking tobacco. The researchers found "Occasional and low cumulative marijuana use was not associated with adverse effects on pulmonary function." Smoking an average of one joint a day for seven years, they found, did not worsen pulmonary health.0 Cannabis smoke contains thousands of organic and inorganic chemical compounds. This tar is chemically similar to that found in tobacco srnoke or cigars! Over fifty knowncarcinogens have been identfied in cannabis smoke! These include nitrosamines, reactive aldehydes, and polycyllc hydrocarbons, including benzia]pyrene. ! Marijuana smoke was listed as a cancer agent in California in 2009.wa A 2006 study involving 1,212 incident cancer cases and 1,040 cancer -free controls found no causative link to oral, laryngeal, pharyngeal, esophageal or lung cancer when adjusting for several confounding factors induding cigarette smoking and alcohol use.0 Regarding the relative safety of cannabis, former US DEA chief administrative law judge Judge Francis Young said: "There is no record in the extensive medical literature describing a proven, documented cannabis -induced fatality. ... Despite [a] long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical reports to suggest that consuming marijuana has caused a single death. In practical terms, marijuana cannot induce a lethal response as a result of drug-related toxicity.... Marijuana's therapeutic ratio is impossible to quantify because it is so high.... Marijuana, in its natural form, is one of the safest therapeutically active substances known to man"7711mreriaMesoum67/ Pain relief The effectiveness of cannabis as an analgesic has been the subject of numerous studies. University of 0 ord doctors found that the brain on THC showed reduced response to pain, suggesting that the drug may help patients endure pain. Brain scans showed reduced activity in two centers of the brain where pain is registered: The mid Anterior cingulate cortex and the right Arnvgdala. However, cannabis did not block the sensation of pain like momhine-based pain killers. The researchers also found a great degree of variation among individual reports of pain rellef.1 According to Stuart Silverman, M.D., a rheumatologist at Cedars -Sinai Medical Center, "Historically and anecdotally, marijuana has been used as a painkiller".111 A Canadian study showed cannabis can reduce "nerve pain" from surgical complications or injuries. The study's twenty-one subjects suffered from chronic pain and patients who smoked cannabis with a 9.4% THC content reported less pain than those patients who smoked the placebo. Improved quality of sleep and reduced anxiety were other reported benefits.'lgor Grant, psychiatrist and director of the Center for Medicinal Cannabis Research at the University of California San Diego, has stated, "There is good evidence now that cannabinoids may be either an adjunct or a first-line treatment". Grant explained further that not everyone experienced pain relief, but the percentage of people who did was comparable to those who said that they experienced relief from other medications commonly prescribed for neuropathic pain (the subject of his study), such as antidepressants Int A small-scale UCSF study found that patients with chronic pain may experience greater relief If cannabinoids were added to an opiate -only treatment regime. The findings further suggested that combination therapy could result in reduced opiate dosages.v The College of Physicians and Surgeons at Columbia University, U.S. published a study in theNeuropsychopharmacology journal in 2013 that is based on research that was conducted with fifteen males and fifteen females who smoked marijuana every day. The study's subjects were exposed to either a placebo, inhaled marijuana, or dronabinol, a p111 that contains cannabis' psychoactive ingredient_ Participants were monitored to ensure that they had not smoked in the time period immediately prior to the tests and did not have other drugs (including alcohol) in their systems. The researchers concluded that "Dronabinol administration decreased pain sensitivity and increased pain tolerance that peaked later and Iaated longer relative to smoked marijuana", thereby providing evidence that the pill form was superior to smoked cannabis in terms of pain relief efficacy. However, the Columbia researchers further stated, "A primary caveat of the current findings is that the study population consisted of daily marijuana smoker;; this study limitation should be considered when interpreting the findings and placing them within the context of the potential therapeutic feasibility of cannabinoids [for the general population].' Antiemetic Several studies have established the antiemetic effects of cannabinoids in the treatment of chemotherapy induced nausea and vomiting (CINV).M1Comparative studies have found cannabinoids to be more effective than some conventional anti emetics such as prochlorperazine, promethazine, and metoclopramide in controlling CINV.affi Their use is generally limited by the high incidence of side effects, such as dizziness, dysphoria, and haliucinations.I "161 Cannabinoids are considered reserve medications in the treatment of nausea and vomiting induced by cvtostatics.0 Glaucoma In glaucoma, cannabis and THC have been shown to reduce intra-ocular pressure (IOP) by an average of 24% in people with normal IOP who have visual -field changes. In studies of healthy adults and glaucoma patients, IOP was reduced by an average of 25% after smoking a cannabis "cigarette" that contained approximately 2% THC --a reduction as good as that observed with most other medications available today, according to a review by the Institute of Medicine' In a separate study, the use of cannabis and glaucoma was tested and found that the duration of smoked or ingested cannabis or other cannabinoids is very short, averaging 3 to 3.5 hours. Their results showed that for cannabis to be a viable therapy, the patient would have to take in cannabis in some form every 3 hours. They said that for Ideal glaucoma treatment it would take two times a day at most for compliance purposes from patients 1 1 Due to these limitations, the American Glaucoma Society, in a statement in 2009, did not recommend marijuana yet as a viable glaucoma treatment, even if it expressed hope that "marijuana or related compounds could protect the optic nerve not only through IOP jintra ocular pressure] lowering but also through a neuroprotective mechanism.' B' Spasticity In multiple sclerosis A review of Bim randomized controlled trials of a combination of THC and CBD extracts for the treatment of multiple sclerosis (MS) related muscle spasticity reported, "Although there was variation in the outcome measures reported in these studies, a trend of reduced spasticity in treated patients was noted." The authors postulated that "Cannabinoids may provide neuroprotective and anti - Inflammatory benefits in MS." A small study done on whether or not cannabis could be used to control tremors of MS patients was conducted. The study found that there was no noticeable difference of the tremors in the patients. Although there was no difference in the tremors, the patients telt as if their symptoms had lessened and their quality of life had improved. The researchers concluded that the mood enhancing or cognitive effects that cannabis has on the brain could have given the patients the effect that their tremors were getting better. sa s4 Alzheimer's disease Research done by the Scripps Research Institute in California shows that the active ingredient in marijuana, THC, prevents the formation of deposits in the brain associated with Alzheimer's disease. THC was found to prevent an enzyme called acetvlcholinesterase from accelerating the formation of "Alzheimer plaques" in the brain more effectively than commercially marketed drugs. THC is also more effective at blocking clumps of protein that can inhibit memory and cognition in Alzheimer's patients, as reported in Molecular Pharmaceutics. 9s Cannabinoids can also potentially prevent or slow the progression of Alzheimer's disease by reducing tau proteinphosphorylation, oxidative stress, and neuroinfiammation.' A 2012 review from the Philosophical Transactions of a Royal Society B suggested that activating the cannabinoid system may trigger an "anti -oxidant cleanse" in the brain by removing damaged cells and improving the efficiency of the mitochondria. The review found cannabinoids may slow decline in age and disease -related cognitive functioning." Breast cancer According to a 2007 and a 2010 study at the California Pacific Medical Center Research institute, canner (CBD) stops breast cancer from spreading throughout the body by downregulating a gene called 101.I99u114i This may provide a non-toxic alternative to chemotherapy while achieving the same results without the painful and unpleasant side. The research tearn says that CBD works by blocking the activity of a gene called ID1, which is believed to be responsible for a process called metastasis, which is the aggressive spread of cancer cells away from the original tumor site.i99N1061 According to findings released by the team in 2012, when the particularly aggressive "mole -negative" cells (which contain high levels of tD1 and account for 15% of breast cancers) were exposed to CBD, they "not only stopped acting 'crazy' but also retumed to a healthy normal state". Human trial models are currently in development," J Dr Sean McAllister, study co -leader, commented;Ul "The preclinical trial data is very strong, and there's no toxicity. There's really a lot of research to move ahead with and to get people excited" HIV/AIDS Investigators at Columbia University published clinical trial data in 2007 showing that HIV/AIDS patients who inhaled cannabis four times daily experienced substantial increases in food Intake with little evidence of discomfort and no impairment of cognitive performance. They concluded that smoked cannabis has a clear medical benefit in HIV-positive patients. In another study in 2008, researchers at the University of California. San Diego School of Medicine found that marijuana significantly reduces HIV-reiatedneuropathic pain when added to a patient's already -prescribed pain management regimen and may be an "effective option for pain relief' in those whose pain Is not controlled with current medications. Mood disturbance, physical disability, and quality of life all improved significantly during study treatmentilm Despite management with opioids and other pain modifying therapies, neuropathic pain continues to reduce the quality of life and daily functioning in HIV-infected individuals. Cannabinoid receptors in the central and peripheral nervous systems have been shown to modulate pain perception. No serious adverse effects were reported, according to the study published by the AmericanAcademy of Neurology!i A study examining the effectiveness of different drugs for HIV associated neuropathic pain found that smoked Cannabis was one of only three drugs that showed evidence of efficacy.UI Brain cancer A study by Complutense University of Madrid found the chemicals in cannabis promote the death of brain cells by essentially helping them feed upon themselves in a process called au#_ pLala . The research team discovered that cannabinoids such as THC had anticancer effects in mice with human brain cancer cells and in people with brain tumors. When mice with the human brain cancer cells received the THC, the tumor shrank. Using plectron microscopes to analyze brain tissue taken both before and after a 26 -to 30 -day THC treatment regimen, the researchers found that THC eliminated cancer cells while leaving healthy cells intactuall The patients did not have any toxic effects from the treatment previous studies of THC for the treatment of cancer have also found the therapy to be well tolerated. Opioid dependence Injections of THC eliminate dependence on opiates in stressed rats, according to a research team at the Laboratory for Physiopathology of Diseases of the Central Nervous System (France) in the journal Neuropsychopharmac0logy.10 Deprived of their mothers at birth, rats become hypersensitive to the rewarding effect of morphine and heroin (substances belonging to the opiate family), and rapidly become dependent. When these rats were administered THC, they no longer developed typical morphine -dependent behavior. In thestriatum, a region of the brain involved in drug dependence, the production of endogenous enkephalins was restored under THC, whereas it diminished in rats stressed from birth which had not received THC. Researchers believe the findings could lead to therapeutic alternatives to existing substitution treatments. In humans, drug treatment subjects who use cannabis intermittently are found to be more likely to adhere to treatment for opioid dependence.algl Historically, similar findings were reported by Edward Birch. who, in 1889, reported success in treating opiate and chloral addiction with cannabis_' ' Controlling ALS symptoms The potential role of cannabis in treating symptoms of ALS (or Lou Gehrig's Disease) has been the subject of recent research. A survey was conducted on 131 people suffering from ALS. The survey asked if the subjects had used cannabis in the last 12 months to control soma of their symptoms. Of the 131 subjects, 13 had used the drug in some form to control symptoms. The survey found that cannabis was moderately effective in reducing symptoms of appetite loss, depression, pain, spasticity, drooling and weakness, and the longest relief reported was for depression. The pattern of symptom relief was consistent with those reported by people with other conditions, including multiple sclerosis (Amtmann et al. 2004). Crohn's Disease A study published on May 6, 2013 in the journal Clinical Gastroenterology and Hepatology revealed that subjects with Crohn's Disease experienced benefits from inhaled cannabis use. At the completion of the study's treatment period, ten out of the eleven patients that received cannabis treatment displayed substantial improvements in disease -related symptoms, while five of these patients experienced complete remission. The study's authors wrote: '... all patients in the study group expressed strong satisfaction with their treatment and improvement in their daily function." The study was small, but was designed as a randomized placebo-controlled clinical trial, the gold standard for a clinical trial.t»2g»31 Diabetes A study published on May 16, 2013 in the Journal of American Medicine revealed that regular marijuana use is associated with better glucose control. They found that current marijuana users had significantly lower fasting insulin and were less likely to be insulin resistant, even after excluding patients with a diagnosis of diabetes mellitus. Participants who reported using mariivana in the past month had lower levels of fasting insulin and HOS and higher levels of high-density lipoprotein cholesterol (HDL -C). These associations were weaker among those who reported using mariivana at least once, but not in the past thirty days, suggesting that the impact of marijuana use on insulin and insulin resistance exists during periods of recent use The Study there were also significant associations between marijuana use and smaller waist circumferences."„W Medicinal compounds Cannabis contains 483 compounds. At least 80 of these are cannabinoids," lwhich are the basis for medical and scientific use of cannabis. This presents the research problem of isolating the effect of specific compounds and taking account of the interaction of these compounds.11171Cannabinoids can serve as appetite stimulants, antiemetics,antispasmodics, and have some analcaesic effects. " Six important cannabinoids found in the cannabis plant are tetrahydrocannabinol, tetrahydrocannabinolic acid cannabidiol, cannabinol, 6-caryophyllene, and cannabigeroi. Tetrahydrocannabinol Main article: Tetrahydrocannabinol CI -13 Chemical structure oftetrahvdrocannabinol (THC) Tetrahydrocannabinol (THC) is the primary compound responsible for the psychoactive effects of cannabis. The compound is a mild analgesic, and cellular research has shown the compound has antioxidant acbvity.am THC is believed to interact with parts of the brain normally controlled by the endogenous cannabinoid neurotransmitter, anandamide.112D1112'l Anandamide is believed to play a role in pain sensation, memory, and sleep. Cannabidiol Main article: Cannabidiol Cannabidiol has been shown to relieveconvulsions, inflammation, anxiety, cough, congestion and nausea, and it inhibitscancer cell growth.' Cannabidiol (CBD) is a major constituent of medical cannabis. CBD represents up to 40% of extracts of medical cannabis.'1Cannabldiol has been shown to relieve convulsion, inflammation, anxiety, cough, congestion and nausea, and it inhibits cancer celigrowth.,,lx, Recent studies have shown cannabidiol to be as effective as atypical antipsychotics in treating schizophrenia1t241 and psychosis.' Because cannabidiol relieves the aforementioned symptoms, cannabis strains with a high amount of CBD may benefit people with multiple sclerosis, frequent anxiety attacks and Tourette syndrome.°211122T1261 Cannabinol Main article: Cannabinol Structure of cannabinol Cannabinol (CBN) is a therapeutic cannabinoid found only in trace amounts in Cannabis sativa and Cannabis indica.tuil It is mostly produced as a metabolite or a breakdown product, of tetrahvdrocannabinol (THC).UI CBN acts as a weak agonist of the CI3s and CB,receptors, with lower affinity in comparison to THC.i129Q'30I 3-Caryophyllene Main article: Carvaphyllene H. C H3 h'H ��CH3 CHa Chemical structure of J3-carvoohvilene Part of the mechanism by which medical cannabis has been shown to reduce tissue inflammation is via the compound B-c.aryophyllene.ilau A cannabinoid receptor called CB2 plays a vital part in reducing inflammation in humans and other animals. B-Caryophyllene has been shown to be a selective activator of the CB2 receptor,' 1i-Caryophyllene is especially concentrated incannabis essential oil, which contains about 12-35% R-caryophyllene.il" Cannabigerol Main article: Cannabiveroi Like cannabidiol, Cannabigerol is not psychoactive. Cannabigerol has been shown to relieve intraocular pressure, which may be of benefit in the treatment of glaucoma.L132111331 0 Cannabigerol Pharmacologic THC and THC derivatives In The U.S., the FDA has approved several cannabinoids for use as medical therapies: dronabinol (Marino!) and nabilone. These medicines are taken orally. These medications are usually used when first line treatments for nausea and vomiting associated with cancer chemotherapy fail to work. In extremely high doses and in rare cases "s chotomimetic" side effects are possible. The other commonly used antiemetic drugs are not associated with these side effects. Marinol's manufacturer stated on their website- 'The most frequently reported side effects in patients with AIDS during clinical studies involved the central nervous system (CNS). These CNS effects (euphoria, diuiness, or thinking abnormalities, for example) were reported by 33% of patients taking MARINOL"134 11112 Four documented fatalities resulting from Marino! have been reported. 1ul Canasol is a cannabis-based medication for glaucoma that relieves intraocular pressure symptoms associated with late-stage glaucoma. It was created by an ophthalmologist, Dr. Albert Lockhart and Dr. Manley E. West, and began distribution in 1987.J13a"39a As of 2003, it was still being distributed in the United Kingdom, several U.S. states, and several Caribbean nations.40 It is notable for being one of the first cannabis-containing pharmaceuticals to be developed for the modern pharmaceutical market and being one of the few such pharmaceuticals to have ever been legally marketed in the United States.i13"1411 The prescription drug Sativex, an extract of cannabis administered as a sublingual spray, has been approved in Canada for the adjunctive treatment (use alongside other medicines) of both multiple sclerosis and cancer related pain142H"3i Sativex has also been approved in the United Kingdom, New Zealand, and the Czech Republic, and is expected to gain approval in other European countries.l144614511146i William Notcutt is ane of the chief researchers that has developed Sativex, and he has been working with GW and founder Geoffrey Guy since the company's inception in 1998. Notcutt states that the use of MS as the disease to study "had everything to do with politics,"' (L) MEMORANDUM FROM SENIOR ASSISTANT CITY ATTORNEY MARK KUNKLER, DATED JANUARY 10, 2014. THIS MEMO INCLUDES A COPY OF A DECEMBER 17, 2013 TRI -CITY HERALD NEWSPAPER ARTICLE CONTAINING AN INTERVIEW ON THIS SUBJECT WITH GOVERNOR JAY INSLEE. CITY OF YAKIMA LEGAL DEPARTMENT 200 South Third Stn et,Yakima, Washington 918901 (509)575-6030 Fax (509)575-6160 TO: MEMORANDUM January 10, 2014 City of Yakima Planning Commission Steve Osguthorpe, AICP, Director, Community Development Department FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Initiative 502 — Revenues At the public hearing on January 8, 2014, several comments were received to the effect that the City of Yakima would be losing revenues if the ban on marijuana production, processing and retailing is adopted. Documents in the record provide answers to these comments. Sections 26 — 30 of Initiative 502 explain the taxing and revenue provisions (pages 39- 44 of Initiative 502 as set forth in the record documents). Section 26 establishes a "Dedicated Marijuana Fund" in the custody of the state treasurer. This Fund will receive all marijuana excise tax revenues, license fees, penalties, forfeitures and "all other moneys, income or revenue received by the state liquor control board from marijuana -related activities." Section 27 imposes a 25% excise tax on the wholesale sale of marijuana by marijuana producers, a 25% excise tax on the wholesale price of marijuana sold by processors to marijuana retailers, and a 25% excise tax on the retail sale of marijuana to consumers. All of these excise tax revenues are to be deposited in the Dedicated Marijuana Fund. The only "local tax" revenue opportunity would be the normal retail sales tax imposed on retail sale of marijuana to consumers. None of the excise tax revenues are paid to the cities and counties. Memorandum to Honorable Mayor and Members of the City Council January 13, 2014 Page 2 Section 28 details the disbursement of the revenues from the Dedicated Marijuana Fund. Every three months, the funds are disbursed by the state liquor control board as follows: (1) $125,000 to DSHS to implement and conduct a "Washington state healthy use survey" to analyze and report on "academic achievement, age at time of substance abuse initiation, antisocial behavior of friends, attitudes toward antisocial behavior, attitudes toward substance abuse," and other areas. (2) $50,000 to DSHS to conduct a cost -benefit analysis. (3) $5,000 to the University of Washington to develop and maintain an web site concerning the "health and safety risks posed by marijuana." (4) An amount not exceeding $1.25 million to the Liquor Control Board to administer the marijuana licensing program. Funds remaining after disbursal of the above will then be distributed to various programs administered by DSHS, the Department of Health, University of Washington and Superintendent of Public Instruction. No provision is made for distribution of any amount to cities or counties. Section 29 directs DSHS and the department of Health to develop rules to carry out the purposes of Initiative 502. Section 30 requires the Washington State Institute for Public Policy to conduct a cost -benefit analysis of the implementation of Initiative 502, including health risks and costs, effect on public safety and the criminal justice system. On December 17, 2013, Governor Inslee gave an interview to the Tri -City Herald, which included the Governor's comments regarding projected revenues from Initiative 502. A copy of the article is attached. Memorandum to Honorable Mayor and Members of the City Council January 13, 2014 Page 3 TRI -CITY HERALD Local News: "Inslee Says Cities Shouldn't Count on Pot Revenue" By Geoff Folsom, Tri - City Herald December 17, 2013 2013-12-18T14:48:08Z Tri -City Herald Cities should not expect to see much tax revenue from recreational marijuana sales, which begin next year in Washington, Gov. Jay Inslee said Tuesday. He isn't even sure if they will make a difference for the state government. "I think we should be very cautious about booking or assuming marijuana revenues," Inslee told the Herald's editorial board in a conference call." As long as people have access to streams of marijuana that are not within the legal system or they are using medical marijuana for purposes that are not really medical, I just cannot give you a high level of confidence that we are going to generate any particular number of revenues from marijuana," he said. The state plans to levy up to 75 percent in excise taxes on marijuana sales and doesn't intend to share it with local governments. Several cities, including Pasco, want some of that money. But Inslee thinks the revenue stream won't be enough to make a difference in dealing with the state's budget shortfalls. "I do not think people should look at it as a panacea at all," said Inslee, a Democrat who is wrapping up his first year in office. "The fact of the matter is there are a lot of purveyors of marijuana today that for years have been outside the stream of legal commerce, and we probably cannot assume they are all going to take part in this tax voluntarily. That's a reality we've got to recognize." Inslee rolled out a supplemental budget for 2014 on Tuesday. He couldn't find anything in it that should keep the Legislature from finishing its work in the allotted 60 days, he said. But Sen. Sharon Brown, R -Kennewick, said Inslee has proposed S262 million in new spending, much of it taken from reserve funds. The Legislature worked hard earlier this year to erase a S2 billion shortfall and create a balanced budget, Brown said. "I don't think it's necessary to open it up again," she said. "This was a collaborative, bipartisan effort. This is not the time to go there. "One program that isn't addressed in the supplemental budget, but that the governor still wants to deal with soon, is a transportation revenue bill. He hopes to get it approved by early next year and it cannot wait until 2015, he said. Brown and other Republicans have called for reforms to the state Department of Transportation before a gas tax increase is considered. If it waits too long, the state runs the risk of local governments in the Seattle area putting their own transportation package together, which could cut the rest of the state out. "Rural areas, I think Eastern Washington areas, I think should have a real interest in not allowing the Balkanization of our transportation system, because the cash -generating engine of King County is no longer going to be available to provide transportation in more rural areas," Inslee said. "Everybody's got an interest; I've been working with both sides to come to the middle on it. "Seventy-one bridges will become structurally obsolete in the state and up to one in five ferry sailings could be eliminated if a transportation package doesn't pass, Inslee said. Possible new projects, such as a Red Mountain interchange off Interstate 82 and completion of the widening of Highway 12 between Pasco and Walla Walla, also would be put off. "All across the state of Washington, including in the Tri -Cities area, we're going to have declining maintenance of our roads and bridges, and that's just unacceptable," he said. "We've got great economic development and agriculture in Southeastern Washington, we've Memorandum to Honorable Mayor and Members of the City Council January 13, 2014 Page 4 got a huge burgeoning wine industry. We've got tremendous opportunity to sell more wine in China and the rest of the world, but if we can't get it to our ports, you've got a problem. "Inslee also expects to have to find other sources of revenue for education, because steady economic growth is not keeping pace with increasing costs, he said. The state added S1 billion to the budget this year as a result of the McCleary decision, in which the state Supreme Court ruled that the state is not fulfilling its constitutional duty to pay for education and is relying too much on local school district levies. Once progress is made on the McCleary funding, Inslee expects the state to be able to assist districts in dealing with a mandate to decrease class sizes, he said. Local districts have expressed concern about not having enough classrooms or teachers to deal with the mandate. "That's something that can only happen if we have people of good faith who will make the hard choices to actually finance that," he said. "We cannot and we will not finance that by creating more homeless, hungry, sick children by diminishing help for the homeless, diminishing nutritional programs or diminishing help for mental health or reducing our protection for our senior citizens. Those are not solutions to our educational challenges, and that's a line in the sand that we simply have to draw. "The state will not be able to employ one-time fixes for the operating budget in 2015, such as using capital money, as it did in resolving the budget, Inslee said. He proposes changing an exemption for forest products that has been abused by the oil and gas industry, he said. That could create S60 million in revenue. The state also will have to find a way to compensate for lost revenue because of a shift to a service and Internet -based economy, though it likely will take Congressional action to allow the state to get tax money from interstate Internet sales, he said. "We do not tax services, we tax the part of our economy that is disappearing, which is goods," he said. The 2014 supplemental budget has S7 million to deal with a prison capacity problem, most of which will go toward building a medium security facility at the Washington State Penitentiary in Walla Walla. Inslee said he didn't know how many construction jobs would be created by the project. "Our penitentiaries are just chock full, and there's really no other option," he said. When asked about leadership, Inslee had a holiday message. "One of the secrets to that leadership is to make sure all of our children believe in Santa Claus, and all adults understand that he doesn't work in Olympia and there is no Santa Claus," he said, before rethinking his remark. "At least in state government -- he works in other realms." w Geoff Folsom: 509-582-1543; gfolsom@tricityherald.com; Twitter: @GeoffFolsom Read more here: http://www.tri-cityherald.com/2013/12/17/2736335/inslee-says-cities-shouldnt- c ount. html# storylink=cpy (M) COPIES OF CORRESPONDENCE RECEIVED BY THE PLANNING COMMISSION AT THE PUBLIC HEARING OF JANUARY 8, 2014. ]barra, Rosalinda From: (barra, Rosalinda Sent: Thursday, January 09, 2014 1:27 PM To: Al Rose; Alfred A. Rose (silvrfx40@bmi.net); Benjamin W. Shovel (ben.shoval@shoval.com); Dave Fonfara; Ensey, Rick; lbarra, Rosalinda; Kunkler, Mark; Paul Stelzer; Scott Clark (scott.clark@charter.net); William Cook (cook.w@charter. net) Subject: FW: Correction to Public Testimony at January 8, 2014 Meeting - Ken Marble Please see the comment below regarding Marijuana issue. Rosalinda Ibarra Administrative Assistant rosalinda.ibarraOyakimawa.gov (509) 575-6183 Original Message From: Ken Marble [mailto:kmarble@hdweb.com] Sent: Thursday, January 09, 2014 11:23 AM To: Osguthorpe, Steve Subject: Correction to Public Testimony at January 8, 2014 Meeting - Ken Marble Mr Osguthorpe Could you please forward this email on to the members of the Planning Commission. Thank you. Ken Marble Dear Chairman Fonfara and Members of the City of Yakima Planning Commission: In my testimony before you yesterday, I made a "unit of measure" error when I referred to the price of marijuana in the newly opened pot shops in Colorado. I had the price right ($400), but I mistakenly told you that was per gram, when in fact that is per ounce. Now that Colorado is "leading the way", we can move from theory to fact in examining the impact of opening of pot shops on the marketplace. My point was that it is naive or disingenuous to say that opening pot shops in a community will eliminate the illegal sale of marijuana. The argument is not founded on real world economics. The links below will support my point - the price in the shops is often double the street price (as documented by "priceofweed.com) and that is before the 25% Colorado state tax is added on. People are shoppers and will seek out what they desire at the lowest price - especially when there is such a wide variance in price. This is the link to one of the articles referencing the price of pot in the pot shops in Colorado: http://www.bloomberg_.com/news/2014-01-06Jpot-prices-double-as-Colorado-begins-recreational- sales.html Here is a link to the street price of marijuana in Colorado - there is also a link on that website to the street prices in Washington, which are even lower than Colorado: httpWwww.priceofweed.com/prices/United-States/Colorado.html /www.priceofweed.com/prices/United-States/Colorado.html And here is an article from the Huffington Post that supports my position that I 502 isn't going to eliminate the black market for selling marijuana as the advocates claim: 1 t•.www.huffiin.ton .ost.com'201401 6weed-colorado-black-market n 4548338 Thank you for allowing me to correct my misstatement. My primary point was not to debate the price of pot. It was to advocate that we have a chance, through our zoning laws, to reflect the values of the majority of our citizens and to protect the vulnerable youth and young families of Yakima. Sincerely, Ken Marble 2 lbarra, Rosalinda From: lbarra, Rosalinda Sent: Tuesday, January 07, 2014 3:40 PM To: Al Rose; Alfred A. Rose (silvrfx40@bmi.net); Benjamin W. Shoval (ben.shoval@shoval.com); Dave Fonfara; Ensey, Rick; lbarra, Rosalinda; Kunkler, Mark; Paul Stelzer; Scott Clark (scott.clark@charter.net); William Cook (cook.w@charter. net) Cc: Kunkler, Mark Subject: FW: Council Contact Web Submission See comments below re: Marijuana public hearing. Thank you! Rosati a,i: fluar�Ma "11inahaii trai,liv As,,, Ant eraser liilqua.lhand a �� e llktrav:e, From: Price, Cally On Behalf Of City Council Sent: Tuesday, January 07, 2014 3:19 PM To: Osguthorpe, Steve; Ibarra, Rosalinda Subject: FW: Council Contact Web Submission Please include with the public hearing comments. Cally Price Assistant to the City Manager City Manager, Mayor, and Council Office From: web@yakimawa.gov [mailto:web@yakimawa.gov] Sent: Tuesday, January 07, 2014 2:58 PM To: City Council Subject: Council Contact Web Submission Name kimberly bookout Address 1207 swan ave yakima, Washington 98902 United States Map 1t Email kvmbosiiize3213C@gmail.com Subject tonight's marijuana discussion Message My 6 year old child is a medical marijuana patient, before she began the use of the medication she could not walk run talk or even eat food she used a medical walker an only survived by boost drink.I. the last 7 months she has been able to walk run attended a full day of special needs pre school eat regular food an can now tell me without signing that she loves me. She has had brain surgery an heart surgery she is expected to have more to come her condition is rare an she is not expected to have a In n lifer enan If is wan; rliffir.dt fnr ma to ha ahla to nal herr tha rarer an mat -Ural ciInnliac naarlar( fnr herr Itc harrl fnr its fri alcn 1 travel all the way to Seattle for medicine be for u guys put a stop to the selling of cannabis you should look at the benefits that come along to our patients an to the community. I understand that it is maybe a scary process to stal rt but not only is it bennificale to the community but think about the non criminals who really need these medications an can not afford to keep driving out of town to purchases them when u come into this meeting come with an open mind an clear thoughts we the Peoria who pay taxes an work hard voted for this right an it would be a shame to show us that our votes don't count ! Good luck on your tough decision making but make sure its an educated decision an a decision based upon our community in a whole!!!! 2 Ibarra, Rosalinda From: Ibarra, Rosalinda Sent: Tuesday, December 31, 2013 3:30 PM To: Al Rose; Alfred A. Rose (silvrfx40@bmi.net); Benjamin W. Shovel (ben.shoval@shoval.com); Dave Fonfara; Ensey, Rick; Ibarra, Rosalinda; Kunkler, Mark; Paul Stelzer; Scott Clark (scott.clark@charter.net); William Cook (cook.w@charter. net) Kunkler, Mark FW: Council Contact Web Submission Cc: Subject: Please see comment below received in the City Council e-mail inbox regarding the Marijuana issue (1-502). Thank you! Ad.ittiiurwi tiirm° ti°r: Assist tirt rosatLnda.Iharrii ,nal�ilua ov From: Price, CaIly Sent: Monday, December 30, 2013 12:09 PM To: Kunkler, Mark; Osguthorpe, Steve Subject: FW: Council Contact Web Submission For the record... Cally Price Assistant to the City Manager City Manager, Mayor, and Council Office From: web@yakimawa.gov [mailto:web@yakimawa.gov] Sent: Thursday, December 12, 2013 7:56 AM To: City Council Subject: Council Contact Web Submission Name Doug Worsham Address 11908 Marble Rd Yakima, Washington 98908 United States Map It Email worsham5540aol.com Subject I- 502 Message Good Moming I think the city councils decision to ban marijuana production and sales within the city limits is defeating the purpose of the law that was passed by the majority of the state voters. Marijuana is already here and available on the so called black market and chiefly funded by the drug gangs. They do not care who it is sold to or who it may harm and the money made seems to be used to hi fhb harri rinine fnr eala to *ha niihlir• Tho niurnnca of I -5f) wac +n takes a wirialu ncari Aril, that }lac not haan nrnuan to ha 1 harmful to use and to reduce our prison population for simple use and possesion. The Liquor Control Board has implemented strict rules and regulations in the production, processing, and retailing of Legal marijuana and it will be taxed instead of going back to the drug gangs. Sure there will be minors standing outside the pot stores trying to find someone to puchase them some marijuana just like we stood outside the liquor stores when we were kids which means the law wo! uld be working because they would not be able to buy pot at school anymore which is readily available right now. I think the city council should read I- 502 Doug Worsham 2 Ibarra, Rosalinda From: Claar Tee, Sonya Sent: Tuesday, October 29, 2013 3:15 PM To: 'Resources CannaMLS' Cc: Regimbal, Tammy; Ibarra, Rosalinda Subject: RE: I-502/collective gardens/dispensaries/ City of Yakima Mr. Shirley, I have forwarded your request to our Public Records Officer, Tammy Regimbal, as a public record request. However, please note most of the items you are requesting are available on our website in council packets or searchable in our document center (link below). I have also copied Rosalinda in our Planning Division on this email in order for you to be added as a party of record for any public hearings on the subject. A public hearing regarding a "moratorium on recreational marijuana" has already been scheduled for November 5, 2013 at 7 p.m. in our Council Chambers at City Hall (http:// .akimawa.gov/council/assets/Moratorium- on-Recreational-Marijuana.pdf) http://www.yakir awa.gov/council/archived-agenda-minutes/ Thank you. Sonya Claar Tee City Clerk Original Message From: resources.cannamis@gmail.com[mailto:resources.cannamis@gmail.com] On Behalf Of Resources CannaMLS Sent: Tuesday, October 29, 2013 3:06 PM To: Claar Tee, Sonya; Cutter, Jeff; Osguthorpe, Steve Subject: I-502/collective gardens/dispensaries/ City of Yakima Good afternoon, My name is Todd A Shirley and I am the managing broker of Tierra Real Estate Group we are a Washington State real estate brokerage based in Seattle. My brokerage has been contracted to do jurisdictional research for a group of large institutional investors. As such, I would like to request any and all ordinances, proposed drafts, maps or proposed zoning maps for 1- 502 implementation including producer, processor & retailer status in your jurisdiction. I also request all information for what is currently in place for collective gardens/dispensaries. Finally, I would like to have my email put on your listsery as a stakeholder in your jurisdiction with regards to any and all ordinances, maps, proposals, council meetings etc. related to 1-502 and or dispensaries & collective gardens. If this email is going to the wrong person in your jurisdiction, could you please forward it to the right person or direct me to whom I need to contact? Thank you so much for your help and attention to this matter. Todd A Shirley 1 CannaMLS.com A division of Tierra Real Estate Group Todd A Shirley- Managing Broker 12055 15th Ave NE Seattle WA 98125 Ph- 206.261.8206 Fax- 206.641.9670 Email- resources(cannamis.com 2 1,111,11111 ..i..11111111,111,111,111,111,111,111,111,111,111,111,111,111,111,111,111,111,111,111.111 COMMuN'J:T:YDevELo,9pME.NT DEPARTIVIENT .12 North S'eco.eld 5tree4 2n Floor; Ikith Washington Pan„„ (5O o) 575-6.113 ! x (5a 9) 576-6576 57 www.,„, r& ;LV"7Pw '. a 0 m.0 CITY OF YAKIMA NOTICE OF PUBLIC HEARING Public Hearing before the City of Yakima Planning Commission Regarding Production, Processing and Retailing of Marijuana NOTICE IS HEREBY GIVEN that the Planning Commission of the City of Yakima will conduct an open record public hearing to receive comments regarding the production, processing and retailing of marijuana within the City of Yakima. The Planning Commission will consider a proposed amendment to Title 15 of the Yakima Municipal Code banning the production, processing and retail sale of marijuana within the City of Yakima. Said public hearing will be held on Wednesday, January 8, 2014 at 3:30 p.m. in the Council Chambers at City Hall located at 129 North 2nd Street, Yakima, Washington. All interested parties are invited to attend this hearing. Written comments may be submitted to the Planning Commission in two ways: (a) Send a letter via regular mail to "Planning Commission, City of Yakima Planning Division, 129 North 2nd Street, Yakima, Washington 98901”; or (b) Email your comments to: ask.planninq@yakimawa.gov Include in the email subject line, "Marijuana." Please reference file number TXT#006-13 also include your name and mailing address. Dated this 23`d day of December, 2013. CO de 4hmlnismrai ion 105;0' Rosalinda lbarra Community Development Administrative Assistant I' ' useyficrµ " � �m�ui 'ad'ro� Ms �rc� ' wN Deftetop. & mix es William & Margaret Hicks 205 S. 75th Place Yakima, WA 98908 January 14, 2014 Yakima City Council 129 N. 2nd St. Yakima, WA 98901 Dear Yakima City Council, Distributed at the Meeting j.„�-I1' CRE OF AKIMP — — JAN 1 5 2014 OFFICE OF CITY COUNCIL We would appreciate your support in making the City of Yakima a safer community in which to raise the next generation by supporting the ban on marijuana. We believe it is detrimental to the health and wellbeing of the citizens of Yakima, Washington State and the United States as a whole. • Where are these individuals going to work? As an employer, we have a no drug tolerance policy. Will a person then say their rights are being violated because we will not hire someone who smokes marijuana and smoking pot is legal? • Do you want your doctor, nurse, bus driver, or natural gas repairman to be under the lingering effects of last night's marijuana smoking? • What about the children in homes where parents are smoking marijuana? They are now being exposed to a smoke filled room with adults who are impaired in their ability to be responsible adults. Children are at risk. Whatever happened to the war on drugs? • If our state thinks that somehow all this wonderful tax revenue is going to come flooding in to solve the budget woes, I hope and pray they think again. The detriment to our society, families, and future health problems will far outweigh any increase in revenue. We don't need it, don't want it! • The west side of our state has again pushed harmful legislation onto our citizens. We believe Eastern Washington can be leaders in our state, utilize common sense, and do what is right for the people of our valley to oppose the further expansion of drugs. Let's work together to put the future of our children first and give them a safer Yakima. We encourage you to stand with the anti drug campaign and "just say no" to the proponents of marijuana. Thank you for your support. SincS4- e� ely�g William "& Margaret Hicks