Medical Marijuana v. Recreational Marijuana: An Update From The Front

In a move that is simultaneously noteworthy and completely expected, Seattle city attorney Pete Holmes has issued a policy memorandum that speaks to the city of Seattle’s treatment of medical marijuana businesses moving forward. In no uncertain terms, Holmes says that all commercial medical marijuana operations not licensed pursuant to Initiative 502 and the state’s recreational cannabis laws are “felony operation[s].” What sparked this memo and will it change anything in the coming months

First, let’s take a quick look at Washington’s medical marijuana system. All of Washington’s marijuana laws, both medical and recreational, sit on top of the baseline that medical is still a controlled substance and is illegal unless some area of the law makes it legal. Initially decriminalized for medical users in 1998 by ballot initiative, the first measure to legalize medical marijuana businesses in Washington was Engrossed Substitute Senate Bill 5073, which passed the state legislature in April 2011. Rather than signing the bill, however, Governor Gregoire vetoed it, fearing that state employees could be charged for working directly with marijuana businesses. Medical marijuana law became a jumble, as a part of the law on the books referred to a patient registry that didn’t exist due to the veto.

It was in this climate that people started opening up medical marijuana businesses in Washington, using creative interpretations of what one could do with a “collective garden”. The disjointed law created a grey area that people jumped into. Fast forward to March 31, 2014. A Washington Court of Appeals held that since Washington never actually created its patient registry, all collective gardens were illegal, and patient participants were limited to affirmative defenses at trial as opposed to full legality for their participation in those gardens.

After that Court of Appeals ruling, we completely stopped taking on new medical marijuana work. Before the ruling, we had an argument that the corporate collective garden model was legal, but the precedent from the Kent case essentially took that argument away. For more on the impact of that ruling on Washington’s medical marijuana industry, check out MMJ Now Illegal In Washington State. Yes, Washington State.

Now we turn back to Seattle and to recent conversations. There is some inherent conflict between recreational marijuana stores and medical marijuana stores that are operating contrary to state law, but with at least the temporary blessing of the city, as most of the medical marijuana businesses in Seattle have done.  The taxes on recreational are extremely high, and the regulatory and compliance burden on recreational marijuana businesses is also quite substantial. There has been a big push at the state level to regulate medical marijuana with either a new system that is merged with I-502 or one that is parallel with I-502.

Mayor Ed Murray was understandably frustrated with the state’s failure to take care of the two track system in its last session and wanted to do something about medical businesses in Seattle, but Holmes is probably correct on this. Any positive legislation by the city may well cause a conflict to arise with the state, seeing as though the state has declared these businesses illegal for the time being. It’s not that Pete Holmes is announcing that as of today, medical marijuana businesses are illegal. He is simply clarifying that they were always illegal, but the city is less likely to tolerate them competing with licensed/regulated marijuana businesses now up and running.

Nothing is changing this very instant, but Holmes’s memorandum is simply more news that medical marijuana will need a miracle save from the legislature if it is going to survive in Washington’s largest city or anywhere else in the state.

For more on the inherent tension between recreational and medical marijuana regimes, I urge you to read this post entitled, Medical vs. Recreational Marijuana in 2015 and listen to Hilary Bricken, who will be on public radio later today discussing this very issue.