MEDICAL MARIJUANA:
PRECURSOR FOR
LEGALIZATION?
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JOYCE A. ROPER, SR. AAG
AGRICULTURE & HEALTH DIVISION
WASHINGTON ATTORNEY GENERAL’S OFFICE
10/10/2014
WASHINGTON’S EXPERIENCE
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 Ralph Seeley v. State, 132 Wn.2d 776 (1997)
 Initiative 692 approved November 3, 1998
 Affirmative Defense for Possession
“Terminal or debilitating medical condition”
 “Valid documentation” (not prescription)
 “Sixty day supply”
 No mention of how to obtain medical marijuana

Ralph Seeley, 49
10/10/2014
“TERMINAL OR DEBILITATING” CONDITIONS
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 Initiative 692:
Cancer, HIV, Multiple Sclerosis, Epilepsy or other seizure
disorders, spasticity disorders
 Intractable pain, unrelieved by standard medical
treatments and medications
 Glaucoma (acute or chronic), i.e. intraocular pressure
unrelieved by standard treatments and medications, or
 Any other medical conditions approved by the Medical
Quality Assurance Commission (MQAC)

10/10/2014
ADDITIONAL CONDITIONS
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 Conditions added by MQAC, then RCW 69.51A.010 in 2010
Crohn’s Disease with debilitating symptoms, unrelieved by
standard treatments or medications
 Hepatitis C with debilitating nausea or intractable pain
unrelieved by standard treatments or medications
 Diseases, including anorexia, resulting in nausea, vomiting,
wasting (cachexia), appetite loss, cramping seizures, muscle
spasms, or spasticity, when these symptoms are unrelieved by
standard treatments or medications
 Added by MQAC & Osteopathic Board after 2010 legislation
 Chronic Renal Failure (Dialysis) – must disclose may impact
transplant status

10/10/2014
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CONDITIONS DENIED
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 Insomnia and Post Traumatic Stress Disorder (June 2000)
 Bipolar or Chronic Depression (November 2000)
 Depression and Severe Anxiety (November 2004)
 Bipolar Disorder, Severe Depression and Anxiety-Related
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Disorders (Social Phobia) (February 2010)
Alzheimer’s (August 2010)
Neuropathic Pain (without the need of establishing that it
cannot be relieved by standard medical treatments and
medications) (August 2010)
ADD & Obsessive Compulsive Disorder (March 2012)
Tourette’s Syndrome (July 2012)
10/10/2014
“SIXTY DAY SUPPLY”
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 Term replaced in 2011 legislation
 15 cannabis plants and
24 ounces of useable cannabis, or
 Cannabis product (edibles, ointments, etc.) than “could
reasonably be produced” with no more than 24 oz. of
useable cannabis, or
 Combination of useable cannabis and cannabis product
not exceeding “possession and processing” of no more
than 24 oz. of useable cannabis
 A person who is a qualifying patient and a designated
provider for another qualifying patient may possess no
more than twice the above amounts

10/10/2014
MEDICAL PROFESSIONAL
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 I-692: Washington licensed physician (M.D./D.O.)
 2010 legislation: health care professional (HCP) =
Washington licensed physician, physician assistant,
naturopath, advanced registered nurse practitioner
 Significance of change
 Disciplinary cases
10/10/2014
PATIENT-PHYSICIAN RELATIONSHIP
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 Assumed, not specified prior to 2011
 2011 legislation specified:
 Newly initiated or existing documented relationship
 As a primary care provider or a specialist
 Relating to the diagnosis and ongoing treatment or monitoring
of the terminal or debilitating condition, and only after
 Completing a physical examination as appropriate
 Documenting the terminal or debilitating condition in the
patient’s medical record and that the patient may benefit from
cannabis
 Informing the patient of other options for treatment
 Documenting other treatment measures attempted
10/10/2014
NEW LIMITATIONS ON HCP
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 2011 legislation authorized license disciplinary
action if HCP
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Examines or offers to examine a patient for the purpose of
diagnosing a terminal or debilitating condition at a location
where cannabis is produced, processed or dispensed
Has a business or practice consisting solely of authorizing the
medical use of cannabis
Has a kick-back or steering arrangement with a licensed
dispenser, producer or processor (licensing requirements
vetoed)
10/10/2014
COLLECTIVE GARDENS
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 Defined as “qualifying patients sharing responsibility for
acquiring and supplying the resources required to produce
and process cannabis for medical use”
 Up to 10 patients participate in “a single collective garden
at any time”
 15 plants per patient or less up to a total of 45 plants
 24 oz. useable cannabis per patient up to a total of 72 oz.
 Copy of each patient’s valid documentation available on
the premises at all times
4/22/2013
QUALIFYING PATIENTS’ PROTECTION
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 Parental rights or residential time with children shall not be
restricted solely due to medical use of cannabis, unless there
are written findings supported by evidence that use has
resulted in a long-term impairment that interferes with the
performance of parenting functions under RCW 26.09.004
 May not be a sole disqualifying factor in determining
suitability for an organ transplant, unless it is shown that
use poses a significant risk of rejection or organ failure
Timothy Garon, 56
10/10/2014
LIMITATIONS ON PATIENT PROTECTIONS
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 Civil infraction to display in a manner or place open
to the view of the general public
 No right to care as a covered benefit/health
insurance
 No requirement to accommodate on-site medical use
in any place of employment/drug-free workplace
policies, school bus or grounds, youth center,
correctional facility, or smoking in public place or
hotel or motel
 DUI laws apply
10/10/2014
OVERSIGHT AND AUTHORITY
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 No state agency oversees
 Locally enforced
 2011 Legislation proposed DOH and WSDA licensing
and oversight – sections vetoed
 2011 Legislation changed “affirmative defense” to
legalizing possession for patients who registered with
DOH – registry section vetoed
 LCB oversight proposed in SSB 5887, 2013 session –
failed at the close of session
10/10/2014
CURRENT STATE OF THE LAW
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Phone calls and letters:
 Inconsistent local enforcement
 Charlatans and chicanery
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Unenforceable “contractual” arrangements/prepay plans
Inability to rely on consumer protection act, file a police
complaint
Unreported crimes (assaults, rapes, burglaries)/vulnerable
victims
 Fear, confusion, misinformation
 Anger and mistrust
 Pleas for clarity, understanding and protection
10/10/2014
MEDICAL CANNABIS IN U.S.
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 18 states and the District of Columbia
 Laws vary from state to state on amounts, degrees of
regulation, authorized medical conditions, patient
registries, comity
 Compilation of state laws:
https://www.networkforphl.org/_asset/sbth8b/Stat
e-Medical-Marijuana-Law-Table.pdf (current as of
6/23/2014)
10/10/2014
WHAT’S NEXT?
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10/10/2014
Legalized Recreational
Marijuana in Washington
WestPac Annual Meeting, AALL
October 10, 2014
Bruce L. Turcott
Assistant Attorney General
Washington Attorney General’s Office
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Legalized Possession
• Limited possession 21 & over
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1 oz “useable” marijuana +
1 lb marijuana-infused product in solid form +
72 oz marijuana-infused product in liquid form +
7 g marijuana concentrate
• Consuming in view of general public prohibited
• DUI per se limit: 5 ng active THC / mL blood
• Effective Dec. 6, 2012
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Commercial Licensing
• Liquor Control Board licenses and regulates
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•
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Producers
Processors
Retail stores (sell only marijuana, paraphernalia)
• Licenses limited to 3-month state residents
•
•
•
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Applies to all “members” of business entities
FBI criminal background checks for members and financiers
License application fee $250
Annual license fee $1,000
• Taxes
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25% excise tax on sales at each level
Earmarked for public health research and education
State budget has not assumed any revenue
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Federal Response
Department of Justice Memorandum to United
States Attorneys (Aug. 2013)
• Applies to all states.
• 8 priorities “will continue to guide the Department’s enforcement of
the CSA against marijuana-related conduct.”
• “If state enforcement efforts are not sufficiently robust to protect
against the harms, 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.”
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Federal Priorities
1. Preventing the distribution
of marijuana to minors
2. Preventing revenue from going to drug gangs
3. Preventing diversion of marijuana to other states
4. Preventing cover operations
for trafficking other drugs
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Federal Priorities
5. Preventing violence
and use of firearms
6. Preventing drugged driving and adverse health
effects
7. Preventing growing
on public lands
8. Preventing marijuana possession or use on federal
property
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Minors
• 1000’ buffer from schools
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No marijuana business locations
No advertising by licensees “in any form or through any
medium whatsoever” within 1000’
• No products, labeling, or advertising “especially
appealing to children”
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Preapproval for all edible products, labeling, and packaging
Child-resistant packaging
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Security
• Product tracking
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Clone-to-sale traceability
Every transaction entered in traceability system
• Facility security
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Alarm and video surveillance systems
8’ sight-obscuring fence for outdoor grows
• No firearms
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Enforcement
• Compliance with rules = safe harbor
• WSLCB limited authority enforcement officers
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Enforce WSLCB licensing rules
Refer unlicensed activity to local law enforcement
• No revenue earmarked for law enforcement
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Supply and Demand
• 30-day application window
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Over 7,000 applications received
• Producer/processor licenses
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Number of licenses not limited
One license per applicant; square footage limited
First producer/processor licenses issued March 5
236 producers as of Sept 30 (over 2,000 pending)
• Retail licenses
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Stores allocated to cities/counties = 334 statewide
Lottery held to rank applicants for processing
First retail store licenses issued July 7
62 approved as of Sept 30
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Local Jurisdictions
• Several cities/counties banned marijuana
businesses or imposed moratoriums
• Local authority
• I-502 does not preempt local jurisdictions from banning
marijuana businesses, per formal AG Opinion
• WSLCB will issue licenses without regard to local bans - I-502
does not authorize denials based on local law
• 3 lawsuits filed by licensees against cities/counties with bans
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Public Health
• Quality assurance testing
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WSLCB accredited 3rd party testing labs
• THC extraction
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Professionally certified closed loop systems
• Food safety
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WSDA/FDA/USDA food rules inapplicable – adulterated
WSLCB rules for hazardous foods - may not be infused
• Edibles
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Limited to 10 mg THC per serving & 10 servings per product
Scoring and labeling to indicate servings
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Banking Challenges
• Deposits to banking system = money laundering
• Cash business = crime target
• USDOJ/FinCEN banking guidance (Feb. 2014)
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Authorizes filing special SARs
Requires bank due diligence - customer complying WSLCB rules
Banks waiting for guidance from federal regulators
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Medical Marijuana
• Unregulated
• Only sales tax (but illegal to sell)
• Possess 24X as much w/authorization
• No age limit
• Challenge for legislature
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Resources
• Initiative 502
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Codified at: Chapter 69.50 Revised Code of Washington
• Washington State Liquor Control Board
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Rules: Chapter 314-55 Washington Administrative Code
Website (FAQs, Listserv): liq.wa.gov/marijuana
Licenses: liq.wa.gov/records/frequently-requested-lists
• Washington Attorney General’s Office
•
Bruce Turcott, AAG: brucet1@atg.wa.gov, (360) 586-2738
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WASHINGTON’S POT LAWS
GO TO COURT:
LITIGATING LEGALIZATION
IN THE EVERGREEN STATE
JEFFREY EVEN, DEPUT Y SOLICITOR GENERAL
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LITIGATION SO FAR
Cases relating to Washington’s marijuana laws at present
include:
• Challenge to local ban of medical marijuana collective
gardens (Cannabis Action Coalition v. City of Kent)
• Challengers to local bans of recreational marijuana
businesses (MMH, LLC v. City of Kent, and others)
• Challenge to ban on advertising medical marijuana by
physicians (Havsy v. State)
• Challenge to tax collections (Nickerson v. Insee)
• Challenge to . . . Whatever (West v. Holder)
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LOCAL MEDICAL MARIJUANA BAN
The City of Kent banned medical marijuana dispensaries
and collective gardens at the local level
• Sued by medical marijuana activitists
• Issues relate to complex legislation that contained
section vetoes by the governor, complicating analysis of
act
• Court of Appeals upheld local authority to ban, holding
that the city retains its traditional authority to regulate
• Washington Supreme Court considered earlier this week
whether to grant review
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LOCAL RECREATIONAL MARIJUANA BANS
A number of Washington cities and counties have enacted
ordinances banning, or imposing moratoriums against,
marijuana-related businesses
So far lawsuits filed against:
 City of Fife
 City of Wenatchee
 Pierce County
 City of Kennewick
All of which has us embarking upon . . .
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. . . A MAGICAL MYSTERY TOUR
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TWO DIFFERENT KINDS OF CASES
STAT E A N D FE D E R A L
ISSUES
STAT E I S S U E S O N LY
Plaintiffs are license
applicants who
challenge local bans
Plaintiffs are license
applicants who
challenge local bans
City responds that ban is
not preempted
City responds that ban
is not preempted
City then says, even if it
is preempted, federal
law preempts
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ONE RULING TO DATE
In the only ruling so far, the trial court agreed
completely with the Attorney General (MMH, LLC v. City
of Fife)
Ruled that state law does not preempt local law
With this conclusion, did not need to reach federal
issues
 (But the judge said he thinks there’s no federal
preemption)
Other cases are pending summary judgment motions
this fall
MMH has been appealed, with direct review sought in
the Washington Supreme Court
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BAN ON PHYSICIAN ADVERTISING
Illustrates lack of relation between medical and
recreational laws
Medical marijuana law prohibits advertising by doctors
Doctor included information on web site
Ordered to remove it
Challenges ban
Recreational marijuana laws restrict advertising, but
do not ban it
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TAX COLLECTION
Marijuana related businesses are required to collect
and remit certain state state taxes
Medical subject to sales tax (but they’re not supposed to
sell it)
Recreational subject to 25% marijuana excise tax at all
three levels + sales tax
Plaintiff in Nickerson v. Inslee argued state couldn’t
make him pay taxes because marijuana is illegal
under federal law
 Case quickly dismissed from federal court on
jurisdictional grounds
 But states can and do tax illegal activities
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AND, WELL, WHATEVER
Frequent pro se litigant sued the Governor, Chair of the Liquor Control
Board, Eric Holder, and other federal officials in federal court in
Washington, D.C.
State parties dismissed for lack of personal jurisdiction
Underlying theory involved National Environmental Protection Act and “AntiCommandeering Doctrine”
And, so yeah.
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