No. U.S.C.A. No. 12-30208 U.S.D.C. EDWA No. 12-CR-00016-WFN ______________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JERAD JOHN KYNASTON, SAMUEL MICHAEL DOYLE, BRICE CHRISTIAN DAVIS, JAYDE DILLON EVANS, TYLER SCOTT MCKINLEY, Defendants-Appellees. _____________________________________________ Appeal from the United States District Court for the Eastern District of Washington _____________________________________________ BRIEF FOR APPELLANT _______________________ Michael C. Ormsby United States Attorney Russell E. Smoot Assistant United States Attorney 340 United States Courthouse Post Office Box 1494 Spokane, WA 99210 Telephone: (509) 353-2767 Case: 12-30208 10/15/2012 ID: 8361621 DktEntry: 9-1 Page: 1 of 57 (1 of 131)
A. PROBABLE CAUSE TO ISSUE A SEARCH WARRANTFOR EVIDENCE OF VIOLATION OF A GENERALOFFENSE IS NOT DEPENDANT UPON THE AFFIANT’SDISPROVING AN EXCEPTION TO THE GENERALOFFENSE OR ALL OF THE ELEMENTS OF THEOFFENSE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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2. The District Court Erred When it Found that OfficersHad to Specify that the Narrow “Medical” MarijuanaException to the General Prohibition of ManufacturingMarijuana Did Not Apply in Order to Have ProbableCause To Search for Evidence of the Manufacturing ofMarijuana in Violation of Wash. Rev. Code §69.50.401.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. BECAUSE QUALIFIED PATIENTS AND DESIGNATEDPROVIDERS CANNOT COMPLY WITH THECONJUNCTIVELY DRAFTED CONDITIONS OF WASH.REV. CODE § 69.51A.040, THE WASHINGTONLEGISLATURE’S ATTEMPT TO DECRIMINALIZE THEUSE OF “MEDICAL” MARIJUANA IS INEFFECTIVE,LEAVING ONLY THE AFFIRMATIVE DEFENSE.. . . . . . . . . . 31
2. Because the Provision Establishing a State Registry for“qualifying Patients” and “Designated Providers” wasVetoed, and Thus Not Enacted with the July 2011Amendments, Wash. Rev. Code § 69.51A.040 Remainsat Most an “Affirmative Defense.”.. . . . . . . . . . . . . . . . . . . . 31
C. EVEN IF THIS COURT DETERMINES THAT THESEARCH WARRANT DID NEED TO DISPROVE THATTHE NARROW “MEDICAL” MARIJUANA EXCEPTIONOR THAT THE SEARCH WARRANT DID NOT PROVIDEPROBABLE CAUSE OF A STATE OFFENSE BASED ONTHE NEWLY AMENDED, AND INTERPRETED“MEDICAL” MARIJUANA PROVISION, THE OFFICERSWERE ACTING ON “GOOD FAITH” IN EXECUTING THEFACIALLY VALID WARRANT.. . . . . . . . . . . . . . . . . . . . . . . . . . 42
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I. STATEMENT OF JURISDICTION
A. JURISDICTION OF THE DISTRICT COURT
Jurisdiction existed in the district court by virtue of 18 U.S.C. § 3231.
B. JURISDICTION OF THE UNITED STATES COURT OF APPEALS
Jurisdiction exists in the Court of Appeals by virtue of 18 U.S.C. § 3731
and 28 U.S.C. § 1291.
C. TIMELINESS OF APPEAL
This appeal is timely pursuant to Federal Rules of Appellate Procedure,
Rule 4(b). The U.S. District Court for the Eastern District of Washington entered
an Order suppressing evidence on May 31, 2012. CD 186; ER 156-59. The1
Notice of Appeal and Certification for Interlocutory Appeal was filed by the
United States on June 15, 2012, CD 219-221; ER 185-189; that being within 30
days after entry of the Order. The Solicitor General approved the pursuit of this
appeal on October 5, 2012.
“CD” denotes Criminal Docket for U.S.D.C. EDWA No. 12-CR-00016-WFN1
(set forth at ER 155-160); “ER” denotes the United State’s Excerpts of Record. Wash. Rev. Code §§ 69.50.401, 69.51A.040, 69.51A.047 and the WashingtonLegislative history discussed infra are set forth in an Appendix.
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II. ISSUES PRESENTED Whether the District Court erred in granting the Defendants’ Motion to Suppressevidence obtained pursuant to Washington state search warrant that provided asufficient statement of probable cause that there marijuana was beingmanufactured in violation of Wash. Rev. Code § 69.50.401, but did not provideany factual statement concerning whether officers believed that the marijuanawas being manufactured in a manner consistent with the narrow “medical”marijuana use exception, set forth at Wash. Rev. Code § 69.51A.040.
III. STATEMENT OF THE CASE
A. NATURE OF THE CASE
On November 2, 2011, officers from the Spokane Police Department
Investigative Task Force (SPD-ITF) executed a search warrant a residence
located at 11911 N. Judkins Rd., Spokane, Washington. The Affidavit in
Support of the Search Warrant alleged facts in support of probable cause that
evidence relevant to a violation of WASH. REV. CODE § 69.50.401, specifically
the manufacturing of marijuana, would be located within the residence and
outbuildings. ER33-44. The search warrant was signed by a Washington District
Court Judge. ER 49.
During the execution of the search warrant, SPD-ITF officers located more
than 500 growing marijuana plants. ER 56. The SPD-ITF officers contacted the
Drug Enforcement Administration (DEA). Based on the quantity of marijuana
plants, the Defendants were ultimately indicted by the Grand Jury for the Eastern
District of Washington for conspiracy to manufacture 100 or more marijuana
plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846 (Count One);
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and manufacture of 100 or more marijuana plants, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(vii) (Count Two). CD 1; ER 1-2.
During the pendency of the federal matter, Defendant McKINLEY filed a
motion to suppress the evidence seized during the execution of the search
warrant on the assertion that the affidavit did not provide probable cause of a
violation of a Washington state offense. CD 157-159; ER 6-57. In short, the
Defendant claimed that a provision of Washington’s “medical” marijuana statute
decriminalized the manufacture of marijuana – despite the continued validity of
WASH. REV. CODE § 69.50.401 – if the marijuana was being manufactured for
“medical” purposes. ER 13-15. Essentially, the Defendant argued that in order
for a search warrant for evidence of manufacture of marijuana, in violation of
WASH. REV. CODE § 69.50.401, to be valid, the affidavit must provide evidence
that the marijuana was not being manufactured in a manner consistent with the
express statutory conditions allowing the use of medical marijuana, as set forth at
WASH. REV. CODE § 69.51A.040. ER 15-17.
After briefing and argument, ER 88-125, the district court determined that
a July 2011 amendment to Washington’s “medical” marijuana statute
“decriminalized” the manufacturing of marijuana to such a degree that
Washington Courts could not issue search warrant for evidence of violations of
WASH. REV. CODE § 69.50.401, without providing evidence of non-compliance
with WASH. REV. CODE § 69.51A.040. ER 127-28. In short, the district court
found that the affidavit in support of the search warrant did not allege a criminal
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offense because the affiant did not provide facts indicating that an “exception” to
the general prohibition of manufacturing marijuana did not exist. ER 127-28.
Furthermore, despite the lack of any Washington case law interpreting the recent
July 2011 amendment to WASH. REV. CODE § 69.51A.040, the district court
found that the SPD-ITF officers were not acting in good faith when executing the
search warrant that had been reviewed and issued by a Washington District Court
judge. ER 128.
The United States appealed. CD 219-221; ER 185-189.
B. COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT
BELOW
On February 7, 2012, Defendants Jerad John Kynaston, Samuel Michael
Doyle, Brice Christian Davis, Jayde Dillion Evans, Corey E. Mobley, Peter M.
Magana, and Tyler Scott McKinley were indicted by the Grand Jury for the
Eastern District of Washington on one count of conspiracy to manufacture 100 or
more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846.
CD 1; ER 1-2.
On May 7, 2012, Defendant Tyler Scott McKinley filed a Motion to
Suppress evidence seized pursuant to a Washington state-court issued search
warrant. CD 157-159; ER 6-57. The United States responded in objection, CD
173 ; ER 58-77. The district court heard oral argument on May 31, 2012. CD
184; ER 88-125.
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On May 31, 2012, the district court issued an Order granting the
Defendants’ Motion to Suppress. CD 186; ER 126-129.
On June 6, 2012, the United States filed a Motion for Reconsideration.
CD 202, 203; ER 130-142. The district court granted the motion for
reconsideration, but affirmed its decision to suppress evidence. CD 210; ER
148-49.
On June 15, 2012, the United States filed a Notice of Interlocutory Appeal,
CD 218-220; ER 150-153; and a Motion to Stay the district court proceedings,
which the district court granted.
C. CUSTODY STATUS
All of the Defendants are presently released on conditions pending trial.
IV. STATEMENT OF FACTS
A. WASHINGTON STATE SEARCH WARRANT
On November 2, 2011, Spokane Police Department Detective Lloyd
Hixson applied for, and obtained, a search warrant from a Washington District
Court (Spokane County) Judge, to search the premises located at 11911 N.
Judkins Rd., Spokane, Washington, for evidence related to the manufacturing of
marijuana, in violation of Wash. Rev. Code § 69.50.401. The Affidavit in
Support of the Search Warrant stated, in relevant part:
(4) Circumstances supporting probable cause:
On the evening of 10/19/11, Detective Hixson received a
phone call from Sergeant Khris Thompson. Sergeant Thompson
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advised Detective Hixson that Deputy Sam Palmer received a report
of a party involving underage drinking at 12010 N. Judkins Lane,
Spokane County, Washington. Deputy Palmer responded to this
location, but did not observe a party in progress. Deputy Palmer
advised Sergeant Thompson that he detected the odor of growing or
freshly harvested marijuana coming from this location and left the
area.
On 10/20/11 Detective Hixson contacted Inland Power and
Light and determined that 12010 N. Judkins was their customer.
Detective Hixson requested power records for this address and
learned that the account was in the name of [REDACTED] that
power consumption was consistent for normal, residential usage.
Detective Hixson checked [REDACTED]'s name in local police
records and saw that she did not have a criminal record.
On 10/28/11 at approximately 1230 hours, Spokane County
Sheriff's Office Detectives Hixson, Dave Knechtel, and Dean Meyer
responded to the area of 12000 N. Judkins. In order to further
investigate Deputy Palmer's observations. The detectives noted that
this was a particularly remote location that saw little traffic. 11911
and 12010 N. Judkins were the last two residences on the road. The
detectives did not encounter any gates or "No Trespassing" signs as
they drove up the driveway to 11911 N. Judkins. This two-story
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home, which was brown in color with tan trim, had an attached
three-car garage to the right of the front door. There were two
vehicles parked in the driveway of the residence. A blue Dodge
pick-up, Washington license B905568, and a grey Ford pick-up,
Washington license 891405P.
Detectives Hixson and Knechtel went to the front door of the
residence with the intention of asking the occupants if they were
growing or knew of anyone in the area growing marijuana. Out of
concern for safety of the detectives, based upon the type of
investigation being conducted as well as the remote, wooded
location, Detective Meyer went to the rear comer of the attached
garage to stand by in the event that someone, with the intention of
harming the detectives, were to exit the residence.
Detective Hixson knocked on the front door and rang the
doorbell several times, but no one responded. As Detective Hixson
and Knechtel were standing at the front door, they could both see
into the house through the front window, located to the left of the
front door. A large screen TV was playing loudly at the back of the
residence. Both detectives saw that the floor of the room just inside
the window was covered with plastic. Both detectives observed
stems, leaves and white plastic piping on top of this plastic. Both
detectives were able to identify the leaves lying on top of the plastic,
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from their training and experience, as marijuana leaves. Both
detectives know that it is common to dry freshly harvested
marijuana in this fashion. Detective Hixson and Knechtel also
observed additional white, plastic piping and a large humidifier;
approximately three feet in height lying on the lawn near the front
door. Both detectives have seen similar humidifiers and plastic
piping used in indoor marijuana grows In the past. Detective
Knechtel observed a wooden frame, approximately two feet, by one
foot, by three feet in front of the attached garage. Detective Knechtel
advised that he knows that frames of that nature are commonly used
in Indoor hydroponic marijuana grows. Detective Meyer returned
from the rear of the residence and advised that he had detected a
strong odor of marijuana coming from the residence, possibly a
second story window that was left open. Detective Meyer also
advised that there was a greenhouse located behind the residence.
Detective Meyer described the greenhouse as being a wooden frame
wrapped in plastic.
Detectives Hixson, Knechtel, and Meyer decided to leave the
residence and apply for a search warrant. As Detectives Knechtel
and Meyer were leaving, they observed another greenhouse
(secondary greenhouse) approximately 140 feet to the east/northeast
of the residence at 11911 N. Judkins. This building was also a
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wooden frame covered with plastic. The detectives observed white
plastic piping, like the piping observed In front of the residence,
coming from the area of the residence and leading toward this
secondary greenhouse. Detective Hixson was able to observe the
primary greenhouse, situated directly behind the residence, that
Detective Meyer had described. On 10/31/11, Detective Hixson also
observed this secondary greenhouse as described above.
On 10/28/11 Detective Hixson returned to the Public Safety
Building and checked the above two license plates through
Washington Department of Licensing. Washington license plate
B91405P returned to Jerad Kynaston with an address of 13704 N.
Relin Drive, Spokane Valley, Washington. Detective Hixson
checked Kynaston's name in local police records as well as NCIC III
and saw that he had a conviction for Possession of a Controlled
Substance with Intent to Deliver from Spokane County Superior
Court on 07/14/2009.
Detective Hixson obtained a copy of the report that lead to
·this conviction, report #09- 45238 by Spokane County Sheriff's
Office Deputy Jeff Shover. Detective Hixson teamed that Deputy
Shover had served a search warrant on Kynaston's residence, 1723
N. Union, and obtained approximately five pounds of marijuana
from a safe that Kynaston was in control of, as well as. a receipt for
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Discount Garden and Supply and assembly instructions for a large
fight hood, that Detective Hixson knows is commonly used in marijuana grows.
Detective Hixson checked the second license plate mentioned
above. Washington license plate B90556B. This license plate
returned to Greg and Jani Davis with an address of 13030 E. Apache
Pass Road, Spokane, WA. Detective Hixson was unable to locate a
criminal history for either subject.
On 10/28/11 Detective Hixson contacted Inland Power and
Light and learned that electrical consumption at 11911 N. Judkins
was extremely high and clearly in excess· of what would be
considered normal electricity consumption for a single family
residence. Detective Hixson learned that the account for this
address with Inland Power and Light was put in the name of Tyler
McKinley in February 2011. Detective Hixson obtained power
consumption records from Inland Power and Light on similar
residences In the area of 11911 N. Judkins for comparison. See table
for low for further Information:
11911 N. Judkins 10430 N. Judkins 10811 N. JudkinsForce Hot Air-Propane/AC Forced Hot Air/AC Force Hot
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July 20118000 kw 260 kw 1070 kw
June 201150,900 kw 0 kw 1570 kw
May 20113000 kw 2130 kw 1410 kw
April 20112401 kw 2240 kw 1570 kw
March 20112185 kw 2360 kw 2130 kw
February 20111324 2890 2770 kw
Detective Hixson obtained photographs of 11911 N. Judkins
from the Spokane County Assessor's web page. Detective Hixson
confirmed that 11911 N. Judkins was the residence he had been to
earlier in the day with Detectives Knechtel and Meyer. That this
residence was brown in color with tan trim and a three car attached
garage. Detective Hixson saw that 11911 N. Judkins encompasses
an area of 11.42 acres. Detective Hixson observed a property line
map on the Assessor's web Site for this address and learned that the
majority of this property is to the east of Judkins Road, where the
secondary greenhouse is located.
Deputy Palmer advised Detective Hixson that on 10/19/11,
while responding to a report of an underage drinking party, he had
detected the odor of growing or freshly harvested marijuana coming
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from a greenhouse in the area of 12000 N. Judkins Road. Deputy
Palmer provided Detective Hixson with a Google Earth picture of
this area and indicated the greenhouse he was referencing was the
secondary greenhouse, situated to the north/northeast of the
residence at 11911 N. Judkins. Deputy Palmer described the odor"
of marijuana corning from this greenhouse as "strong” and advised
that he was on Judkins Road, approximately 90 feet to the south of
the greenhouse, when he detected the odor.
On 10/31/11 at approximately 0930 hours, Detectives
Knechtel and Hixson returned to the area of 11911 N. Judkins. As
they were approaching the residence, at approximately 11 000 N.
Judkins, they observed the above listed Dodge pick-up, Washington
license B90556B, driven by a white male in his 20's, leaving the
area. Detectives Knechtel and Hixson continued to the area of 11911
N. Judkins and parked on the roadway, approximately 75 feet to the
east of 11911 N. Judkins. Detective Knechtel detected a light odor
of marijuana coming from the area of the residence and/or the
primary greenhouse immediately behind the residence.
Based upon the above facts and circumstances, Detective
Hixson believes that evidence for the crime of
Manufacturing/Delivery/Possession of a Controlled Substance -
Marijuana would be ·located inside the residence at 11911 N.
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Judkins and/or the outbuildings on this property, should a search
warrant for this property be granted.
ER 36-39.
During the execution of the warrant, Defendants Jerad J. Kynaston, Corey
E. Mobley, Peter M. Magana, Brice C. Davis, and Jayde D. Evans were located
inside the residence and arrested. ER 28-31. It was determined that there were at
least approximately 500-700 marijuana plants located in the residence. ER 56.
As the investigation continued, additional persons were determined to have
participated in the marijuana growing operation. ER 28-31. Ultimately, the U.S.
Drug Enforcement Administration became involved and Defendants Jerad John
Kynaston, Samuel Michael Doyle, Brice Christian Davis, Jayde Dillon Evans,
Corey E. Mobley, Peter M. Magana, and Tyler Scott McKinley were indicted by
the Grand Jury for the Eastern District of Washington on one count of conspiracy
to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(vii), 846 (Count One); and manufacture of 100 or more
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) (Count
Two). CD 1; ER 1-2. Defendants Corey E. Mobley and Peter M. Magana
entered pleas of guilty to Count One and are presently released pending
sentencing.
B. DEFENDANTS’ MOTION TO SUPPRESS:
On May 7, 2012, Defendant McKinley filed a motion to suppress evidence
from the search of 11911 N. Judkins Rd., Spokane, Washington, on the assertion
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that a recent amendment to Washington state’s “medical” marijuana provisions
decriminalized the manufacturing of marijuana and, as such, according to the
Defendants, the affidavit in support of the Washington state-court issued search
warrant failed to state probable cause that a criminal offense was being
committed. CD 157, 158, 159; ER 6-57.
On May 14, 2012, the United States explained in its Response, that July
2011 amendments to WASH. REV. CODE § 69.51A.040 did not decriminalize the
manufacturing of marijuana, which remained a criminal offense pursuant to
Wash. Rev. Code § 69.50.401. CD 173; ER 67-75. As such, the Washington
state-court issued search warrant was valid because it alleged that there was
probable cause that evidence of the manufacturing of marijuana, in violation of
Wash. Rev. Code § 69.50.401, would be found on the premises located at 11911
N. Judkins Rd., Spokane, Washington. ER 74-75. The United States further
explained that despite the Washington legislature’s modification to the language
of Wash. Rev. Code § 69.51A.040, Washington’s “medical” marijuana
provisions continued to function as an affirmative defense. ER 67-75. The only
difference in the affirmative defense created by the amendment was to extend the
affirmative defense to the pre-trial stage, effectively providing either statutory
immunity to arrest or law enforcement discretion to not make arrests or seize
marijuana when the amount of marijuana appears to be in compliance with the
express statutory conditions of Washington’s compassionate use statute. ER 69.;
see also WASH. REV. CODE § 69.51A.040.
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On May 31, 2012, the district court presided over a pretrial hearing. CD
184 ; ER 88-124. As the hearing commenced, the district court immediately
wanted to address the Defendants’ motion to suppress. ER 90. However, the
Defendants appeared to be more interested in continuing the hearing. ER 92-99.
Ultimately, counsel for Defendants Doyle and Kynaston, who where in custody
at the time, understood the district court’s intent and decided to argue Defendant
McKinley’s motion. 2
The district court first turned to the United States, which explained:
Respectfully, while the law may be in a constant state ofchange and flux concerning marijuana within the state, that doesn’t– that does not mean that whether or not a medical marijuanaaffirmative defense of certain conditions precedent to thecommission of the general crime of manufacturing or distributingmarijuana or possession of marijuana simply * * * negates lawenforcement’s ability to investigate a potential offense.
* * *
And I would submit that despite the change in the wording from anaffirmative defense to may not be arrested , contraband may not beseized --, it does not repeal the general law prohibiting themanufacture and distribution and/or possession of marijuana withinthe state statutes. And having that law still in effect, RCW69.50.401 still having effect, law enforcement is still charged withthe investigation of that particular valid law. It hasn’t been repealedby the legislature. They certainly would have repealed that whileamending the language to the compassionate use statute. They didnot. Nor did Fry – nor is there any indication that Fry has beenreversed or withdrawn by statute.
The bottom line is that in a case like this, law enforcementwas investigating what it believed to be a potential offense, thatbeing RCW 69.50.401, that being the manufacturing of marijuana, a
See ER 95 (The district court previously ordered that all individual motions2
apply to all Defendants.).
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crime in Washington state, a crime in federal law. In their searchwarrant, they put, in brief – I guess the Court has the search warrant– everything that would typically be seen in a search warrant of aninvestigation establishing probable cause for a marijuana grow. There was the odor of marijuana, there was excessive power usage,there was a visual observation of marijuana stems through thewindow, and there was vehicles – a vehicle that was parked at theproperty that was tied back to a person that had a prior convictionfor a marijuana offense. All of those things stand alone on the fourcorners of the affidavit to support search [sic] for a violation of69.50.401.
ER 101.
After the district court appeared to agree that absent consideration of the
July 2011 amendment to Wash. Rev. Code § 69.51A.040, the affidavit in support
of the search warrant for 11911 N. Judkins Rd., Spokane, Washington, clearly
established probable cause to search for evidence of the manufacturing of
marijuana, ER 101, the United States responded: “Well, Your Honor, I think that
– here’s – here’s the question, then. What does a state law enforcement officer
have to put in a affidavit in order to investigate a potential offense?” ER 101-02.
The district court stated:
Well, in this case, I think it is clear that that officer said thatthere were more that 45 plants visible through the front door. [ ]3
That would indicate that the grow was not in compliance with themedical marijuana act. But the affidavit was totally silent on thatamount. I think it’s clear. I disagree with you. The language of69.51A.040 says that – in effect, that medical use of marijuana doesnot constitute a crime. So there has to be some indication, it seemsto me, in search warrant that what was involved here was marijuana
There is no place in the Record supporting the district court’s statement that3
the officer observed more than 45 plants through the front door. See ER 36-39. Assuch, the Court’s statement may be a typographical error in the transcript.
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in a quantity at least that was noncompliant with state law; andthere’s no reference to it.
The United States continued:
Yes. Your Honor, I think that begs the question, then: Howdoes law enforcement obtain that type of information? In fact, iflaw enforcement has all the indications of a violation of the generalmarijuana statute but no ability to determine whether or not anindividual is in compliance with very strict conditions precedent [ ]4
to whether or not they violated the statute, then that investigationcan never be accomplished through a search warrant. In otherwords, Your Honor, search warrants are simply whether that itprobable – that there’s a probability that evidence of a crime may befound at the location searched.
ER 102. The United States continued to explain that Washington’s “medical”
marijuana provisions not only extend the affirmative defense to the pre-trial
stage, but provide law enforcement the discretion to discontinue the search, not
arrest anyone, and not seize controlled substances. ER 103-04. The United5
States explained:
Just because a search warrant is issued for a location doesn’tnecessarily follow that law enforcement is always going to findevidence of a crime. In this case, the law enforcement officers
Although not explicitly addressed by either party or the district court, one of4
the “strict conditions precedent” to compliance with Wash. Rev. Code § 69.51A.040is for medical marijuana users and providers to be registered with a Washington stateregistry. See Wash. Rev. Code § 69.51A.040(3). Due to the Washington Governor’sveto of the registry provision, compliance with all of the conjunctively drafted “strictconditions” is not possible. Arguably, as Washington’s medical marijuana provisionsare presently drafted, no one can be in compliance with Wash. Rev. Code §69.51A.040.
Arguably, the discretion to not seize marijuana suggests that law enforcement5
officers may find themselves in circumstances in which their investigation ofmarijuana manufacturing is determined to be within the express, requisite conditionsof the narrow “medical” marijuana exception.
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believed that it was likely that evidence of the general marijuanacrimes would be found at the location. Had they entered and theywould have found one person in there with a marijuana card and a13-plant grow, they would have had a decision to make. Have theyviolated the main general marijuana law that we are – we believe wehave probable cause to investigate, or have they not? Whether it issimply no longer a crime or whether it’s an affirmative defense, theresult is the same. There has to be conditions precedent, then theycan say: All right; well, we were – we were mistaken. Our searchwas not fruitful. But we still had probable cause to initiate theinvestigation to do the search warrant.
ER 103.
As the district court’s colloquy with the United States continued, the
United States discussed the Washington case of State v. Fry. 6
* * * Fry is not – there’s no indiction that Fry’s generalprinciple that law enforcement doesn’t have to prove a negative todo a search warrant or doesn’t have to – they would – typically, theywould have to prove all the conditions precedent – meaning everysingle person, every single plant was accounted for, every singlecondition that is required of the compassionate use section, .040,which is still written in there – if the person complies, is incompliance with it, they would have to disprove that first withoutany – necessarily any way to get that information in order to pursuewhat they believe may be a violation of another offense.
ER105-06.
The district court continued to take the position that prior to July 2011,
Wash. Rev. Code § 69.51A.040 provided an affirmative defense, but “after July
22 , the law changed.” ER 106. The district court asserted that nd
[p]ossession or growing marijuana in an amount that is consistentwith the medical marijuana law is not a crime. So you don’t have anaffirmative defense. You just can’t be charged. And that’s whatconcerns me in this case. The affidavit doesn’t give any indication
State v. Fry, 168 Wn.2d 1, 228 P.3d 1 (2010). 6
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that there’s a state crime that’s been violated. It’s true there’s plentyof indication that marijuana is growing, but there’s no indicationthat it’s growing in a amount that takes it out of the medicalmarijuana exceptions.
ER 106. The district court inquired:7
The United States explained that in addition to plant count, other conditions7
or qualifications applied, including authorization to use marijuana. ER 106-07. Infact, all of the following conjunctively drafted conditions must be present in order forthe “medical” marijuana provisions providing protection against arrest, prosecution,and other criminal sanctions, to be in effect:
(1)(a) The qualifying patient or designated provider possesses no morethan fifteen cannabis plants and:
(I) No more than twenty-four ounces of useable cannabis;
(ii) No more cannabis product than what could reasonably be producedwith no more than twenty-four ounces of useable cannabis; or
(iii) A combination of useable cannabis and cannabis product that doesnot exceed a combined total representing possession and processing ofno more than twenty-four ounces of useable cannabis.
(b) If a person is both a qualifying patient and a designated provider foranother qualifying patient, the person may possess no more than twicethe amounts described in (a) of this subsection, whether the plants,useable cannabis, and cannabis product are possessed individually or incombination between the qualifying patient and his or her designatedprovider;
(2) The qualifying patient or designated provider presents his or herproof of registration with the department of health, to any peace officerwho questions the patient or provider regarding his or her medical useof cannabis;
(3) The qualifying patient or designated provider keeps a copy of his orher proof of registration with the registry established in *section 901 ofthis act and the qualifying patient or designated provider's contactinformation posted prominently next to any cannabis plants, cannabisproducts, or useable cannabis located at his or her residence;
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Doesn’t the affidavit have to – does not the affidavit need to containan allegation that – that state law is being violated for some reason;in other words, that the officer had reason to believe that there’s aexcessive amount to indicate that that – not only is marijuana there,but there is marijuana there that takes it out of the medical statute?
ER 109. In response to the district court’s inquiry, the United States “respectfully
argue[d] no. And the reason for that is because if the search warrant provides
probable cause for a violation of the statute, then that is sufficient. And the –
and our – and the United States’ position is that the search warrant provided
probable cause for violation of the general statute.” ER 109. After the district
court again appeared to concede that the search warrant did provide probable
cause to search for evidence of the manufacturing of marijuana in violation of
WASH. REV. CODE § 69.50.401, the district court again inquired: “So if the
(4) The investigating peace officer does not possess evidence that:
(a) The designated provider has converted cannabis produced orobtained for the qualifying patient for his or her own personal use orbenefit; or
(b) The qualifying patient has converted cannabis produced or obtainedfor his or her own medical use to the qualifying patient's personal,nonmedical use or benefit;
(5) The investigating peace officer does not possess evidence that thedesignated provider has served as a designated provider to more thanone qualifying patient within a fifteen-day period; and
(6) The investigating peace officer has not observed evidence of any ofthe circumstances identified in *section 901(4) of this act.
See Wash. Rev. Code §69.51A.040 (emphasis added).
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affidavit says that law enforcement is aware of the fact that there’s marijuana in
the house, period, it is a valid statute – I mean – warrant?” ER 109-10.
The United States again explained:
I believe it’s valid to investigate a crime that fits with – if itprovides probable cause for a crime that is on the books.
* * *
It mat not support a – the investigation may not support aconviction. It may not support an arrest. It may not support aseizure. But for investigative purposes alone, is the warrantsupplies probable cause for a law that is on the books, then lawenforcement has – has a legal authority to execute that search – thatwarrant.
ER 110.
Defense counsel then argued against the amended statute continuing to
provide an affirmative defense, ER 111-13, and criticized the law enforcement
officers as having “no clue” as to what needed to be provided in an affidavit
supporting a search warrant for the manufacturing of marijuana. ER 114.
As the hearing concluded, the United States addressed the district court in
reply to defense counsel’s arguments. ER 117-121. After preserving the “good
faith” argument, the United States again submitted “that there is probable cause
for the violation of the Uniform Controlled Substance Act; specifically WASH.
REV. CODE § 69.50. – I think 401 is what I cited. ER 118. After a brief
divergence into discussion of a hypothetical proposed by the district court, ER
118-120, the United States concluded that
the situation is, however, Your Honor, that law enforcement wasconducting an investigation, was conducting a violation – an
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investigation of a law on the books. And ultimately, had theyentered the premises with the with the valid – with the valid – and Isay “valid”in terms of being signed by a state court judge. Had theyentered, found out that, in fact, what was occurring was not aviolation of the law, then there would have been – arguably, theinvestigation would have stopped; or at least it would not haveresulted – gone to the prosecutorial stage, which laws also cover.
Simply put, at this point of the investigation of issuing asearch warrant – of obtaining a search warrant, the law enforcementofficers were investigating the general provision that arguably isstill valid in the state of Washington and as federal law for what –for what its worth in terms of federal law.
ER 121.
The district court indicated that its “inclination is that the search warrant
was not complete; and my inclination is that the execution, therefore, was
improper, which would then logically suggest that the motion to suppress should
be granted.” ER 121.
Later that day, the district court issued an Order granting the Defendants’
Motion to Suppress, stating that WASH. REV. CODE § 69.51A.040
provides an exception to the general controlled substances statutewhich makes possession, use, and manufacturing a crime. Wash.Rev. Code § 69.69.401 (2012). [sic]. Thus, to obtain warrant,officers must show probable cause that the criteria of the medicalmarijuana exception have not been met. State officers cannot obtaina valid state warrant where there is not probable cause of a statecrime. United States v. $186,416.00 in U.S. Currency, 590 F.3d942, 948 (9 Cir. 2010) (finding that because the evidenceth
supporting the grow did not show probable cause of a crime inCalifornia, even though it was illegal federally and was prosecutedfederally, the search warrant had to be quashed).
Contrary to the Government’s assertion, a state crime has notbeen committed simply by possessing or manufacturing marijuanain Washington. If the person complies with the medical marijuanastatute, they have not committed a state crime. The Government’sbriefing suggests that despite the clear language decriminalizingmedical marijuana, law enforcement officers may still arrest those
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possessing or manufacturing medical marijuana due to the phrase“may not be arrested, prosecuted, or subject to other criminalsanctions” rather than shall not (emphasis added). This torturedreading of the statute contradicts the plain language of the statutemaking it internally inconsistent. Alternatively, the Governmentproposes treating the medical marijuana exception as a type ofaffirmative defense despite the drastic rewriting of the law. TheCourt finds that the statute is clear on its face and that the medicalmarijuana exception and the general controlled substances act mustbe read together in a manner that gives effect to both.
It is uncontested that while the affidavit supporting thewarrant included evidence of a marijuana grow, there was nomention of the medical marijuana statute or an assertion that thegrow violated the medical marijuana statute. The omission is fatalto the warrant as the warrant does not show probable cause of acrime. The good faith exception cannot rescue the warrant as thethree month old [sic] law was clear and the officers should havebeen aware of its requirements. Thus, all the fruits of the searchshall be suppressed. The parties agree that this includes allevidence obtained during the search as well as any statements thatwere derived as a fruit of the poisonous tree.
ER 127-28.
On June 6, 2012, the United States filed a Motion to Reconsider the
district court’s Order suppressing evidence obtained during the execution of the
search warrant. CD 202, 203; ER 133-42. In response the United States’ Motion
to Reconsider, CD 209; ER 143-146, the Defendants asserted that the legislative
intent behind Wash. Rev. Code § 69.51A.040. ER 144, 146.
On June 11, 2012, the district court granted the motion to reconsider, but
affirmed its initial granting of the Defendants’ Motion to Suppress. CD 210; ER
148-49. The United States has filed this Interlocutory Appeal. CD 219-221; ER
185-189.
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V. SUMMARY OF ARGUMENT
The district court erred in concluding that an affidavit in support of a
Washington state search warrant that sufficiently sets forth a statement of
probable cause that there is a fair probability that evidence of the manufacturing
of marijuana, in violation of Wash. Rev. Code §69.50.401 (Washington’s
Uniform Controlled Substances Act), must also disprove facts that may support a
possible narrow “medical” use exception, set forth at Wash. Rev. Code
§ 69.51A.040, in order to investigate a suspected violation of Wash. Rev. Code
§ 69.50.401.
Although the Washington Legislature may have intended to
“decriminalize” the use of “medical marijuana for qualified patients and
designated providers who are in compliance with the conjunctively drafted
requisites set forth at Wash. Rev. Code § 69.51A.040, the Washington
Governor’s veto of the registry provisions rendered compliance with Wash. Rev.
Code § 69.51A.040 impossible. As such, the “decriminalization” language is
ineffectual and only the affirmative defense, which is available to qualified
patients and designated providers who are not in compliance with Wash. Rev.
Code § 69.51A.040, remains.
In all events, the district court erred in finding that law enforcement
officers did not execute a Washington District Court -issued search warrant in
“good faith” where the recent July 2011 amendment to Wash. Rev. Code §
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69.51A.040 had not been judicially interpreted to change the existing affirmative
defense articulated in State v. Fry, 168 Wn.2d 1, 228 P.3d 1 (2010).
VI. ARGUMENT
THE DISTRICT COURT ERRED IN GRANTING THE DEFENDANTS’MOTION TO SUPPRESS MARIJUANA PLANTS AND OTHER EVIDENCESEIZED DURING THE EXECUTION OF A WASHINGTON STATE SEARCHWARRANT.
A. PROBABLE CAUSE TO ISSUE A SEARCH WARRANT FOREVIDENCE OF VIOLATION OF A GENERAL OFFENSE IS NOTDEPENDANT UPON THE AFFIANT’S DISPROVING ANEXCEPTION TO THE GENERAL OFFENSE OR ALL OF THEELEMENTS OF THE OFFENSE.
1. Standard of Review
The determination of probable cause is a mixed question of law and fact
reviewed de novo. See, e.g., United States v. Rodgers, 656 F.3d 1023, 1026 (9th
Cir. 2011); United States v. Stinson, 647 F.3d 1196, 1209 (9 Cir. 2011); Unitedth
States v. Forrester, 512 F.3d 500, 506 (9 Cir. 2008) ("Conclusions of lawth
underlying the denial of a motion to suppress evidence are also reviewed de
novo.").
2. The District Court Erred When it Found that Officers Had toSpecify that the Narrow “Medical” Marijuana Exception to theGeneral Prohibition of Manufacturing Marijuana Did Not Apply inOrder to Have Probable Cause To Search for Evidence of theManufacturing of Marijuana in Violation of Wash. Rev. Code §69.50.401.
The Supreme Court has determined that “[p]robable cause does not require
the same type of specific evidence of each element of the offense as would be
needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972).
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“Probable cause for a search requires a fair probability that contraband or
evidence of a crime will be found in a particular place, based on the totality of
the circumstances.” United States v. Grant, 682 F.3d 827, 832 (9 Cir. 2012)th
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quotation marks
omitted). “Probable cause means only a fair probability, not certainty, and
requires consideration of the totality of the circumstances.” United States v.
Under Washington law, manufacturing marijuana is a crime. See Wash.
Rev. Code § 69.50.401. While the medical marijuana law may provide a narrow
exception to this general rule, "probable cause" is defined as a "fair probability
that contraband or evidence of a crime will be found in a particular place."
Gates, 462 U.S. at 238. Even if a narrow exception to the general law is on the
books, the police in this case still had more than enough information to establish
a "fair probability" that the general prohibition on manufacturing marijuana was
being violated in the residence. ER 106; 33-39. The officer’s affidavit included
that investigators could see marijuana leaves on top of plastic sheeting through a
front window; smell a strong odor of marijuana emanating from the residence
and greenhouse; and see indicia of an indoor marijuana growing operation. ER
37. Furthermore, the officer’s checked the license plates of the vehicles sitting
in the driveway of the residence and determined that one vehicle was registered
to Jared Kynaston. Officers discovered that Kynaston had a 2009 conviction for
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possession with of a controlled substance with intent to deliver from Spokane
County Superior Court. ER 37. The underlying facts of the 2009 conviction
also included possession of five pounds of marijuana and supplies for indoor
marijuana growing operation. Cf. United States v. Rowland, 464 F.3d 899, 908
(9 Cir. 2006) (defendant's prior drug conviction included in "totality of theth
circumstances" to determine whether a stop was warranted); accord United
States v. Dyer, 580 F.3d 386, 392 (6 Cir. 2009) (Although a defendant'sth
criminal history is not dispositive, … it is relevant to the probable cause
inquiry."); United States v. Artez, 389 F.3d 1106, 1114 (10 Cir. 2004)th
("[C]riminal history, combined with other factors, can support a finding of
reasonable suspicion or probable cause.").
Although no Washington court has yet interpreted the amended version of
Wash. Rev. Code § 69.51A.040, as it relates to the determination of probable
cause, the California Supreme Court confronted a related question in People v.
Mower, 49 P.3d 1067 (Cal. 2002). California has a similar medical marijuana
law which provides that the state code sections criminalizing marijuana
possession and cultivation "shall not apply to a patient, or to a patient's primary
caregiver, who possesses or cultivates marijuana for the personal medical
purposes of the patient." Cal. Health & Safety Code 11362.5. This provision
makes possession and cultivation within its scope "noncriminal." Mower, 49
P.3d at 1075. In Mower, however, the court noted that under this statutory
scheme, "[p]robable cause depends on all of the surrounding facts . . . including
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those that reveal a person's status as a qualified patient or primary caregiver." Id.
at 1073. That is to say, knowledge of medical marijuana status may factor into
the usual probable cause analysis, but it does supplant it. In an unpublished case,
this Court has relied on Mower in upholding a warrant when the officer did not
possess any information to suggest that a defendant had a medical marijuana
card. See United States v. Carpenter, 461 Fed. Appx. 539, 540 (9 Cir.th
2011)(unpub.).
Furthermore, the district court’s position that officers had to specify that a
narrow exception to the general prohibition did not apply in order to have
probable cause has been rejected in analogous situations. See United States v.
Taylor, 716 F.2d 701, 705-06 (9 Cir.1983). In Taylor, the Drug Enforcementth
Administration (“DEA”) arrested the defendant for operating an amphetamine
laboratory in his home after the DEA received a tip from a chemical supply
company that the chemical purchases were suspicious. 716 F.2d at 704. The
DEA affidavit included the opinion of an expert chemist that “the chemicals
were ‘probably’ being used to manufacture illegal drugs.” Id. at 706. This Court
dismissed the defendant’s contention that there was no probable cause, holding
that “affidavit need not . . . preclude other innocent interpretations for the
activities at his house.” Id. at 705-706.
In United States v. McShane, federal agents obtained a warrant based on
information that McShane, a previously convicted felon, had several handguns
and a sawed-off shotgun in his apartment. 462 F.2d 5, 5-6 (9 Cir. 1972). Upon ath
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search of the apartment, the agents founds both the handguns and the shotgun.
Id. at 6. McShane attacked the issuance of the warrant because the supporting
affidavit because it “did not allege any link between the weapons and interstate
commerce.” Id. This Court held that probable cause existed because a reasonable
man would have strong grounds to suspect that the sawed-off shotgun was not
registered to the felon and one could “reasonably suspect that the weapon had
previously traveled in interstate commerce to reach Hawaii.” Id. Therefore,
probable cause existed even though the agents did not adduce specific facts in
the affidavit that McShane did not fall into the narrow registering exception. See8
id.
In United States v. Thorton, a police officer contacted a motorist and saw
about eight inches of an altered gun stock protruding from underneath the
driver’s seat. 710 F.2d 513, 514 (9 Cir. 1983). The driver was arrested forth
violating Idaho’s concealed weapons statute. Id. The defendant contended that
the officer did not have probable cause to make the arrest. Id. 514-515. This
Court held that the “officer's lack of specific evidence that [the defendant] was
not entitled to possession of the gun is irrelevant. Probable cause does not
In this case, although the parties concentrated their arguments on Wash. Rev.8
Code § 69.51A.040 conditions such as plant count and authorization, due to theconjunctive drafting of the conditions precedent to the narrow exception, all lawenforcement officer s would have to do is disprove one of the conditions. Here,compliance with the registry conditions (provisions (2) and (3) of Wash. Rev. Code§ 69.51A.040) is not possible because there is no registry. Arguably, affiants can“reasonably suspect” that a qualified patient or designated provider is not registered,because there is no registry, and thus not in compliance with at least two of therequisite provisions of the exception.
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require specific evidence of every element of an offense.” Id. at 515. In a similar
vein, this Court held in Porter v. United States, that federal agents executing a
search warrant properly seized a sawed-off shotgun in the trunk of a vehicle. 335
in private hands is not an intrinsically innocent object. The possession of it is a
serious crime, except under extraordinary circumstances.” Id. The court went on
to indicate, “It would have been sheer fantasy on the part of the officers to have
supposed that [the defendant] would have registered a sawed-off shotgun with
federal authorities. The Constitution does not require law enforcement officers to
play makebelieve.” Id. Following the above cases, the district court’s ruling is
incorrect.
Taken to the extreme, the district court’s view would mean that officers
would have to rule out every exception to every criminal law in order to establish
probable cause. That cannot be correct because, as the Supreme Court has held,
“[p]robable cause does not require the same type of specific evidence of each
element of the offense as would be needed to support a conviction.” Adams v.
Williams, 407 U.S. 143, 149 (1972). Without any knowledge regarding the
individuals' medical marijuana status, the officers could still establish a "fair
probability" that contraband would be found in the residence. See Gates, 462
U.S. at 238. If, as happened in State v. Fry, 228 P.3d 1, 5 (Wash. 2010), an
individual produces a medical marijuana card when the police show up to search
a residence, then that information may negate probable cause if Wash. Rev. Code
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§ 69.51A.040 truly does have the effect of decriminalizing the use of “medical”
marijuana; however, that did not happen here before the search, and in the
absence of any knowledge to suggest that a possible narrow “medical” marijuana
exception applies, the officers had probable cause to believe a crime was being
committed in the residence. The district court erred when it found that officers
had to specify that a possible narrow exception to the general prohibition did not
apply in order to have probable cause that the general marijuana statute was
being violated.
B. BECAUSE QUALIFIED PATIENTS AND DESIGNATED PROVIDERSCANNOT COMPLY WITH THE CONJUNCTIVELY DRAFTEDCONDITIONS OF WASH. REV. CODE § 69.51A.040, THEWASHINGTON LEGISLATURE’S ATTEMPT TO DECRIMINALIZETHE USE OF “MEDICAL” MARIJUANA IS INEFFECTIVE, LEAVINGONLY THE AFFIRMATIVE DEFENSE.
1. Standard of Review
“This [C]ourt reviews the district court's interpretations of federal and
state statutes de novo.” Unocal Corp. v. United States, 222 F.3d 528, 542 (9th
Cir. 2000) (citing Alexander v. Glickman, 139 F.3d 733, 735 (9 Cir. 1998)).th
2. Because the Provision Establishing a State Registry for “qualifyingPatients” and “Designated Providers” was Vetoed, and Thus NotEnacted with the July 2011 Amendments, Wash. Rev. Code §69.51A.040 Remains at Most an “Affirmative Defense.”
Because compliance with Wash. Rev. Code § 69.51A.040 is not possible
due to the Washington Governor’s veto of the proposed legislation establishing a
state registry for qualified patients and designated providers, the Washington
Legislature’s attempt to create a narrow exception to the general prohibition on
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manufacturing marijuana, see Wash. Rev. Code § 69.50.401, decriminalizing the
use of “medical” marijuana is ineffective. The fact that compliance with the
required conditions precedent necessary to fall into the intended
decriminalization category is impossible renders the only statutorily authorized
relief for qualified patients and designated providers to be the affirmative
defense set forth at Wash. Rev. Code § 69.51A.047. This argument was not
directly made in the District Court. This Court has stated that it will consider9
arguments raised for the first time on appeal “when the issue is purely one of
law.” Baccei v. United States, 632 F.3d 1140, 1149 (9 Cir. 2011) (citing Kimesth
v. Stone, 84 F.3d 1121, 1126 (9 Cir.1996)).th
First, the Washington Supreme Court decided the possession of marijuana
– regardless of whether it was "medical" marijuana or "recreational" marijuana –
is a crime:
[W]e have recognized that Washington voters created acompassionate use defense against marijuana charges. Anaffirmative defense admits the defendant committed a criminal actbut pleads an excuse for doing so. The defendant must prove an
Although none of the parties fully developed legislative history arguments, the9
United States did argue that Wash. Rev. Code 69.51A.040 continued to serve as anaffirmative defense – not the decriminalization of manufacturing marijuana so longas such “use” conformed to the statutory requisites of Wash. Rev. Code §69.51A.040. See ER 100-108. Furthermore, in his Response to the United States’Motion for Reconsideration, Defendant McKinley asserted that “[t]he legislatureclearly recognized [that is not possible to obtain marijuana for medical purposeswithout first manufacturing it] when it authorized the manufacture of marijuana bymedical marijuana patients or by their designated providers, so long as certainconditions are met.” ER 144. As such, the United States respectfully submits thatneither party waived further argument in support of the interpretation of Wash. Rev.Code 69.51A.040.
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affirmative defense by a preponderance of the evidence. Anaffirmative defense does not negate any elements of the chargedcrime.
Possession of marijuana, even in small amounts, is still a crime inthe state of Washington.
State v. Fry, 228 P.3d 1, 7 (Wash. 2010) (emphasis added; internal citations
omitted).
Second, it is important to understand that an affirmative defense comes
into play only at trial. In Washington, police may obtain and execute a search10
warrant or arrest a person regardless of the potential existence of an affirmative
defense. See Fry, 228 P.3d at 7. Similarly, a prosecutor may charge a person
with a crime though that person may have a valid affirmative defense. Id. The
burden is on the defendant to prove the affirmative defense. Id. A person
asserting this affirmative defense admits the elements of the crime charged, but
pleads an excuse for committing the crime. Accordingly, an affirmative defense
does not alter the underlying criminality of the prohibited act. An affirmative
defense, therefore, does not make conduct "legal."
(a). Engrossed Second Substitute Senate Bill 5073 As Passed ByWashington Legislature.
During the 2011 legislative session, the legislature passed Engrossed
Second Substitute Senate (hereinafter “E2SSB”) 5073, which amended
Washington’s “medical” marijuana chapter. Among other modifications to the
"An affirmative defense is a set of facts that entitle the defendant to acquittal,10
even though the State has proved every element of the crime charged." Fine andEnde, WASH. PRAC. CRIMINAL LAW, §105 (2nd ed. 2010).
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language of Wash. Rev. Code § 6951A.040, the bill would have established a
statewide voluntary registry for qualifying patients. In essence, the use of
medical marijuana by qualifying patients who registered and met certain other
requirements would not have constituted a crime and those patients would have
been immune from arrest and other consequences.
(b). Arguably, the Registry was the Linchpin of the Scheme thatWould Have Made Use of Medical Marijuana to NotConstitute a Crime.
Section 901 of E2SSB 5073 directed the Washington State Department of
Health to create a "secure and confidential registration system" for qualifying
patients, designated providers, and licensed producers, processors, and
dispensers. Registration was to be "optional for qualifying patients and
designated providers, not mandatory . . . [and] qualifying patients must be able
to remove themselves from the registry at any time." See E2SSB 5073 sec.
901(6) (emphasis added). The legislature directed that peace officers be able to
"verify at any time whether a person" was on the registry. See E2SSB 5073 sec.
901(1)(a).
Qualifying patients and designated providers who were on the registry and
met certain other requirements would not have been subject to arrest,
prosecution, or other criminal or civil sanctions. See E2SSB sec. 401, codified
at Wash. Rev. Code § 69.51A.040; see also E2SSB 5073 Senate Bill Report at 2
(Qualifying patients and their designated providers are provided with arrest
protection and warrantless searches if they are registered with DOH and meet
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other requirements.). Similarly, licensed producers, processors, and dispensers
were not subject to arrest, search, prosecution, or other criminal or civil
consequences if they were licensed. See E2SSB 5073 sec. 601 (producers), sec.
602 (processors), sec. 701 (dispensers).
The registry was a central and essential component of making the use of
medical marijuana not to constitute a crime. Indeed, the scheme created by the
legislature in E2SSB 5073 clearly contemplated two sets of qualifying patients –
those who were voluntarily on the registry and those who were not registered
(but who possessed "valid documentation" from their health care provider). The
first group would not be committing a crime when they used medical marijuana
and met the other requirements contained in the bill. The second group would be
committing a crime, but would be able to avail themselves of an affirmative
defense. This dual structure underlines the legislature's understanding that it11
was not "legalizing" marijuana, but was making the use of marijuana for medical
purposes by those who had registered (and met other requirements) to not
constitute a crime. Accordingly, possession of marijuana remained
See E2SSB 5073 sec. 402 ("A qualifying patient or designated provider who11
is not registered with the registry established in *section 901 of this act may raise theaffirmative defense . . . ."). Codified at Wash. Rev. Code § 69.51A.043. The billprovided two other affirmative defenses not relevant to this analysis. See E2SSB5073 sec. 405 (affirmative defense for patient possesses marijuana exceeding limitsin WASH. REV. CODE § 69.51A.040 – codified at Wash. Rev. Code § 69.51A.045);E2SSB 5073 sec. 406 (affirmative defense for patient who fails to presentdocumentation – codified at WASH. REV. CODE § 69.51A.047).
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presumptively a crime -- even under the framework that would have been created
by E2SSB 5073.
(c). Veto of the registry made it impossible for medical marijuanause to not constitute a crime; all marijuana use is still a crimein Washington.
When the legislature passed E2SSB 5073 to amend chapter 69.51A, it
attempted to create an avenue for qualifying patients to avoid any criminal or
civil liability for their use marijuana for medical purposes. That avenue required
that the qualifying patient be registered. The Governor's veto of the registry12
provision, however, eliminated the legislature's avenue for qualifying patients to
use medical marijuana without it being a crime.
The Governor vetoed several sections of the bill including the registry
provision. Section 901 creating the registry was vetoed. The sections13
regarding producers, processors, and dispensers were vetoed. The veto of these
See E2SSB 5073, sec. 401 (for use not to constitute a crime, qualifying12
patient must present proof of registration with the department of health) (nowcodified at Wash. Rev. Code § 69.51A.040(2)), (for use not to constitute a crime,qualifying patient must keep a copy of proof of registration with the registry postedprominently next to any cannabis plants, cannabis products, or useable cannabis)(now codified at WASH. REV. CODE § 69.51A.040(3)). See also E2SSB 5073 SenateBill Report ("Qualifying patients and their designated providers are provided withprotection from warrantless search and arrest if they are registered with DOH. Lawenforcement officers may seek a search or arrest warrant if the officer determines thatthe person is not registered with DOH . . . .") (emphasis added). The Senate BillReport cited here was written prior to the Governor's veto and must be distinguishedfrom the Final Bill Report prepared after the Governor's veto. Thus, the Senate BillReport reflects the legislature's pre-veto views of the legislation.
The governor may veto an entire bill or specific sections of a bill, but not less13
than a section. Wash. Const. Art. III, sec. 12 ("Provided, That he may not object toless than an entire section . . . .").
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sections eliminated the immunity from arrest and other protections that had been
in the bill. See See Washington Final Bill Report, 2011 Reg. Sess. S. B. 5073
("The Governor vetoed provisions that would establish a patient registry within
the Department of Health (DOH) and provide arrest protection for those patients
who register.").
(d). Statutory Construction
The Governor's partial veto message clarifies that qualifying patients and14
designated providers may still assert an affirmative defense, but do not have
immunity from arrest:
I am not vetoing Sections 402 or 406, which establish affirmativedefenses for a qualifying patient or designated provider who is notregistered with the registry established in section 901. Because thesesections govern those who have not registered, this section ismeaningful even though section 901 has been vetoed.
Washington Governor's Partial Veto Message, April 29, 2011.
Although the Governor did not veto section 102, see Wash. Rev. Code §
69.51A.005, which recites that qualifying patients and designated providers
"shall not be arrested, prosecuted or subject to other criminal sanctions or civil
consequences under state law based solely on their medical use [or assisting with
the medical use] of cannabis . . . [,]" this section amended Wash. Rev. Code §
69.51A.005 which is the statement of legislative intent. "[A] statement of
legislative intent, used by the Legislature as a preface to an enactment, lacks
The Washington Governor's veto statement is a part of legislative intent. 14
State v. Dep't of Ecology v. Theodoratus, 957 P.2d 1241, 1247 (Wash. 1998).
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operative force in itself, although it may serve as an important guide in
understanding the intended effect of operative sections." Accordingly, section15
102 does not create immunity from arrest and prosecution or other consequences
by itself; there must be some operative section that does so.
In short, the plain language of section 401 (codified at Wash. Rev. Code §
69.51A.040) demonstrates that possession, delivery, or manufacture of medical
marijuana is still a crime in Washington because a qualifying patient cannot meet
the requirements to make use not constitute a crime. Section 401 amended
Wash. Rev. Code § 69.51A.040 and is the key section in determining whether a
qualifying patient is in compliance with the chapter. It purports to make the use
of medical marijuana to not constitute a crime if the qualifying patient meets a
series of requirements including that he or she be on the state registry. These
requirements are set forth in a list that uses an "and" to connect each subsection.
Statutory phrases separated by the word "and" are construed in the conjunctive. 16
See In re Detention of R.W., 988 P.2d 1034, 1038 (Wash. App. 1999) (citing15
State v. Alvarez, 872 P.2d 1123, 1128 (Wash.App.1994) (citing Hartman v. StateGame Comm'n, 532 P.2d 614, 616 (Wash. 1975), aff'd, 904 P.2d 754 (Wash. 1995)(Because legislative intent section is not operative, it is not substantive law, andcannot be used to justify a jury instruction)). Hartman v. State Game Comm'n, 85Wn.2d 176, 179, 532 P.2d 614 (1975), aff'd, 128 Wn.2d 1, 904 P.2d 754 (1995)("Where the legislature prefaces an enactment with a statement of purpose such asRCW 77.12.010, that declaration, although without operative force in itself,nevertheless serves as an important guide in understanding the intended effect ofoperative sections. State ex rel. Berry v. Superior Court, 159 P. 92 (Wash. 1916);Whatcom County v. Langlie, 246 P.2d 836 (Wash.1952).").
See HJS Dev., Inc. v. Pierce County, 61 P.3d 1141 (Wash. 2003) citing 1A16
NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 21:14, at 179-81(6th ed. 2002). See also, State v. Brunson (In re Brunson), 905 P.2d 346 (Wash. 1995)
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Thus, in order for a qualifying patient's use of medical marijuana to not
constitute a crime, each of the requirements must be met. Because the registry
provisions were vetoed, it is not possible be on the registry and thereby to meet
all the requirements statutory requirements. Consequently, any use of medical
marijuana is still a crime.
As amended by this section Wash. Rev. Code § 69.51A.040 now reads:
Wash. Rev. Code § 69.51A.040 Compliance with chapter —Qualifying patients and designated providers not subject to penalties— Law enforcement not subject to liability.
The medical use of cannabis in accordance with the terms andconditions of this chapter does not constitute a crime and aqualifying patient or designated provider in compliance with theterms and conditions of this chapter may not be arrested,prosecuted, or subject to other criminal sanctions or civilconsequences, for possession, manufacture, or delivery of, or forpossession with intent to manufacture or deliver, cannabis understate law, or have real or personal property seized or forfeited forpossession, manufacture, or delivery of, or for possession withintent to manufacture or deliver, cannabis under state law, andinvestigating peace officers and law enforcement agencies may notbe held civilly liable for failure to seize cannabis in thiscircumstance, if:
(1)(a) The qualifying patient or designated provider possesses nomore than fifteen cannabis plants and:
(I) No more than twenty-four ounces of useable cannabis;
("And" implies a conjunctive standard — the inference must be both the sole andsufficient proof of an element.) Ski Acres, Inc. v. Kittitas County, 827 P.2d 1000(Wash. 1992) (The statute contains an "and", not an "or". We thus read the "and" assimply being an "and". The Legislature would have used the word "or" if it hadintended to convey a disjunctive meaning. See State v. Carr, 97 Wn.2d 436, 439, 645P.2d 1098 (1982) (where the lower court erred in reading an "and" in former JCrR4.10 as conveying a disjunctive meaning); Childers v. Childers, 575 P.2d 201 (Wash.1978) (the word "and" does not mean "or").
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(ii) No more cannabis product than what could reasonably beproduced with no more than twenty-four ounces of useablecannabis; or
(iii) A combination of useable cannabis and cannabis productthat does not exceed a combined total representing possession andprocessing of no more than twenty-four ounces of useable cannabis.
(b) If a person is both a qualifying patient and a designatedprovider for another qualifying patient, the person may possess nomore than twice the amounts described in (a) of this subsection,whether the plants, useable cannabis, and cannabis product arepossessed individually or in combination between the qualifyingpatient and his or her designated provider;
(2) The qualifying patient or designated provider presents his orher proof of registration with the department of health, to any peaceofficer who questions the patient or provider regarding his or hermedical use of cannabis;
(3) The qualifying patient or designated provider keeps a copy ofhis or her proof of registration with the registry established in*section 901 of this act and the qualifying patient or designatedprovider's contact information posted prominently next to anycannabis plants, cannabis products, or useable cannabis located athis or her residence;
(4) The investigating peace officer does not possess evidencethat:
(a) The designated provider has converted cannabis produced orobtained for the qualifying patient for his or her own personal use orbenefit; or
(b) The qualifying patient has converted cannabis produced orobtained for his or her own medical use to the qualifying patient'spersonal, nonmedical use or benefit;
(5) The investigating peace officer does not possess evidencethat the designated provider has served as a designated provider tomore than one qualifying patient within a fifteen-day period; and
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(6) The investigating peace officer has not observed evidence ofany of the circumstances identified in *section 901(4) of this act.
Notes: *Reviser's note: Section 901 of this act was vetoed by thegovernor. (emphasis added).
The requirements are set forth in conjunctive language, so each of them
must be met before the medical use of marijuana does not constitute a crime and
before a person will be exempt from arrest and other consequences. Because the
Governor vetoed the registry provisions, it is impossible to meet the
requirements in subsections (2) and (3) as they require a qualifying patient or
designated provider to possess "proof of registration with the department of
health." Because it is impossible to meet the requirements to obtain arrest
protection, manufacturing, delivering, and possessing marijuana are still crimes
under state law. As noted above, this was the legislature's understanding of the
effect of the veto as well.
Consequently, absent registration, which cannot be affected, at most the
Defendant has an affirmative defense.
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C. EVEN IF THIS COURT DETERMINES THAT THE SEARCHWARRANT DID NEED TO DISPROVE THAT THE NARROW“MEDICAL” MARIJUANA EXCEPTION OR THAT THE SEARCHWARRANT DID NOT PROVIDE PROBABLE CAUSE OF A STATEOFFENSE BASED ON THE NEWLY AMENDED, ANDINTERPRETED “MEDICAL” MARIJUANA PROVISION, THEOFFICERS WERE ACTING ON “GOOD FAITH” IN EXECUTING THEFACIALLY VALID WARRANT.
1. Standard of Review
Whether the good faith exception to the exclusionary rule applies is
subject to de novo review. See United States v. Krupa, 658 F.3d 1174, 1179 (9th
Cir. 2011); United States v. Thai Tung Luong, 470 F.3d 898, 902 (9 Cir. 2006). th
2. The District Court's Conclusion that the Good Faith Exception DoesNot Apply was Incorrect.
Notwithstanding the validity of the search warrant, assuming in arguendo
that the state judge erred in finding probable cause, the evidence obtained
through the execution of the warrant should still be admitted pursuant to the
“good faith” exception. See United States v. Leon, 468 U.S. 897, 918 (1984). In
Leon, the Supreme Court held that evidence obtained pursuant to a subsequently
invalidated search warrant need not be suppressed if the officers who executed
the warrant relied in good faith upon the issuing court’s probable cause
determination. 468 U.S. at 918. In support of this holding, the Supreme Court
reasoned that “when an officer acting with objective good faith has obtained a
warrant from a judge or magistrate and acted within its scope . . . [p]enalizing the
officer for the magistrate’s error, rather than his own, cannot logically contribute
to the deterrence of Fourth Amendment violations.” Id. at 920-921. Thus, under
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Leon, evidence obtained in violation of the Fourth Amendment need not be
suppressed if suppression would not serve the exclusionary rules’ overarching
purpose of deterring police misconduct. Id. at 919.
Even if the affidavit in this case fell short of establishing probable cause,17
based on the district court’s interpretation of Wash. Rev. Code § 69.51A.040, it
was not "so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable." Leon, 468 U.S. at 923. Most recently, the Court
in Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), reiterated that "the fact
that a neutral magistrate has issued a warrant is the clearest indication that the
officers acted in an objectively reasonable manner or, as we have sometimes put
it, in 'objective good faith.'" 132 S. Ct. at 1245 (quoting Leon, 468 U.S. at
922-923). Here, there is no dispute that the officers searched the residence for
evidence relevant to the manufacturing of marijuana, in violation of Wash. Rev.
Code § 69.50.401, pursuant to a warrant issued by a neutral Washington state
magistrate. ER 34; 43-44.
While the Court has "recognized an exception" to the general good-faith
exception "when 'it is obvious that no reasonably competent officer would have
concluded that a warrant should issue,'" the Court made clear that "the threshold
for establishing this exception is a high one, and it should be." Messerschmidt,
132 S. Ct. at 1245. "In the ordinary case, an officer cannot be expected to
Arguably, the district court conceded that the affidavit supported probable17
cause for a violation of the general prohibition on manufacturing marijuana inviolation of Wash. Rev. Code § 69.50.401. ER 106; 128.
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question the magistrate's probable-cause determination," and the limitation on
the good-faith exception to the exclusionary rule when an affidavit's
probable-cause showing is obviously deficient is a "narrow" one and "will be
met" only in "rare" circumstances. Id. at 1245-1246, 1250. The circumstances in
this case do not come close to meeting that high threshold. The affidavit clearly
supported probable cause for a violation of Wash. Rev. Code § 69.50.401. ER
33-44; 101. Furthermore, although the affidavit did not state as such,
compliance with the possible narrow exception set forth at Wash. Rev. Code §
69.51A.040 is not possible. Thus, to hold law enforcement officers accountable
as to have not acted in “good faith” – when compliance with the intended, but
ineffective exception to the general prohibition of manufacturing marijuana is in
err.
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Furthermore, an affidavit is not so lacking in indicia of probable cause if it
is "sufficient to create disagreement among thoughtful and competent judges as
to the existence of probable cause." Leon, 468 U.S. at 926; see also United
States v. Fowlie, 24 F.3d 1059, 1067 (9 Cir. 1994). At the time the Washingtonth
judge issued the warrant, the newly amended Wash. Rev. Code § 69.51A had
neither been substantively interpreted or apparently tested by any court, and no
court had called into doubt the Washington Supreme Court's holding in State v.
Fry. Therefore, it was reasonable for a well-trained officer to believe that the18
Washington magistrate's warrant was valid even without any statement regarding
medical marijuana status. Because the warrant affidavit established at least a
colorable argument for probable cause, the "good faith" exception to the warrant
requirement applies. Leon, 468 U.S. at 923. The district court's conclusion to
the contrary was incorrect.
The issue may have been raised in Washington state courts since July 22,18
2011. However, the United States was unable to locate any authoritive precedentaddressing amended Wash. Rev. Code § 69.51A.040 or the validity of State v. Fry.
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VII. CONCLUSION
For the above-stated reasons, the United States respectfully requests this
Court to reverse the district court’s granting of the Defendants’ Motion to
Suppress Evidence obtained pursuant to the Washington state-court issued
search warrant executed on the premise located at 11911 N. Judkins Rd.,
Spokane, Washington.
Michael C. OrmsbyUnited States Attorney
s/Russell E. Smoot
Russell E. SmootAssistant United States AttorneyAttorney for Plaintiff-Appellee
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STATEMENT OF RELATED CASES
Counsel for the plaintiff-appellant certifies that no cases are pending in
this Court that are deemed related to the issues presented in the instant appeal.
s/Russell E. Smoot
Russell E. SmootAssistant United States AttorneyPlaintiff-Appellant
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CERTIFICATE OF SERVICE
It is hereby certified that on October 15, 2012, I electronically filed the
foregoing with the Clerk of Court for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. Participants who are
registered CM/ECF users will be served by the appellate CM/ECF system.
s/Russell E. Smoot
Russell E. SmootAssistant United States AttorneyPlaintiff-Appellant
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BRIEF FORMAT CERTIFICATION
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I
certify that the opening brief is proportionately spaced, has a typeface of 14
points or more and contains 11,793 words.
Dated October 15, 2012.
Michael C. OrmsbyUnited States Attorney
s/Russell E. Smoot
Russell E. SmootAssistant United States AttorneyPlaintiff-Appellant
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(l) 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) frned not more than twenty-five thousand dollars if the crime involved less than trvo kilograms ofthe drug, or both such imprisonment and fure; or (ii) if the crime involved two or more kilograms of the drug, then fured not
more than one hundred thousand dollars for the frst two kilograms and not more than fifty dollars for each gram in excess oftwo 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 fure; or (ii) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars
for the frst two kilograms and not more than frfty dollars for each gram in excess of two kilograms, or both such imprisonment
and fure. Three thousand dollars of the 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 used in the
manufacture of the methamphetamine, including its salts, isomers, and salts of isomers. The fine moneys deposited 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 fV, except flunifiazepam, including its salts, isomers, and salts of isomers, is guilty ofa 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 RCV/.
Credits
[2005 c2l8 $ 1, eff. July 24,2005;2003 c 53 $ 331, eff. July
c 205 $ 2;1989 c27l $ 104;1987 c 458 $ 4;1979 c 67 $ l;I,2004. Prior: 1998 c 290 $
1973 2ndex.s. c 2 $ 1; l97ll;1998 c82$2;1997 c7l $2;1996ex.s. c 308 $ 69.50.401.I
APPENDIX - 1
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Editor's and Revisor's Notes for 69.51A.040. Compliance with chapter-Qualif...
PRIOR VERSION OF RCW 69.51A.040
Laws 201 1 , ch. 181, S 401, rewrote the section, which formerly read:
'(1) lf a law enforcement officer determines that marijuana is being possessed laMully under the medicalmarijuana law, the officer may document the amount of marijuana, take a representative sample that is largeenough to test, but not seize the marijuana. A law enforcement officer or agency shall not be held civilly liablefor failure to seize marijuana in this circumstance.
"(2) lf charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in themedical use of marijuana, or any designated provider who assists a qualifying patient in the medical use ofmarijuana, will be deemed to have established an affirmative defense to such charges by proof of his or hercompliance with the requirements provided in this chapter. Any person meeting the requirements appropriate tohis or her status under this chapter shall be considered to have engaged in activities permitted by this chapter andshall not be penalized in any manner, or denied any right or privilege, for such actions.
'(3) A qualiffing patient, if eighteen years of age or older, or a designated provider shall:
"(a) Meet all criteria for status as a qualifying patient or designated provider;
"(b) Possess no more marijuana than is necessary for the patient's personal, medical use, not exceeding theamount necessary for a sixtyday supply; and
"(c) Present his or her valid documentation to any law enforcement official who questions the patient or provider
regarding his or her medical use of marijuana.
'(4) A qualifying patient, if under eighteen years of age at the time he or she is alleged to have committed theoffense, shall demonstrate compliance with subsection (3Xa) and (c) of this section. However, any possession
under subsection (3)(b) of this section, as well as any production, acquisition, and decision as to dosage andfrequency of use, shall be the responsibili$ of the parent or legal guardian of the qualifying patient."
APPENDIX - 2
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69.51A.040. Gompliance with chapter-Qualifying patients and..., WA ST 69.51A.040
West's Revised Code of Washington AnnotatedTitle 69. Food, Drugs, Cosmetics, and Poisons (Refs &Annos)
Chapter 6g.SrA Medical Marijuana
West's RCWA 69.5rA.o4o
69.54.o4o. Compliance with chapter-Qualiffing patients and designated
pror.'iders not subject to penalties--Law enforcement not subject to liability
Currentness
The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a
qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested,
prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for
possession with intent to manufacture or deliver, cannabis under state law, or have real or personal propeny seized or forfeited
for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law,
and investigating peace officers and law enforcement agencies may not be held civilly liable for failure to seize cannabis in
this circumstance, if:
(lXa) The qualifying patient or designated provider possesses no more ttran fifteen cannabis plants and:
(i) No more than rwenty-four ounces of useable cannabis;
(ii) No more cannabis product than what could reasonably be produced with no more than fwenty-four ounces of useable
cannabis; or
(iii) A combination of useable cannabis and cannabis product that does not exceed a combined total representing possession
and processing of no more than twenty-four ounces of useable cannabis.
(b) If a person is both a qualiSing patient and a designated provider for another qualiffing patienl the person may possess no
more than twice the amounts described in (a) of this subsection, whether the plants, useable carurabis, and cannabis product are
possessed individually or in combination between the qualiffing patient and his or her designated provider;
(2) The qualifying patient or designated provider presents his or her proof of registration with the departrnent of health, to any
peace officer who questions the patient or provider regarding his or her medical use of cannabis;
(3) The qualiSing patient or designated provider keeps a copy of his or her proof of registration with the registry established
in *section 901 of this act and the qualifying patient or designated provider's contact information posted prominently next to
any cannabis plants, cannabis products, or useable cannabis located at his or her residence;
( ) The investigating peace officer {oes
not possess evidence that: -
(a) The designated provider has converted cannabis produced or obtained for the qualiffing patient for his or her own personal
use or benefit; or
(b) The quali$ing patient has converted cannabis produced or obtained for his or her own medical use to the qualiffing patient's
personal, nonmedical use or benefit;
APPENDIX - 3
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69.51A.040. Gompliance with chapter-Qualifuing patients and..., WA ST 69.51A.040
(5) The investigating peace officer does not possess evidence that the designated provider has served as a designated provider
to more than one qualifying patient within a fifteen-day period; and
(6) The investigating peace off,rcer has not observed evidence of any of the circumstances identified in *section 901(4) of this act.
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69.51A.047. Failure to register or present valid..., WA ST 69.51A.047
West's Revised Code of Washington AnnotatedTitle 69. Food, Drugs, Cosmetics, and Poisons (Refs &Annos)
Chapter 6g.StA Medical Marijuana
West's RCWA 6g.StA.o+Z
6g.SrA.o+2. Failure to register or present valid documentation--Affirmative defense
Currentness
A qualiffing patient or designated provider who is not registered with the registry established in *section 901 of this act ordoes not present his or her valid documentation to a peace officer who questions the patient or provider regarding his or hermedical use of cannabis but is in compliance with all other terms and conditions of this chapter may establish an affrmativedefense to charges ofviolations ofstate law relating to cannabis through proofat trial, by a preponderance ofthe evidence,that he or she was a validly authorized qualifying patient or designated provider at the time of the officer's questioning. Aqualifying patient or designated provider who establishes an affirmative defense under the terms of this section may alsoestablish an affrnnative defense under RCW 69.51,4..045.
Credits
[20] I c 181 $ 406, eff. July 22,2011.)
West's RCWA 69.514.047, WA ST 69.514.047
APPENDIX - 5
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CERTIFICATION OF ENROLLMENT
ENGROSSED SECOIID SI'BSTITUTE SENATE BILL 5073
Chapter 181, Laws of 20lt
(partial veto)
62nd Legislature2071 Regular Session
MEDICAL CANNABIS
EFFECTIVE DATE z 01 /22/LL
PassedYEAS
by2'7
the Senate April 21, 20tlNAYS 21
CERTIF]CATE
I, Thomas Hoemann, SecretarY ofthe Senate of the State ofWashington, do hereby certify thatthe attached is ENGROSSED SECONDSTJBSTITUTE SE1i[ATE BILI 5073 ASpassed by the Senate and the Houseof Representatives on the dateshereon set forth.
THOMAS HOEMANN
Secretary
FlLED
April 29, 2017
Secretary of StateState of Washington
BRAD OWEN
President of the Senate
Passed by the House April ll, 2077YEAS 54 NAYS 43
FRANK CHOPP
Speaker of the House of Representatives
Approved April 29, 201l-,the exception of Sections410, 417, 472, 601, 602,606, 60't,608, 609, 610,103, 704, 705, 80]-, 802,go6, 80'l , 901, 902, 1"L04,1203 and 1206, which are
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ENGROSSED SECOIID SI'BSTITUTE SENATE BILL 5073
AS AMENDED BY THE HOUSE
Passed Legislature - 20lL Regular
State of Tlashington 62nd Legrislature
By Senate Ways & Means (originally sponsoredDelvin, Keiser, RegaIa, Pf1ug, Murray, Tom,Chase )
READ FIRST T]ME 02/25/LL.
Session
2OLL Regular Session
by Senators Kohl-Welles,Kl-ine, McAulif f e, and
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AN ACT Relating to medical- use of cannabis; amending RCW
59.51-A.005, 69.5LA.020, 69.51A.010, 69.51.A.030, 69.51A.040, 69.51A.050,69.51A.060, and 69.51A.900; adding new sections to chapter 69.51A RCW;
adding new sections to chapter 42-55 RCW; adding a new section tochapter 288.20 RCW; creating new sections; repealing RCW 69.514.080;prescribing penal-ties; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
PART ILEGISI.ATIVE DECI,ARJATION A}ID INTENT
*!|Efi[__SECII:[ON._ Sec. 707. (7) Tbe Tegislature iater.ds to amead ond
clarify the Law oa Xhe merli c,al tu,se of caaaabis so tbat:(a) Qualifyiag patieats aad desiga.ated providezs coryTying: ritb. the
telzas of tbis act and registering with the departueat of bealtb wiIT ao
Tonger be sttbject to arrest or p.zosecutioa', othez criminal sar.ctiolas,or civiT c,oasequler.ces based solely oa their medical use of c,aaaabis;
(b) Qualifyiag patients wiTJ- b,awe ac,c,ess to aa adequate, safe,conszsteat, aaid sec:are sourc;e of aerlical qaality eannabis; and
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(c) Eealtb. caae professioa,als may autborize the medi cal u.se ofcaanabis ia tbe raztna.er provided by this act witborut fear of statecriaiaaJ- or civil saactj.olcs.
(2) This act is aot iater,ded to amend or sryersede Washiagtoa stateLaw prohibitiag the acquisitioa, possessioa, maaufactare, sale, or useof c,aaa.abis for aoamedical pu4toses.
(3) This aet is not iatended to coryrouise comunity safety.State , cottaty, oz city corzectioaal ager.c.ies or deparfueats sha77
:retain the authority to estabJ,isla- ala.d enforce telr:aa,s for tbose or7 activesuperl;'isioa.*Sec. 707 ras vetoed. .see ,lessage at ead of chaptet.
Sec. LO2. RCW 69.51A.005 and 2010 c 284 s 1 are each amended toread as follows:
(1) The (( )) legislature findg that:(a) There is medical evidence that some patients with terminal or
debilitating ((i+Iaes.s-es) ) medica] conditions may, under their healthcare professional-'s care, ( (ma:f ) ) benefi-t f rom the medical- use of( (mariiraaa) ) cannabis. Some of the ( (i+l*es*es) ) conditions for which( (raa*ijl*a*a) ) cannabis appears to be beneficial include ( (e+emet+et:aey-
rela+ed) ), but are not limited to:(i) _Nausea ( (affd) ),_ vomiting ( (ir-eanee:-pa+i:e.n+€+-f.*E$-wast*nq
s1rndre'me) ), and cachexia associated with cancer. HIV-posj-tive status,AIDS, hepatitis C, anorexia, and their treatments;
(ii ) _Severe muscl-e spasms associated wj-th multiple sclerosis-epilepsy, and other seizure and spasticity disorders; ((epi+epsf) )
(iii) Acute or chronic glaucoma;(iv) Crohn's di-sease; and(v) Some forms of intractable pain.( (ffi--t*a+) ) (b) Humanitarian compasslon necessitates
that the decision to ( (artfierize-+he-rae+iea}) ) use ( (o+-mariat+ana) )
cannabis by patients with termina] or debil-itating ( (i++nes.ses) )
medical conditions is a personal, indlvidual decision, based upon t.helrheal-th care professional's professional medical judgment and
discretion.(2\ Therefore, the ( (peop+e-€.f -t#e-sbate-of -++as*i*qt€ft) )
Iegislature intende that:(a) Qualifying patients with terminal or debilitating ((i+Laee.ges) )
medical- _ conditions who, in the judgment of their health care
E2SSB 5073. SL p. 2 APPENDIX - 8
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pr_a.p-er authorization of ( (m*r-i-jranal I
qualifying patients for whom, inprofessional- judgment, the medlcal (
prove beneficial.
professional-s, rdy benefit f rom the medical use of ( (mariitana) )
cannabis, shaI1 not be ( (+oun+Sr*i++y-of+-erit*t*ader-s+at-e-4ati--€erMma=i-fuam) ) arrested, prosecuted,
or_subj ect_to_other_criminal-_sanctions_or_civil-consequences-understate _ law _ based _ solelv _ on _ their _medical
- use
- of
- cannabi-s,
notwithstandinq anv other provision of law;(b) Persons who act as designated providers to such patients shal-l
also not be ( ( -l*w+r) ) arrested,prosecuted, _ or _ subiect _ to _ other _ crimina]
- sanctions * or
- civil-
conseguences under state l-aw, notwithstanding any other provision ofIaw, _based_solel-y_on_their assisting wj-th the medical use of((mari1r:arra) ) cannabis; and
(c) Hea1th care professionals shall also ((Ue-exeepted-fffmiea.) ) not be arrested, prosecuted, or subject to
ol-her criminal sanctions or civil conseouences under state law for themedical use ( (t€) ) of cannabis bythe heal-th care professional's(mari-jra+a) ) use of cannabis may
(3) Nothinq in this chapter establ-ishes the medical necessitv ormedical _ appropriateness _ of _ cannabis _ for
- treating
- terminal
- or
debil-itatinq medical conditions as defined in RCW 69.51A.010.(4) _Nothing _ in _ this _ chapter _ diminishes _ the
- authority- of
correctional agencies and departments, incl-udj-nq focal- governments orj ail s . _ to _ establ- i sh_ a_procedure _ f or_determining_when_the
-use - of
cannabis would impact community safety or the effective supervision ofthose_on_active_supervision_for_a criminal_conviction, -nor-does-itcreate the right to anv accommodatj-on of any medical use of cahnabis inanv correctionaI facilitv or iail.
Sec. 103. RCW 69.51A.020 and ]-999 c 2 s 3 are each amended to readas follows:
Nothing 1n this chapter shaIl be construed to supersede Washington
state law prohibiting the acquisition, possession, manufacture, sale,or use of ( (mari-jr*ana) ) cannabis f or nonmedical- purposes. Criminalpenalties created under this act do not plecl-ude the prosecution orpuni shment _ f or_ othe r _ crime s, _ inc ludinq _ othe r
- crime s
- involving- the
manrrfacture or deliverv of cannabis for nonmedical purposes.
p. 3 E2SSB 5073. SL APPENDIX - 9
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3B
PART IIDEFTNITIONS
*Sec. 207. RCt{ 69.5LA.070 and 2070 c 284 s 2 are each alaea.ded toread as foLLows:
The defiaitj.ons in tinis sectioo aWIy tbrougb.out th.is cbapterunJ'ess tb.e coatext clearly reqraires oth.emise.
(7) "Canpabis" _stear,s_aJ-l pertq_4f_the_pJ,aat_Caaaabis _wbethergrrowiag or r.ot-: the seeds thereof : the resia extracted from aay part oftb.e tr:.J.aat' and evezAr cq>ound manafacture salt derivative, mixture,or tr:.retr:.arati.on of the tr:.],ant its seeds. or resio. For tbe F,uzEtoses oftbis_chapter , _" c,aaa,abis" _does_aot_include_the_z.attare_stalks_o:f._tbepJ.ant. fiber p.rodlo.c,ed from tb.e stalks oiL or cake made from tbe seedso:E_ the _plaat _any_otber _ cqtouod _manro.facture, _ salt, _derivative,mixtare, _ or _preparation _ o :E _ tbe _ma.ture _ s talk s, _ except _ tbe
- res ia
extracted tb.erefrom fi.ber oil or c,ake, or the sterilized seed of thepJ,aa.t which is iacaFlable of gemination. iEhe tem "caala,abis" ir.c.lu,descanlaabis prodacts and aseabl-e c,aanabis.
(2r "Caaa.abis analysis Taboratonr" mear,s a Taboratory that perforrlaas
c aanab i s _ ex t r a c t s, _b.aw e _ a _me a s ur ab I e _!HC _ c onc eat r a t i on _ar e a t e r tbaath.ree-tenths of one tr:.erc,eat and are inter'ded for hulaaa coagwtioa orawlicatioa - includiag, but not Timited to edible P.roducts tj.r.cttzresa a Utions. fne_tem "canrabis P.rodacts"_does not_i.r.clude useableannabis. The definitioa. of "caztaabis tr:.roducts" as a reasuregae,ot of
THC oacentration. onlv atr:rl.J-ies to. the tr:.rovisions of this chapter ar,dsba 7 _ao t *be _ c ons i der ed_ aW I i c ab 7e _ to _any _ cr iraiaal _ Taws _re Tated_ tomarijuaaa or c,aanabis.
(4, t'CorreeLionaa faciaatrz't has tba sarzz,a meantino a-s orovi-dad in RCjf
72.09.075.(5) _ "Corrections _aqer.cv_ or _deparfueat" _meera,s -aay-agency-ozdeparfueat ia the state of Washinaton, incZudiaq Tocal oowerrm.eats or
i ai s . _ tb.at _ is _ rzes ted _.wi.!jh _ the _ respoasibiTity -
to _maa,a<rle * tboseiadividua s who. are beiag srolperrrised;La the conqtaity for a criaiaalc,oavictioa and_bas_estabJ,ished a. written policw for detelrzaiai.ag 'whea
the medi c a 7_ us e_ qlE_ c a nr,ab i s, _ in c ludirq _p o s s e s s i oa, _aaauf a c tur e, _ o zdelivery of or for possession. with iateat to aaoufacture or deJ,ivez,is itlaor:.si^stant wiLh anr.d r:ottL.?an Lo Lha rre-r.sozl t s srctoervi.sion -
E2SSB 5073. SL p. 4
APPENDIX - 10
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(6) "Desigaated prowidet" meer:as a Person(a) Is eighteea years of age or older;(b) Eas beea designated in ( (*i+iad )
and d.ated by a qaaliftiring patient to serreunder this c.hapter; aad
( c) fs ( @rce+g++ea-e-em,-eeasumriag-lrar*jraaa-ob+*iaed_f.o=-++erieasoaa*r tue': ea
(d) Is t-,}.e des,*gaahed p=ovj'de,|. Eo o'E']. o'Ee f,,aEieat aE *y oae E*-e,1+) ) in corrrr.J-ianc,e witb. the telr:as and conditioas set fortb in RAI
69.sla.040.A_qual i fying p a t i eat _@y_b e _ tbe _de s i gmat e d p r ov i de r
- t o r.- ar,o *eS.
qtalifyingr Patie t a d be ia.. trl,ossession of both Patieats I c,aaa.abis attbe same time.
(7t "Director" me,aa.s the director of tb.e delc.arfuent of aqricuTtuze.(8) "Dispettse" me,arts the serection' measuriaq' pac.ka(Ii3.a' r*elizg-
deliverAr, _es_retaiT_sal-e_o:!_caana,abi,s_by_a_Ticer,sed-disP,er,ser-to-agaaJ-ifying trlatieat or desigmated P.rowider.
(9) "Eealth caae professionalr" fot Puz.poses of tb'is cbapter oaly,mea:as a pbysician Tieeased uader chapter 78.77 RCt{, a physiciaoassj.staat Liceased ur.der chapter 78.7LA RCW. aa osteopathic physiciaoTiceased uarder chapter 78.57 RCtf, an osteopatb.ic pbysiciaa,st assistaatTiceased under chapter 79.57A RCti[, a aahuroStath Tic,er,sed under cbapXer
i t tea, Pr i,ated, o rgrcaphic matter (at u oa any azzaabis inter.ded for medical use, or (b)
aceoryanyiagr such canla,abis.( 7 2 ) _ " L i c,eas ed _ di sr:,ens er " _me ar,s _ a _per s oa _ 7 i c,ea,s ed
- to
- di sPer,s e
aaa.abis _ f or _ edical_ use _ to _ qaaLifying _patients -
and -
desianatedproviders by the deparfueat of health in accordance witb ru1es adoptedby the detr:,artueat of b,ealfh tr:r:grsuant to the teJrJ0.s of tlzis c.hatr,f-er.
( 7 3 t _ " L i eea,s ed _pro ce sE oE _ o :E _ c,annab i s _lc.rodac t s " -lreErrrs -
a -per
s on
7 i c ea s ed _bv _ tbe _ dep ar fuent _ o :E _ aqr i cul tur e _ t o _manaf a c tur e . P t o c e s s,hand e, _a d_J,abel _cannabj-s _products
-for -wboJ'.esaJ.e -to -J.icer,seddistrrensers.
who:
a writtea. doclura.eat siqnedas a desigaated provider
p. 5 E2SSB 5073. SL APPENDIX - 11
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(74t "Lieeased I:.rod'u.cer" rrleaas a tr:.ersoa f-ic'ensed by the deParfueotof agrciculture to produce cannabis for medical use for whoJ'esaj.e toTicensed_disPeasers _anclTic,ensed tr:.rocessors_c;E_canrlabi,s. trl.zodttcts_iaaccord,aace with nzJ.es adopted by the deIlarfueat of agrriculture Prursu,aatto th.e tem.s of this cb,apter.
(75) "I,tedical ru,se of ( (w**ira€,aa) ) c,aa,Ebis" a,eau,s the maaufacture,productioa, processing possessioa, traasportatioa.
- delivezar,
diqPensiag iagestioa. awlicatioa e7 *dmi aistratioa of ( (a*+jaaaras de#aed, ia lllgtf 69;50,104(q) t) ) cana,abis for the exc.Jusive beaefit ofa qzalifyiag patieat ia the treatueat of his or her te;rraioal ord&iTitating ( (i+laess) ) medical conditioa.
( H4+) ) (761 "Norcesideat" raeaz,s a person who is tworariTv in the
t_
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staf,e but is not a Washiaaton state resident.177) "Pea.ce offieer" rae,arT.s attrr 7-aw ea:Eorc,aenL oersontteJ. as defiaed
in RCW 43-7O7-O7O-(78r "Person" raeaas aa indiwidaal or an entitv.( 7 9 t _ " P er s oaaLLy_ideatif i abJ.e _inf omatioa" _W_aay-iaf omation
t a t _ iac Tude s, _but _ i s _no t _ I irai ted_ t o, _ da t a _ tha t _tzai que ly _ ideat i fydistinouish- or Lraea a oar.son'^s idanLiXv- sueh as tbe Dersoa.ts D.ame.
date of birth, or address . either aJone or whea combined witb otb,erso:azc,es t},at estabJ-is7a the tr:,erson is a qualifwiagr tr:atieat. desiga'atedprovider Ticensed tr;.roduc,er. or J,ic,el:,sed trl.roc,essor of caaaabis P.roductsfor _p >oses _ o:E _ regristratioa _witb _ tb.e _deI:arfueat _ e;E_leealtb
-otde arfue t _ 9E _ aqz.icultrrrre. fu.e _ tem _ ",:,ersoraTl-v _ ideatifiabJeinf o mat ioa " _ aI s o _ae ans _ aoy _ inf o ma t i on _us ed _by _ the _ dep arfueat _ gE
h.eaL tb _ o r _ de ar fueat _ o :E _ aqr i cuZ tuz e _ to _ ideat i 4r _ a _per s oa_ a,s -
aqualifyinq r,atient desigrrated. provider Tic;eased. rlroducer or Ticerrsedprocessor of c,aaaabis P.rodaets.
(20) -
"Plaat" -
mearas _ zrr,- orgaaism_ hawino'- at -
Teast -
threedi s t iagru i s ab 7 e _angldi s t i,ac t _ I e ave s, _e a cb _ 7 e a f _b e iacr _ a t _ 7 e a s t thz e e
enX i e ter s _ ia _ di anne Xer, _ aad _ a _ r e adi Iv _ ob s enab 7e _ ro o t _ f oma t i oac,ot:.sisXino of at aeast_ two saoazaXe and di stiac,L roots, eac,b. beiao atTeast two centimeters in J.enqttr-. Mtzltiple stalks euaar,a.tincr from thes a e _roo t_ball _gs_root -svs
tega_shaJ,J _be _cons idered part _o:f_tb.e -s ame
singrJ'e pJ,aat.(27) "Pr:oc'ess" meaas to handTe or
for nadi 4a7 1ase -
E2SSB 5073. SL p. 6
caaaabis ia P.reP.aratioa
APPENDIX - 12
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(22r "Processinq faciTity" meaz,s the trl.regaj,ses and equiP,a.eat where
cannabis products are r,anufactured processed. haa,dled. and TabeJ.ed forwh.oLesaJ.e to Ticer,sed dispensers.
( 2 3 ) - " P rod:u,c e "
-flte anc,s
- to
-p 7 aat,
- ggow,
- or
-barwe s t
- car.aab i s
medicaL tase.(24) "Productioa facilitv" rareans the premises ar,d eglu,ipmeat wbere
c aa ab i s _ i s _p 7 anted, _ grown, _harye s ted, _pro ce s s ed . _ s to r ed, -haadLedpackaged or TabeJ.ed by a Ticensed ,:rodacer for wboJ,esaJ'e delivery or
tz a str>or t at i oa _ to _ a _ L i ceas ed _ di str:,era,s er _ o r _ 7 i c,ens ed -pro
ce s s or -
o tcan abjs. Products _arr!_all_vehicJ.es_anc!_equ'itrmeot_used_to-traasportcaa abis froa a l-ic,eased tr:.roduc,er to a Ticer,sed distrl,enser or J,icelasedprocessoc of canlo'abis P.rodacts.
( 2 5 ) - " P ttb 7 i c -3.Je=.e'- - inc f'ade s- s tree ts
-ar,d a L l evs
- o :E - iac o r? o r at e d
c i t i e s _ a d _ towas ; _ s t ate _ or _ county or _ township _hi grbwavs -
or -
ro ads ;baiTdiags aad orotzr.ds used for scb.ool tr:rlo,z?oses: pttblic daace ha77s aadgrounds adjac,eat tb.ereto: p.ranises where goods and qe:r:l'-ices are offeredto tb.e public for retaiT sa]'e' public buiTdings. ptzbLic rrreetia.g' 7za77s
s tor e s, _ gan age s, _ and _ f i 7 7 iag _ s tat i or,s _whi ch. -
aE e -
opelz -
to -
aa'd -
areaeaeraTTy used by the ptzblic and to which the public is P.elr:aitted tohave unrestric,ted access' raiTroad tr.air,s, staqes. bru,ses ferries. aa,d
otber publ-ic. cortveyazr.c,es of a77 ki,nds ar.d character aa.d the dePots,stops aad waiting rooms used ia coajuactioa therewith whicb are oPerr
to u restricted :o,se antd access bw the public; pttblicly owned bath.ia.g
beach.es tr.arks or pLaygrcounds: and aII otb.er tr;.J',aces of Tike or siaiTarnature to. which the greaeraT" ptzblic has unrestricted riqbt of access,ana.d whicb are generaTTy used by tb.e public.
(26t "Qaalifying patient" meatas a P,erson wbo:(a) (il Is a patieat of a health c,are professioaal;( Hb*) ) (ii) Has been diagiaosed by f'bat b.ealtb. c,are professioaal as
having a Xelr:aiaal or debiTitatiag merl; cal coadi tioa;( (+e+) ) (iii) Is a resident of the state of Wasbiagtoa at tbe tiae
of sucb. diagaosis;( (#+) ) =6Vl Has beea advj,sed by tbat health care profess+-ogal
about the zisks aad bele,efits of tbe med; cal use of ( (a*ii'aaa) )
caaaabis; ( (ffid#) ) (v) Eas been advised by tbat health c.are professional that
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( (++ey,) ) he or sbe may belaefit froa the medical use of ( (a*i,aaa) )c'aaaabis; aad
( v i ) _ I s _ o the mi s e _ ia _ c w I i aa c e _wi th _ tbe _ t e ms _ aac! _ c oadi t i oa s
establish.ed in tb.is cb.apter.b) The te:r:m "oualifwiao oat,ient" does not ir,clude a Dersoa who is
actively beiag: sutrl.ervised for a czimiaaL conviction by a eorrectioasaqency or detrl,artuent th,at h,as detelmined that th.e telr:r..s of tbis c.D'apter
are i consisteat with aa,d coatrary to his or hez swewisioa aad a77
reJ-ated processes aad procedures reJ.ated to that swewisioa.( H'+) ) (27) "Secretazar" meaa.s th.e secretaw of bealth.(28) "Tary>et-resistant paper" meaa,s p.ap.er tb.at meets one or more of
the followiag iadustzar-recoga.ized featttres :
(a) One or ttore features designed to preveat copying of tbe paper;(b) Oae or trore features desigaed to preveat the erasuze oz
aodification of iafomation on the p.ap,er; or(c) Oae or ttore features desig:a.ed to prewent the u,se of conaterfeit
(e) E,epatitjs C with d&iTitatiag ,xausea or iatractable paiauareJ.ieved by stzndard treafuelots or medicatiolo,s; or
(f) Diseases r iaclurtia.g azlorexia, which zesult ia aausea, womitiog,( (raa+;ag) ) cachexia, atrtpetite Loss, crarytiag, seizures, rrtscle spasms,
or strtasticity, wben these syqttom,s are unrelieved by stardardtreafueats or aedieatioas; or
(g) -,Anyr other merlical conrlition dalyr aF,P.roved by tbe...Wasbiogtolastate z.edi cal qtality assraraa.ce cono,issioa ia coa,sultatioa w'ith theboard of osteopath.ic merlicine anl,d surgrery as directed ia tb.is cbapter.
( (g+) ) (30) -
"THC -
c,or.ceatratiolr" -
laearrs -
oerceat -
9E
E2SSB 5073. SL p. I APPENDIX - 14
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tetrahydrocana.abiaol content per weiqht or volume of useabJ,e caaa.abisor can:nabis product.
(37r "Useable canaabLs" means dried fTowers of t}.e Caaaabis l:.J,anthavingr a. THC coacentratioa gireater. thaa three-teaths of pg,e perceat.Useable caaaabis exc.ludes stegas stalks Teaves, seeds a,,d roots. Eorpu4toses of this subsection. "dried" means eontaiaiagr Tess tb'aa fifteea
( (#) ) (i) A stategaeat sigaed aD.d dated by a qaalifiriag patient'sbeaIth c,are professioaal written oD taryter-resistazt p,ap,er, whichstates tb.at, ia tb.e health caEe professioaaT's professior,al opiaioa,the patieat may benefit from the aertical use of ( (a*iitw) ) caaa.abis;((d
13*) ) (ii, Proof of ideatity such as a Washiagtoa state dziwer'sJ-icease or identic,ard, as defj'aed ia RqI 46.20 .035Zaac!
(iii) In tbe case of a desigmated provider, tbe signed aad dateddoatment valid foz one year from the date of sigmattare execzated bw tbequalifying P.atieat who has desigmated the tr:.rovider aad
(bl Begianing iluly 7. 2072 "valid documeatation" raeaas:( i ) _ An _ or igrinal _ s Xategaent _ s i gmed _ and _ dated _ by _ a _ qual i fiyiaq
patienX' s heaTth c,a e p ofessior:,al writtea oa taugp,er-resistaa.t paPeramd _ v a 7 i d _ f o r _ up _ t o _ one _ W az _ f r om _ tb.e _ da t e _ o :E _ tbe _he a 7 th _ c ar eprofes s ioaal I s _ s iga.ature . _whicb _s tates _ that _ in _ the _health _ c,areprofessionaT's professional opiaion the patieat aay beloefit fzom tbemedical use of c,ana,abis;
l;;l Praaf af irlanfi'l-rt cttah.r€ - fraahitta*atr c{-a{-a drirrarrc Tiaanca
or identicard as defined ia RCAI 46.20.035' aa,d
(iii) In the case of a designated prowider, the si.q;a.ed aa,d dateddocuaent vaaid for uo Lo orr.e t ea-r from tl:.e dzLe of sian:.a.tr:re axecuted
bv tb.e quaLifyiag P.atieat who has desigmated the P.rovider.*Sec. 207 yas vetoed. See ,tressagre at ead of chapter.
PART ITIPROTECTTONS FOR HEJAITH CARE PROFESSIONATS
Sec. 301. RCW 69.51A.030 and 2AI0 c 284 s 3 are each amended toread as fo]lows:
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er: in anlr manner; or denied any
ri€h+-e::-pri+i+gq;--f€.rl ) )(1) The foflowino acts do not constitute
crimes under state law or unDrofessional conduct under chapter 18.130
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RCW, _and_a_health care orofessional mav not be arrested, searched,prosecuted, _disciplined, _or_subi ect_to_other_criminal- sanctions-orcivi l- _ cons e guence s _ or_ l- iabi l- ity_under_ st at e _ law, _ or_have
- real
- or
personal propertv searched, seized, or forfei-ted pursuant to state law,notwithstanding any other provision of l-aw as l-ong as the health carenrofessi ona I comol i e.s w'i t-h subsection (2\ of this section:
((+Ll) ) (a) Advising a ((guafi+y,iftq) ) patient about the risks and
benefits of medical use of ( (mariiram) ) cannabis or that the((gual:i+y..ing) ) patient may benefit from the medica1 use of ((ma=iir*arra
rchere-st+eh-r:se-*s-t+-i+hi+-a-praFe*s-ie.*dL-s+endard-of-eare-er--*n-t#eindividual healElr eare professional's mediea* judgments)) cannabisi or
( ({+ll ) (b) Providing a ( (eta+iJy.ingr) ) patient meeting the criteriaestabl-ished under RCW 69.51A.010(26) with val-id documentation, based
upon the health care professionaf 's assessment of the ( (guafi-Frri+q) )
patient's medical- history and current medical condition, ( (tha+-themee+ea+ use of niar+ ) )
where_such_use_j-s within_a_professional_standard of care-or-in-theincliwiclr:al healt-h care orofessional's medical iudoment.
(2\ (a) A health care orofessional- mav onlv provide a patient withvalid documentation authorizj-nq the medical use of cannabis or registerthe patient with the reqistrv established in section 901 of this act ifhe or she has a new]v initiated or existinq documented relatlonshi-pwith the patient, as a primarv care provider or a specialist, relatingto the diagnosis and ongoing treatment or monitorj-ng of the patient'sterminal or debilitating medj-cal condition, and only after:
(i) _ Compl-eting _ a _physical- _ examination _ of _ the -
patient -
as
appropriate, based on the patient's condition and aqe;(ii) Documenting the terminal or debilitating medical condition of
the patient in the patient's medical record and that the patient may
benefit from treatment of this condition or its symptoms with medicaluse of cannabis;
( iii ) _ Inf orming_the_pat ient _of _other_opt ions _ f or_treatinq-theterminal or debil-itating medical condition; and
(iv) Documentinq other measures attempted to treat the terminal or
E2SSB 5073. SL p. 10 APPENDIX - 16
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1 debilitatlnq medical- condition that do not invol-ve the medi-caI use of2 cannabis.3 (b ) A health care orof ess'i ona I sha I I not :
4 (i) Accept, sol-icit, or offer anv form of pecuniary remuneration5 from_or_to_a_licensed_disoenser. _1i-censed_producer, _or_licensed6 processor of cannabis products;7 (ii) Offer a discount or anv other thing of val-ue to a qual-ifvingB patient_who_is_a_customer_of, _or_agrees_to_be_a_customer_of, _a9 particular licensed dispenser, licensed producer, or l-icensed processor
10 of cannabi-s products;11 (iii) _Examine_or_offer_to_examine_a_patient_for_purposes_of12 diaqnosinq a terminal or debilitatino medica] condition at a location13 where cannabis is produced, processed, or dispensed;14 (iv) _Have_a_business_or_practice_which_consists_solelv_of15 authorizinq the medical use of cannabis;15 (v) Include anv st-atement or referenee- wi srral or otherwi se- on the11 medical use of cannabis in anv aciverli.sement for his or her bus'i ness or1B practice; orL9 (vi)_Hol-d_an_economi-c_interest_in_an_enterprise_that_produces,20 processes, _or_dispenses_cannabis _ if _the_health_care_professional-2l authorizes the mecli ca I lrse of eannabi s -
22 (3) A viol-ation of anv Drovision of subsection (2\ of this section23 constltutes unprofessional conduct under chapter l-8.130 RCW.
24 PART IV25 PROTECTTONS FOR QUATTFYTNG PATTENTS AIID DESTGNATED PROVTDERS
26 Sec. 401. RCW 59.51A.040 and 2007 c 317 s 5 are each amended to21 read as fol-lows:28 ( ({++-*f-a-}aw-er$ot=eemeats-oftieer-determi*res-+hae-mar=iirana-i*29 W*j+anta--+a*,--ene-e++ieer30
31 i-s-1f,{-g.e-enor*gh-to-tests7-b++ts- not -s-ei-ze-t+e-rnari-fana--+ar,r-32. . e+"f-or"eeme*-oFtries=-ff-agen€y-s.h*}*-n€t-be-hd-d-qi+i++y-Jjab*e-.for333
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medj=ea}-tr€e-of*maf .ii+&nra?- wii{=}-b.e-deem€d-t'o-harre-e€+€M-anaffirmaEive defense Eo sueh eharqes blr eomgfianeerr*Ehr Ehe reqt**rernerrbs provided in Eh*s ehtapEer' Arry person meet*ng thereqt**rernentss appropriaEe te his or hrer sEaEus under th*s ehapter shall
{+Fp gu€#+y=i+q-pa+Js#i#tmder--e-ign+e-en--year+eFage-a+t#e.€.i-m'e-h.e-or-s.he-i*-a++eqed-t€-hanre-eemmit-t-ed-+he-e€fensqr-s-ha]*demenstrate eempl*anee with subseetsion (3) (a) arrd (e) of Eh*+ seeEien.+towsre+-afty-p€ssess-i-oft-trader-subseeFi-ea-€)-tfo+-e+-thi€-see+ie+--ast#-as-aq1-p=,e.due++ory -and-deeisi-olt-as-to-do*age-and+:=equeae.n-e+-use*nal+-be**resp.om-il+++-gfe+-+ee--parerr+-e.l:-+eg+I$+afdian-f++e-ffi) ) The medical use of cannabis inaccordance_with_the_terms_and_conditions_of _thi s_chapter_does_notconstj-tute a crj-me and a qualifying patient or designated provider incompliance with the terms and conditions of this chapter mav not be
arrested, prosecuted, or subject to other crimj-na1 sanctions or civil-conseguences, _ f or_pos se s s ion, _manufacture, _or_deliverv_of , _or- f orpossession with intent to manufacture or del1ver, cannabis under state1aw, _ or_have _ real _ or_personal _property_ sei zed_ or_ forfeited- forpossession, manufacture, or del-ivery of , or for possession with j-ntent
to manufacture or deliver, cannabis under state l-aw. and investigatingpeace:of f icers_and_l-aw-enf orcement_agencies_maynot-be_hel-d-civillvliabl-e for failure to seize cannabis in this circumstance, ifz
(1) (a) The qual-ifvinq patient or desiqnated provider possesses no
more than fifteen cannabis pl-ants and:(i) No more than twenty-four ounces of useabl-e cannabis;
E2SSB 5073. SL p. L2 APPENDIX - 18
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( ii ) _ No _more _ cannabi s _product _ than _what _ could_ reasonabl-y_beproduced with no more than twenty-four ounces of useabfe cannabis; or
(iii) A combination of useable cannabis and cannabis product thatdoes not exceed a combined total representinq possession and processingof no more than twenty-four ounces of useab]e cannabis.
(b ) _I f _a_person_i s_both_a_qual- i f vinq_patient_and_a_des iqnatedprovider for another qualifving patient, the person mav possess no more
than twice the amounts described in (a) of this subsection, whether theplants, _ useab]e _ cannabis, _ and_ cannabj-s _ product
- are
- possessed
individuall-v or in combination between the qualifvj-nq patient and hisor her designated provider;
(2) The qualifving patient or designated provider presents his orher proof of registration with the department of heal-th, to any peace
o f f i cer_who_que s t i ons_the_pat ient_or_provider_reqardinq_hi s_or_hermedi-cal- use of cannabis;
(3) The qual-ifyinq patlent or designated provider keeps a copy ofhi s_or_her_proof _of _reqi strat ion_with_the_reqistry_establ- i shed_insection_ 9 01_of _th j- s _act _and_the_quali f vinq_patient _or-des ignatedprovider's contact information posted prominently next to anv cannabisplants, cannabis products, or useabl-e cannabis located at his or herresidence;
(4) The investigating peace offj-cer does not possess evidence that:( a ) _The_des i gnated_provider_has_converted_cannabl s_produced_or
obtained for the qualifyj-ng patlent for his or her own personal use orbenefit; or
( b ) _The _ qualif ving_patient _has _converted_ cannab j-s _produced_orobtained for his or her own medical use to the qualifving patient'spersonal, nonmedi-caI use or benefit;
(5) The investj-qating peace officer does not possess evidence thatthe desiqnated provider has served as a designated provider to more
than one qual-ifving patient withj-n a fifteen-day period; and(6) The investigatinq peace officer has not observed evidence of
any of the circumstances identified in section 901(4) of this act.
NEW_SECTION. Sec. 4O2. (1) A qualifying patient or designatedprovider who is not registered with the regist.ry established in section901 of this act may raise the affirmative defense set forth insubsection (2) of this section, if:
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(a) The qualifying patient or designated provider presents his orher valid documentation to any peace officer who questions the patientor provider regarding his or her medical use of cannabis;
(b) The qualifying patient or designated provider possesses no more
cannabis than the l-imits set forth in RCW 69.51A.040 (1);(c) The qualifying patient or designated provj-der is in compliance
with all other terms and conditions of this chapter;(d) The investigating peace officer does not have probable cause to
believe that the qualifying patient or designated provider has
committed a felony, or is committing a misdemeanor in the officer'spresence, that does not rel-ate to the medical use of cannabj-s;
(e) No outstanding warrant for arrest exj-sts for the qualifyingpatient or designated provider; and
(f) The investigating peace officer has not observed evidence ofany of the cj-rcumstances identified in section 901(4) of this act.
(2) A qualifying patient or deslgnated provider who is notregistered with the registry established in section 901 of this act,but who presents his or her va1id documentation to any peace offj-cerwho questions the patient or provider regardJ-ng his or her medical- use
of cannabj-s, ildy assert an affirmative defense to charges of viol-ationsof state l-aw relating to cannabis through proof at trial, by a
preponderance of the evidence, that he or she otherwj-se meets therequirements of RCW 69.51A.040. A quallfying patient or designatedprovider meeting the conditions of this subsection but possessing more
cannabis than the l-imits set forth in RCW 69.51A.040(1) mdY, in theinvestigating peace officer's discretion, be taken into custody and
booked into jail in connection with the investigation of the j-ncident.
NEW_SECTION. Sec. 403. (1) Qualifying patients may create and
participate in collective gardens for the purpose of produci-ng,processi-ng, transporting, and delivering cannabis for medical use
subject to the following conditions:(a) No more than ten qualifying patients may participate in a
single collective garden at any time;(b) A collective garden may contaj-n no more
patient up to a total of forty-five plants;(c) A collective garden may contaj-n no more
E2SSB 5073. SL p. L4
than fifteen plants per
than twenty-four ounces
APPENDIX - 20
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of useab1e cannabis per patlent up to a total- of seventy-two ounces ofuseabl-e cannabis;
(d) A copy of each qualifying patient's valid documentation orproof of registration with the registry established in section 901 ofthls acL, including a copy of the patient's proof of identity, must be
avail-abl-e at all times on the premises of the collective garden; and(e) No useabl-e cannabis from the col1ective garden is delivered to
anyone other than one of the qualifying patients participating in thecol-l-ective garden.
(2) For purposes of this section, the creation of a "coll-ectivegarden" means qualifying patlents sharing responsibility for acquiringand supplying the resources required to produce and process cannabisfor medical use such ds, for example, a location for a collectivegarden; equipment, supplies, and labor necessary to plantt growt and
harvest cannabis; cannabis plants, seeds, and cuttings; and equipment,supplies, and labor necessary for proper construction, plumbing,wiring, and ventll-ation of a garden of cannabis plants.
(3) A person who knowingly vlo1ates a provision of subsection (1)
of this section is not entitled to the protections of this chapter.
NEW SECTION. Sec. 4O4. (1) A qualifying patj-ent may revoke his orher designation of a specific provider and designate a differentprovider at any time. A revocation of designation must be in writj-ng,signed and dated. The protections of this chapter cease to apply to a
person who has served as a designated provider to a qualifying patientseventy-two hours after receipt of that patient's revocation of his orher designation.
(2) A person may stop serving as a designated provider to a givenqualifying patient at any time. However, that person may not beginserving as a designated provj-der to a different qualifying patientuntil fifteen days have elapsed from the date the last qualifyingpatient desi-gnated him or her to serve as a provider.
NEW_SECTION. Sec. 405. A qualifying pati-ent or designatedprovider in possession of cannabis plants, useable cannabisr orcannabis product exceeding the limits set f orth in RCI/f, 69. 51A. 04 0 (1)
but otherwise in compllance with al-I other terms and conditions of thischapter may establish an affirmative defense to charges of violations
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of state l-aw relating to cannabis through proof at trial, by a
preponderance of the evidence, that the qualifying patlent's necessarymedical use exceeds the amounts set forth in RCVI 69.51A.040(1). An
investi-gating peace officer may seize cannabis plants, useablecannabis r oL cannabis product exceeding the amounts set forth in RCW
69.51A.040(1): PROVIDED, That j-n the case of cannabis plants, thequalifying patient or designated provlder shall be allowed to sel-ectthe plants that will remaj-n at the location. The offi-cer and his orher l-aw enforcement agency may not be held civilly liabl-e for failureto seize cannabis in this circumstance.
NEW_SECTION. Sec. 406. A qualifying patient or designatedprovider who is not regi-stered with the registry establ-ished in section901 of this act or does not present his or her val-id documentation toa peace officer who questions the patient or provider regarding his orher medical use of cannabj-s but 1s in compliance with all- other termsand conditions of this chapter may establ-ish an affirmative defense tocharges of violations of state law relating to cannabis through proofat trial, by a preponderance of the evidence, that he or she was a
validly authorized qualifying patient or designated provider at thetime of the officer's questioning. A qualifying pati-ent or designatedprovider who establishes an affirmative defense under the terms of thissection may also establish an affirmative defense under section 405 ofthis act.
*WII_flECiIEON-- Sec. 407. A noaresideat wbo is dtzly arathorized toeagaqe in the redical use of cana.abis uader th.e Taws of anotbez stateoz territory of the uaited States may raise arr affimatiwe deferse tochazges of wioJ'atioa,s of Waslzing:ton state Law relatia.g to c,aar'abis,p:rovided tbat th.e roaresider-t:
(7) Possesses Do raore th.aa fifteen caaa,abis pJ.ants and ao store tbaatweaty-fouz otzrtc,es of useabJ.e c,aor,abj's, Do more caar,abis product tbanreasoaably coald be produeed witb Do rr,ore tban tweaty-foar otznces ofusea.bJ.e c'aonabis, ot a.-. coabiaation of usea.ble calenabis and c,aaaabisprodtzct th,at does not exc,eed a combiaed total rep.reseatiag possessioaand pzoc,essir,gi of no srore thaa tweaty-fot2r oz,ac,es of useabJe caoaabis;
(2) Is in coryliaace with. alL provisioas of th.is cbapter of,hez tbaa
E2SSB 5073. SL p. t6 APPENDIX - 22
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regrui:rements relatiag to being a Wash.iagtoa resideat or possessangi
valid docuaeotation i'ssued by a Tic,er,sed health care professioaal iaWasbingtoa;
(3) Preseats the documeatatioa of authorizatioa requ,ired ur.der tbe:c,onresid.eat's authorizing state or territory's Law aad proof ofideatity issued by the authoriziag state or territory to arry Peaceofficer who questioa,s the aoaresideat regarding his or her medical use
of cannabis; ano,d
(4) Does not possess ewidel:.ce that the ronresident has c,oawerted
caa:c,abis produced or obtaired for his or her owD medical use to tbenonresideat's persottaT, aonr,edi-cal use or bea.efit.*Sec, 407 vas retoed. see ,zessagre at ead ot c,:apXer.
NEVI_SECTION. Sec. 408. A qualifying patient's medica]- use ofcannabis as authorized by a health care professional- may not be a soledisqualifying factor in determining the patient's suitability for an
organ transplant, unless it is shown that this use poses a significantrisk of rejection or organ failure. This section does not preclude a
health care professional from requiring that a patient abstain from themedical use of cannabis, for a period of time determined by the healthcare professional-, while waiting for a transplant organ or before thepatient undergoes an organ transplant.
NEW_SECTION. Sec. 409. A qualifying patient or designatedprovider may not have his or her parental rights or residential timewith a child restricted solely due to his or her medical use ofcannabis in compli-ance with the terms of this chapter absent writtenfindings supported by evidence that such use has resu1ted in a long-term impairment that interferes with the performance of parentingfunctions as defined under RCW 26.09.004.
*N W SEC:EIOE- Sec. 470. (7) Exc,ept as provided ia subseetioa (2)
of this sectioa, a qtzalifying patj.ent m,ay not be refzu,sed hotasia.g: orevicted from bousing solely as a r.esult of bis or her possessioa or use
of useabJ.e canaabis' or c,annabis prodttcts except tbat bousing provj,delrsotberwise pem.itted to enact and eaforc,e prohibitioas agaiast smokia,g
ia tbeir ho:o,sing may aply tbose proh.i-bitioas to smokiag cannabisprovided tb.at sucb smokiag prohibitions are atrtpJ,ied ar.d eaforc,ed
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eqaalTy as to t}'e smokiag of caanabis aad tb.e smoking of aL7 otbersubstaaces, includiag withoul limi f,2tioa tobaceo.
(2) Hoasiag paogyrams coataiaiDg a paogzan coryoaeDt proh.ibitiag tbease of drugs or alcohol amoag its resideats are aot required to pemitthe merl; caL use of cannabis aaoag those residents.*Sec. 470 was wetoed. .see .aessage at @d of ctr.aI,tei.
*IIEW _ SECTION. Sec. 477 . Ia iryosiag any crimiaal senter,ce ,deferred proseclation, stipulated order of c,ontinuantee, defezred&istrtositioa, or dispositiorl,al order, any court orgaaized ur,der the Taws
of Washington state may pemit tbe merli cal- use of caanaabis iacoryTiane.ce with the telr:r.s of th.is chapter ar,d exelude it as a possibleground for fiadiag that the offender has violated tb.e coaditioas ozrequirae.nts of the serterrce, deferred p.rosecutioa, stipuJ,ated order ofconti:cruance , deferred dispositioa, or dispositior,al order . ftissection does aot zequire the accowod,atioa of etny medical use ofcan:nabis ia aay correctioaaL faciTity or jai7.*Sec, 477 was wetoed. See measage aX er'd of chapXer.
*Sec. 472-
as follows:RC't{ 69.5LA.050 aad 7999 c 2 s 7 are eaeh araer.ded to read
(7) fue TawfuL possession-_deliverv, _&ispeasiaq P.roduetiola oimaaufacture of ( (#i<a+-rra:r:iita'aal I c,annabis_for_medicaT_use asauthorized by th.is c'b,apter sb,aLl r.ot zesult in the forfeiture orseizure of aay real or personaJ property ir,c.ludilo.q but not Ti.a.ited toc,aaaabis inter.ded for medic,al- use itegE,.s used to faciTitate the medicaluse of cannabis or :,ts production or disper,sia.g for medical rzse, S2E
(2) ![o p,ersoa sb,a]-l be proseclated foz eotz,strlactiwe possessioa,coaspiracy, oz any oth.er crimi-nal of fense solely for bej.ag ia tbe
edica use or its use as autborized by this cbapLer.(3) Tb.e state sba77 not be ft.eJ.d Tiable for aay deleter.ious otatcomes
from the medieal use of ( (rretiiroeaa) ) caanabis by aay qual-ifiyi,agpatient.*Sec. 472 was vetoed. .gee aessagre at ead of c.bapter.
NEW SECTION. Sec. 413. Nothing in this chapter or in the rulesadopted to implement. it precludes a qualifying pati-ent or designated
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provider from engagingproduction, possession,cannabis for medical use
in the private, unlicensed, noncommercialtransportation, delivery r oL administration ofas authorized under RCW 59.51A.040.
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PART V
LrMrrATroNs oN PROTECTTONS FOR QUAT,TFYTNG
PATIENTS A}ID DESIG}IATED PROVIDERS
Sec. 501. RCW 59.51A.060 and 2010 c 284 s 4 are each amended toread as follows:
(1) It shal-t be a ((m:L'sdemeane'l:) ) class 3 ci-vil- infracti-on to use
or display medical ( (rnari-jr*aaa) ) cannabis in a manner or place which isopen to the view of the general public.
(2) Nothing in this chapter ( (reE+l-res-aifty-healEh-i+strffineeprotr-i<er) ) establishes a rioht of care as a covered benefit oL requircsanv state purchased health care as defined in RCW 41.05.011 or otherhealth carrier or hea]th plan as defined 1n Titl-e 48 RCW to be 1iablefor any claim for reimbursement for the medical use of ( (mari-jr:a*a) )
cannabis. Such entities may enact coveraqe or noncoverage criteria orrelated poficies for payment or nonparrment of medical cannabis 1n theirsol e discret-ion -
(3) Nothing in this chapter requires any health care professionalto authorlze the medical use of ((me+iea+*'ar'*jta*a) ) cannabis for a
patient.(4) Nothing in this chapter requires any accommodation of any on-
site medical use of ((mari-jr*a+a) ) cannabis i-n any place of employment,
in any school bus or on any school- grounds, in any youth center, in any
correctional facility, or smoking ((me+iea+*a*'i=ir+a*a) ) cannabis in any
public place ((as thaE term is defined *n ReW 70.160.020)) or hotel ormotel.
(s)
bv anv person who 1s subiect to the Washington code of mifitarv justicein chaoter 38.38 RCW.
(6) ErnBlplzers mav establish drug-free work policies. NoEhing, inthis chapter requires an accommodation for the medica] use of cannabisif an employer has a drug-free work place.
(7) It is a class C felony to fraudulently produce any recordpurporting to be, or tamper with the content of any record for the
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purpose of having it accepted ds, valid documentatlon under RCW
69.51A.010(({4+) ) (32) (a) , or to backdate such documentation to a timeearl ier than 'i ts act-rral date of execution.
((+6+) ) (8) No person shall- be entitled to claj-m the ((a$tri-rma+:Lve
def-ets-e - pr€.i-id€d - i-n - l€W - €.h5}A;$4+ ) ) p r o t e c t i on -
f r om -
a r r e s t -
and
prosecution_under_RCW_ 5 9 . 5 1A. 0 4 0 _or_the _ af f irmative-defense-undersection _402 _of _ this _ act for engaglng in the medical use of( (marijran-a) ) cannabis in a way that endangers the health or well-beingof any person through the use of a motorized vehicle on a street, road,or highway,__including_violations_of _RCW _46 . 6l .502 _qr
-46 . 6L .504 ,
-orequival-ent local- ordinances.
PART VILICENSED PRODUCERS AI{ID LICENSED PROCESSORS OF CA}iINABIS PRODUCTS
*NEW_ SECTION. Sec. 607. A tr:,ensoo may a.ot act as a Ticer,sedproducer witbo:at a J-icer,se for each production facility issued by tbedeparfuent of ageiculture aa.d proaineatly d:isplayed on the premi.ses.
Provided th.ey are acting in cqtliaace with the tem.s of tbis c.haptera:r,d ntJ.es adopted to enforce and carrrf ouX its plrlrrg)oses, Tieer,sedproducers aad their a,tr,Ioyees, merr,bers, officers, aad rli rectors may
maaufactu:re, pJ'aat, cuLtivate, gJrow, barvest, produce, PrePare /propagate, process/ paekage, zepackdg€, transport, traasfer, deliwer,7abe7, relabeT, who1esal.e, or p,ossess caanabis iateaded for merlical useby qualifying patieats, inclu.li ng seeds, seerll iags, cuttiag:s, pJ,aats,and useable cannabis, ar.d may r'oX be arrested, searcbed, proseclated, oz
subject to oXher eriminal sanctions or civil c'oaseglu'eztees under stateLaw, or bave real oz p,ez.sonal property searched, seizedr ot forfeitedptarsaaat to state Law, for s:u,cb activities, notwitbstarztiag any otherprovision of Law.*Sec. 607 flas vetoed. see aessage at end of chaptet.
*NEII_SECTION. Sec. 602 . A tr:,ez.soa may not act as a J,icer,sedpl:ocessor without a Ticense for eacb p.roc,essiag faciTity issued by thedepartaett of agriculture aa.d.promiaeatly displayed,-ozt,b},e.,p.reoaises.Prowided tbey ar.e acting ia coryliaace witb the tems of this cbaptera:ord ntLes adopted to er.force ar.d carry oat its puryroses / J,iceasedprocess ors of cannabis produets and fr.eir errr Toyees , merabers , officers ,aa,d rl;rectors aay tr:,ossess useable canrtabis ar.d aaaafacture, produc,e,
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prqpa:re, p.toc,ess, packagel reE ackaga, trartsport, transfer, deJ,iver,IabeL, reJ,abel, whoLesale, oz possess caar,abjs prodacts iater,ded formerl; caL use by qualifying: patients, aad may r.ot be arrested, searehed,prosecttted, or subject to otb.er crimiaal sar,ctior,s oz civiLcoiasequea.ces uader state Law, or bave real or persoa,al propertYsear:cbed, seized, oz forfeited prarsuaat to state law, for suc'b
activities, notwithstandir,g any otb.er provisioa of 7aw.*Sec. 602 was wetoed. ,See ,oessage at a.d of cb,aptex.
*NEII_SEC:E:LaE Sec. 603. The rlirector sh.a77 a&,iaister aod carLar
out tbe provisions of tbis chapter relating to Ticel,sed prodacers aadlicensed p.roc,essors of caanabis products, and ntJ,es adopted ur.der tbischapter.*Sec. 603 was vetoed. See lressagre at eod of chaptez.
*NE9r_SECTION. Sec. 604 . (1) OD a scbeduJe detelr:ariaed by tbed.eparfueat of agriculttate / Ticel:sed producers aad Tieeased proce.ssorsraust submit reE reseatative s..rBrJ'es of canna.abis grown oz P.zoc,essed to a
can:aabis aralysis Taboratorar for gzade, coaditioa, c,aaaabir.oid profiTe,THC corcentratioa, other qualitative measureuareats of c,aanabjs iater.dedfor medical ttse I and other j,nspection stand.a.rds detelr:nir.ed by thedepartuent of agz'icultuze. Aay sarytles raaiaiag aftez testing nzst bedestroyed by the TaboratoEy oE z.eturaed to the J'ic,er,sed prodtac.er oE
Tic,eased p.roc,essor.(2) Liceased produc,ers and Ticer,sed p.rocessors must subait c,opies
of the results of tbis inspectioa aad testir,g to the departueat ofagricultaze oD a fom deweToped by tbe deparfuent.
(3) If a represeatative sarytJe of c,aztaabis tested undet th.issection has a T:HC conceatratioa of three-tenths of or.e percelot or less,tl'e Lot of caazabis tbe s.-a,q.J'e was takea from aay a.ot be sol-d forme.li cal use and mtust be destroyed or sold to a z.arlafacturer of bq>products.*Sec. 604 ras vetoed. ,See Eessagre at ead of chaptet.
*Wgl_g;ECiI:LON._ Sec. 605. Tbe departueat of agriculture may cootractwith a cantr,abis aaalysis laboraXory to c,or.duct ir.dependent ia,specXiola'''a:a,d; 'testiag of 'caanabis sary:.les to verify, testirig'-'iesu.lts provideduader sectior: 604 of tb.is act.*Sec. 605 vas vetoed. .9ee eessagre at ead of chaptet.
*NIIII__SEC1E:ION._ Sec. 606.ruf.es on:
fue deparfuea.t of agzicultare may adopX
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(7) EaciTity staadards, iaeluding scal.es, for all Ticeasedproducers aa.d Ticeosed processors of cantnabis prodtzcts;
(2) I'Ieasurqents for cannabis iatelo.ded for merl;cal to,se, iacludiaggrade, coadition, canaabinoid profiTe, THC concentratioa, otberqzalitative measurelaents, aa.d other iaspectioa star.d.ards for c,aar,abisiatended for medieal use; aad
(3) Methods to identify caanabis intended for medical use so thatsucb c,aaoabis Day be readiTy idelatified if stolea oz raowed iaviolatioa of the prowisioas of tbis c.hapter from a productioa orpzocessing faciLity, or if oth.erise unlawfuTTy traa,sported.
*IIEhI_SECTION. Sec. 607. The di rector is authorized to deoy,suspend, or revoke a produc,et's or p.roc€rssor's Ticer,se after a heariagin aay case in wb.ich. it is detezuired that tb.ere has beea a violatioaor refusa1 to coryLy with. the requireuraents of tbis c.hapter or ntlesadopted hereuader. All hearings for tbe deaial, szaspensioa, oE
revocatioa of a ptod'o,certs oE p.roc,essot's J-icer,se are subject tochapter 34.05 R&, the a&niaistrative procedtzre act, as er,acted orhereafter .'m,ended.*Sec. 607 vas vetoed. See lressage at e!.d of ehapter.
*NEW_SECTION. Sec. 608. (7) By Jaaaary 7, 2073, takiag iatocola,sideratioa, brat not beiag f-iaited by, the seczarity requiraeatsdescribed ia 27 C.g.R. Sec. 7307.77-7307.76, tbe ,lirectoz sb.a77 adoptruJ-es:
(a) On th.e ir,spectioa or gradiag aa.d eertificatioa of grade,grading factors, conlitioa, canl.a.abiaoid profiTel TEC coaceatratioa, orother qtzal.itative measureraent of cantr,abis intea,ded for medi cal use thatmast be ased by cannnabis analysis Taboratories ia sectioa 604 of thj,sact;
(b) Fixing the sizes, rtimeasiotts, and safety aad secarity featuresreqaired of coatair.ers to be used for packiag, h.aadliag, oz storiagcannabis intended for merli cal ase;
(c) Establishiag J,abeJ,iag requireoaeats for caaaabis ioteaded formedical use inclu.liag, bat not Tiraited Xo:
(i) fu.e .busiaess oE tz'ade r;l'me aad Wash.iagtoa state uaifiedbusiaess ideatifier (IJBI) anzmber of tl.e Ticeased producer of tbeeaanabis;
(ii) TEC c,onc,errtratioa; aad
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(iii) Iafomation oa whether tb.e cantaabjs was growD usia.q orgaaic,inorgaaic, or syntb.etic fertiTizeis;
(d) Establishiag requiraments for traasportatioa of canaabisiate:r,ded for aedi cal use froa productioa faciLities to proc,essir.g:
faciTities and Ticeased rti sP,ensers;(e) Establishiag security requj,reaeats for the facilities of
J-icensed producers aad J,icensed p.roc,essors of cannabis prodttcts. fueseseeurity requiraeats ntst corasider the safety of tbe J,iceasedproducers and Ticeased p.roc,essors as weIJ- as tbe safety of thecomtaity suzrouadiag tbe Ticensed produc'ers aad J,ic'ea,sed p.roc,essors;
(f) Establishing requireraeats for the J,icensare of producers, aadproc,essoas of cane,abis prodacts, settir,g forth procedures to obtaialiceases, and dete:rzainiag extr:.iration da.tes aa.d rerewal requiraeats;and
(q) Establisbing Tic,elase agtplicatioa and rer.ewal fees for theTicensure of producers and processors of canaaabis prodttcts.
(2) Fees coTl-ected ur,der this sectioa must be deposited iato tbeagricultural TocaL fiind created ia ROf 43.23.230.
(3) Duriag th,e rale-makiaq process, th.e deparfueat of ageicultareshaJ.T eonsult wittt stakeholders and persor,s witb reJ.ewant e4tertise, toinclude brrrt not be 1; mi ted to qualifi,iag patients , desigaatedproviders, healtb care professior,als, state aa.d Tocal Law er,forcemelatageacies, and tlze deparfuent of healta..*Sec. 608 was wetoed. ,see aessage at e!.d of &aptei.
*N II__SECII:LON- Sec. 609. (7) Eac.b Ticersed prodru.c,er and J.icer,sedprocessor of c,aaaabis products shaJ-T maintaia coryTete records at alltiraes with respect to a77 cattaabis produced, processed, weigb,ed,
tested, stored, slaitrtped, or soLd. The rti zector sha77 adopt ntJ.esspecifyiag tb.e mi r.imum recordkeeping requireuaaents r.ecessary to coryLywitb. this section.
(2) The prog>erty, books, records, accottots, p.ap,ers, aa.dprocee.liagsof eve4r J,ic,ensed produeer ar.d Ticeased p.roc'essoz of eaar,abis prodtzetsshaJ-l be subject to inspectioa by th.e departuent of agzicalture at aaytime duriag ordiaa4r busiaess hours. Licens-ed p,roducers and Ticeasedp::ocessors of canrabis pr.oducts shal,T maiataia adequ,ate zecords andsystas for the filiag and accouatiaq of czop prodttctioa, prodzact
raaaufacturing aad p.roc,essiag, records of weigbts a'ad measurelraeats,
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pioduct testiag, z.eceipts , canaceJ.ed receipts , other doct:oaeats , ar'dtransactions r,ec,essa4, or coannon to tbe medi eal caaa,abis iadustzar.
(3) The director may a.+miaister oatbs ad issroe subtr>oenas to coryelthe attela,dar.ce of witnesses/ or tbe production of books, doa:oareats, aadrecords aaynrhere ia tbe state pursraant to a bearir'g relative to tb.e
ptar6)oses ar,d provisioas of this c,hapter. Witnesses shaLl be eatitledto fees for atteada,ac,e aad traveT, as provided in chapter 2.40 RCW.
(4) Eacb. Ticeased producer and Tic,eased p.rocessor of caaaabisprodr:cts sha77 report iafomation to the deparfueat of agiricultare atsucb times aad as may be reasoaably required by the di rector for tbenecessary eaforcement ae.d superrrj,sion of a sottttd, reasolo'able, aa,d
efficieat caanabj.s ia,spection progzam for the protection of the healthanad weJ-fare of qaalifyiag patients.*Sec. 609 *as vetoed. See .,tessagre at end of chapter.
*NEE__SECiEION.- Sec. 670. (7) The departueat of agzicalture may qivewrittea aotice to a Licensed producer or p.rocessor of eanaabis prodlactsto furnish required reports, documents, or other requested iafomatioa,under such coarti tions ar,d at sach time as the deparfuezrt of agiriculturedeearo r.ecessary if a Ticeased prodac,er or trl.rocessor of caaa,abisproducts faiTs to:
(a) SubmiX his oz ber books, p,ap.ers,
i:a,spectioa or ano,d:it;
or property to lawfua
(b) Submit requj-red laboratozy resalts, reports, ot doet:oaeats tothe departuent of ag:ziculture by their due da,te; or
(c) Frtzrnish the departrneat of agricttlture with reguestedinfomation.
(2) If tb.e J,icensed produeez oz p.roc,essor of caarabis productsfaiTs to cory>ly with the telr:r,s of tbe notic,e withia seveaty-two hoursfrom the date of its j,ssruance r ot withia slo,ch farth.er tifre as tbedeparfueat of ag:riculture may al-J-ow, tbe deparfueat of agz.icuJ.tureshalT levy a fine of fiwe bur.dred doTTars per day froa tbe fiaal d,atefor cq>Tj'ar.ce allowed by this section oE th.e deparfueat ofagricalture. Ia tbose cases wheze Xhe faiTure to coryLy coatiarraes forfitoz:e th.aa severa days or wh.ere the dir,ec,-tor detez:aires t.he faiTtzte tocory>ly c.reates a threat to public health., pttbJ.ic safety, or a
substanXial risk of diversion of can;.aabis to ula,autb.orized p,ezsoa.s ozpirara)osest tb.e deparfunt of agiricalture may, ia Tieu of levariag fiuztber
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fines, petitioo the supez.ior couzt of the county wh.ere tbe Tic,er,see'spri:c'cipal place of busir.ess in Washiagton is located, as showa by tb,e
Ticense applicatioa, for an order:(a) Authorizing the deparfueat of agricalture to seize aad take
possession of a77 books, p.aPers, and property of all kinds used iac,oanectioa with the c,or.d'uct or the operatioa of the Ticer,sed produceror processor's bro,sir,ess, anad the books / PaPers, records, aa.d propertytb.at pertain specifically, exclusively, ar.d rtirectly to that busiloess;antd
(b) Eajoiniag the Ticeased producez or p.zocessoz from interferinqwith the departuent of agricalture in the disc'haz.ge of its duties as
;required by this chapter.(3) AJ-I r.ec'essary costs and e2qPenses/ iaclu,l;nq attozaeys' fees,
iacu:lrred by the deparfuent of agricultrtre ia carzariag out tbeprovisions of tbis section may be rec,overed at the saae tifre a.ad as
part of tbe action fiTed ua,der tbis sectioa.(4) Tbe deparfueat of agziculture may request the Wasbiagtoa state
patrol to assist it in eaforciag this sectiora if needed to easure thesafety of its qtJoyrees.*Sec- 670 was wetoed. See message at ead of chapter.
*N II_EECiLION= Sec. 677. (7) A J,ic,ensed producer may D'ot se77 ordeliver carrnabis to arry 5leasor. otbez Lnam a c,arraabis .naJrysis
Iaboratory, Ticeased proc,essor of cant:,abis prod'o.cts, Tic,eased
dispenser, or Law eoforcearelt officer exc,ept as provided by courtorder. A Ticensed produ.cez aay also seJ,l or deliwer c,antaabis to tb.e
university of Washingtoa or Washiag;ton State uaiversity fot researchplr:ry)oses/ as identif,ied ia section 7002 of this act. Violation of tbissection is a c.J,ass C feTonyp,nishabJ.e accordiag to cbapter 9A.20 RC:$I.
(2) A Ticensed p.noc'es.s,or of calrnabis products may not se77 ordeJ.iver caanabis to erny p,ersola other tbaa a caa.lc,abis aaalysjsIaboratory, Ticeased dispeaser, or 7aw enforcaeat officer except asprovj,ded by court order. A J-icensed processor of cannabis prodttcts may
also selT oz deliwer cantaabis to the tlaiwersity of Wasb.ingtoa oz
Wasbingtoa State tlniversity for -researeh pra4)oses ,. as ideatified iasectioa 7002 of tbi.s act. Violatioa of th.is sectioa is a cJ'ass C
feLoay pua.ish.abJe according to chapter 9A.20 RC I.*Sec- 677 was weXoed. See Jaessage at ead of cbapter.
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PART VII.LICENSED DISPENSERS
*IIEW SECTION. Sec.7O7. A persoa may not act as a Tic,easeddispenser without a J-ic,er,se for each pJ,ace of bu,siaes.s issued by tbedeparfueat of &.ealth and promineatly displayed oD the pre'ni ses.Provided th.ey are actiag ia cqtliaoce with the telr:a.s of tbis cbapterand ruJ.es adopted to enforce and carLal oat its plaz;roses, Ticer,seddispeasers ar.d th.eir enE Toyees , melabers , off icets, aad rli rectors m.ay
deliver, distribute, di sp,ense, traasfer, PrePare, package, retrtackz9e,7abe7, reJ,abeT, seJ,J at retaiT, oz possess cannabis intended formerlical use by qaalifyiag patieats, iacla.t;ag seeds, seedJ,i,ags,
cuttiags, pJ.ants, useable cannabis, and cannabis produ.cts, ar.d may lcotbe arrested, searc.hed, proseclated, oE subject to otb.er critLaalsaactions or eiviT consequences under state Law, or have reaL ozpersoaal property searched, seized, or forfeited pursuaat to state law,for suc.b activities, notwithstandiagl. etny other provisioa of Law.*Sec. 707 was vetoed. See Eesaage at ead of cbapter.
*IIEW_SECTION . Sec. 702 . ( 7) By January 7 , 2073 , taki'r.g iatoconsideration the security requireraents desc.ribed ia 27 C.E.R. 7307.77-7307.76, tbe secretaza, of healtb shaJ,l adopt ntles:
(a) EstabJ-isb.iag requireraeats for the Ticer,szu.re of dispea,sers ofeannabis for merlic,al use, setting forth proc'edures to obtain J,ic'eases,and detemiaiag ez<piratioa d.ates and renewal zeqrtireumelrts;
(b) Providiaq for aandatory ia,spection of Ticeased dispeosezs'Tocatioas;
(b) EstabJ-ishir,g c,aaa,abis TabeJ-ing requirem.eats, to ir.cludeinfomatioa oa wbeth,er tbe c,aaaabis was growa usiaig ozgaaic, iaorgaaic,or syrlctbetic fertiLizets;
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(i) Establishiag pbysical standards for caanabis dispeasiagfaciJ.ities. The physical staadards mtst require a Tieea,sed dispeaserto easlure tbat ao caanabis or c,aaa.abis pazapheraal,j,a may be wiewed fromoutside the faciTity;
(j) Establishing maxituzfr. amon4ts of canenabis aa.d caanabis productstbat a,ay be kept at one time at a disper,sary. In detemiaiagi zaaxfuntm
az,oua.ts, the secretazar mtst c'oasider tbe security of the distr>easarar aad
(7) EstabJ,isb.iag pbysical and sanitatioa standa.rds for c,aar,abisdispensiag equipment;
(m) Establishiag a na,xi-ml7m antrr,ber of J.icensed di sp>ensers that may
be Ticeased in each couaty as prowided in this sectioa;(a) Enfozciag and carzyiag out the provisioas of this sectioa aa'd
the nt1es adopted to carry out its p:azgroses; aad(o) Establishing Ticense agtpJ-icatioa and reaewal fees for tbe
Ticelasure of disF>ensers in accordaace with RC't{ 43.70.250.(2) (a) fu.e secreta4r shaJ,T estabJ,ish a maxinlrn auaber of Ticer,sed
disP,elasers tb,at may oPerate ia eacb. cotznty. Prior to rTaaua4t 7, 2076,the ma.xiantm ztt,m'hett of Tic,eased ,t; sE>ensers sba77 be based upoa a ratioof oa,e f-icer,sed dispenser foz evezAr twenty tb.ousaad P,ersoas ia a
couaty. Oa or after Jaauary 7, 2076, the secretarymay adopt ruJes toadjust the nethod of calculating the maxinn aumber of ,li sptea,sers toco:a,sider additional factors, such as the rr,,m'hett of earoTTees ia theregistry established ia sectioa 907 of this act ar'd the secretazy'sez<perieace ia 2dmiaisf,eriag th.e progrEm. The secretary may r.ot issuemoz:e J.iceases tban the fraxifrim ntzmber of Ticeases established ua.dertb.is sectioa.
(b) Ia. tb'e eveat that th.e mtmber of appJ,ieaa.ts qualifyiag for tbeselection p.roc.ess exceeds tbe maxif,r:om anloaber for a couaty, thesecretary sba77 initiate a rar.dom selection p.roc'es.s estabJ.ish.ed by tb.e
see;retary ia nzLe.(c) To qualify for...-,tb? . seJectioa p.roc.ess, ztn appJ,ic.aat must
degonstrate to tbe secretazar that he or she areets ia.itial screeair'gcriteria tb.at represeat th.e ag>pTicaat's capacity to operate incoryTiaace witb t}.is chapter. Initial screeaiag; critetia sbalTirl.elude, brat a.ot $a l;nif,ed to:
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(i) Succ,essful coryTetion of a backgrcound check;(ii) A pJ,ala to systamaticalTy verify qaalifyiag patieat aad
desigaated provider statas of cJ.ieats;(iii) Ewideoc.e of coryliance with fuaetioaal staadards, sucb as
veatiTation aa,d security requiraeats; and(iv) Evidence of coryJ,iance with faciLity staadards, sach as zoaiag
coryTiaace and not using th.e facility as a residelc,ce.(d) Th.e secretary shaJ,l establish a sc'hedla,J.e to:(i) tfi>date the maxianzm aTTowable auraber of Ticeased disp,ea,sers ia
each county; and(ii) fssue approvals to otrterate witbin a county accor.l;Dg to tbe
random selectioa p.rocess.(3) fees colTected under this sectioa raust be deposited iato tb.e
hea1th profiessions acc,ount c.reated ia RCW 43.70.320.(4) During tb.e ntle-makiag p.roc,ess, tbe deparfueat of bealth sb.a77
coasult with stakehoJ,ders aa.d p.ersor,s witb. reJewant ezctr>ertise, toi:a'clude but not be lim+ f,6fl to qualifyiagr patieats, desigaatedproviders, health care professioaals , state aa.d Tocal Law eaforcelaeztageacies, aa.d tbe deparfueat of ag:ricultuze.*Sec. 702 was wetoed. .see ltessagre at eE'd of cbapter.
*II 9[_flEC:!ION- Sec. 703. A Ticensed disper,sez may r,ot se77 caaaabiszeceiwed from any persoa otb.er thaa a Ticeased producer oE Ticea,sedp.roc,essor of cannabis produets, or se77 or deLiver c.nnabis to aaypersoa other than a qualifyiag patieztt, desigaated provider, oz Law
eaforcelrae-nt officer except as provj,ded by court order. A Tic,eased,li str2ele,ser may aJ.,so se77 or deliwer c.anz,abis to th.e Uaiwersity ofWasb.ingtoa or Washilo.gton State Uaiversity for zesearc'h pu4roses, asidentified in section 7002 of this act. Before seTTiag or providiagcaanabis to a qu.alifyiag patielet or desigmated prowider, the Ticerseddi qPenser must coafim that the patient qualifies for tbe merli ca1 aseof c,aaa.abis by contacting, at J,east ozace in a oae-year period, thatpatieatts b.ealth care professioraT. Violatioa of tbj,s sectioa is a
class C feloay punishabJ,e ac,cordiag to cbapter 9A.20 RCl{.*Sec. 703 was vetoed. ,See aessage at ead of chaptex.
*IIEW_SECEION. Sec. 704. A Tic,ense to operate a.s a Tieeaseddispeaser is aot traa.sferrable.*Sec. 704 ras rzetoed. See Eessagre at end of cb.apter.
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*NEE__&QT:[ON._ Sec. 705. The secretazar of bealth sball riot isstae ozrenew a Ticense to aa applicaat or J,ieel:.sed dispeaser Toeated withiaf ive h.,ndred feet of a cowtnity ceater, chiTd care center, elaeataryoz sec,ol:,d,ary sch,ooL, or aaother Ticeased dispeasez.*Sec. 705 was wetoed. See fressaqe at ead of chaptex.
PART VIIIMISCELI.A}IEOUS PROVISIONS APPLYING TO ATL
LICENSED PRODUCERS, PROCESSORS, AIiID DISPENSERS
*NEE_SECiIION._ Sec. 807. AJ-l reighiag an6 measrarir.g iastnnelots aaddevices used by Ticelesed producers, processors of c,aanabis produets,aad dispen.sers shaJ.l eoryLy witb the reqtzireraeats set fortb ia c.bapter79.94 RC'W.*Sec. 807 was vetoed. .See lre.saage at end of c,},apte!.
*ITEhI SECTION
associatioa, or ageacyr may advertise canrabis for sale to tbe geaeralpublic ia any mana.er that promotes oE tends to promote the tuse or abuseof eannabis. For tbe puq)oses of tbis sttbsectioa, distr>layiag canoaabis,includiag artistic depictioas of cannabis, is eol:,sidered to pzoaaote orto tend to proaote tb.e ro,se or abuse of cana.abis.
(2) The depart,zn,eat of ag:ricultare aay fj.ae a Ticeased producer orp.roc,essor of caaaabis products tzp to oae thousanl'd doJ.J,ars for eachviolatioa of subsectioa (7) of tiais sectioa. Eines coTLected ua,dertbis subsectioa zrtst be deposited iato tbe agricaLtare Tocal fifidcreated in RChl 43.23.230.
(3) The departuent of health. aay fir.e a Ticer,sed dispeaser lulE, toorte thousaa'd dolTars for each violatioa of subsectioa (7) of thissectioa. Eir,es collected a''der tb'i,s sttbsectioa mtst be deposited iatothe bea1th professions ac,couat created ia RCll 43.70.320.
(4) ![o broadcast telewisioa J,ic,ea,see, rartie bzoadcast J,iceasee,:aewqpaper, aagazine, advertising ageDCy, oE ageacy or mediua foz tbedi ssanniaation of efi, advertiseyaaea.t, except the Tieer,sed producer,pnocessor of canzaabis products, or .tistr>enser to whicb. tb.e advertiseuaeatreJ.,aXes, is sttbject to the perral-ties of f,his sectioa by reasir_ ofdi esami aation of adverti,siag ia good f aith without knowleSe that thea&ertising promotes or tends to proraote tb.e tu,se or abuse of caaa,abis.*Sec. 802 ras yetoed. See aessage at ead of ebapter.
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*NBE__SECiI:[AN._ Sec. 803. (7) A prior coavictioa for a caaaabis ornarijuaaa offense shal-L r,ot rli squalify aa applicaat from receiwiag a1-icense to produc,e/ p.roc,ess/ or disp,er,se c,azza,abis for med;cal ttse,prowided the coavictioa did not ia.clla,de aDy seatencing enh.aac,euaeots
urtder Rql 9 . 94A. 533 or aaaTogous Taws in otber jurisdictioas. Aaycriainal coavictioa of a cuneat Ticensee may be coasidered iaproceerlir,gs to suspead or rewoke a Ticer:se.
(2) Nothiag in thi,s sectioa prohibits either tbe departueat ofhealtb. oz the depart-r,ent of agzicultlate , as ap,pzopziate, from deayiag,saspendi:l,g, or revoking the eredeatial of a Tic,ease hoJ,der for otherdrug-zeJ':ted. offenses oE arry other crimiaal offeases.
(3) Nothiag ia this section prohibits a correctiolrs agenqr oE
deparfuerrt from considering aL7 prior and. clrrrreat cor.victiorc iadetemining wh.ether the possessioa,, manufacture, or delivezar of , or forpos.session witb. j'ntent to manufacture or deliver, is ia.cor,sj,steat withand coatzary to th'e persoa's supervisioa.*Sec. 803 was vetoed. See .Eessagre at e,.d of ct'atr)tez.
*WE__SEC:I:ION._ Sec. 804. A wiolatioa of aay provision or sectioa ofthis chapter that reJ,ates to the Ticensiag aad regzlation of prodtzcers,processots, or ,lisp,elasets, wbere ao other peaalty is provided for, aa,d
tbe wiolatioa of zray ntle adopted uader this chapter cor:stitutes ari sd4ean2f .
*Sec. 8O4 was weLoed. .See llessagre aX ead of cb.aytXet.
*NEW__SECTION._ Sec. 805. (7) Every Ticea,sed produc,ez oz p.rocessozof cazt:e,abis products who faiTs to corytly witb tbis chapter, or aay nileadotr>ted,,ndez it, aay be subjected to a civiT peaalty, ds detelr:rair'edbyt/ae di rector, in an amouat of not more thaa one tbousaad doTTazs forevery such viol-atioa. Each violation sb.a77 be a separate aad distiaetoffense.
(2) Every Ticensed dispteaser who fail-s to coryly with tb.is c.bapter,oE any rule adopted ua.der it, may be subjected to a civil peaaLtyr dsdetel:ained by the secretazy, in aa amouat of not more thaa oa.e thoasaa.ddollars for ewery such violatioa. Each wioLatioa sba77 be a separateand di stirtct offea,se. : :i:l:':- :
(3) Evety person who, throagh aa act of c,o'arrnissioa or orarissioa,p.l:ocr::res, aids, or abets ia the violation sh.all- be cor,sidered to bave
vioJ.ated tltis c,haptez ar,d aay be subject to the peralty provi&d for iathis section.*Sec. 805 ras vetoed. see Eessage at ad of chapter.
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*W_SECTION. Sec. 80 6 . fue deparfuent of agzicultare oz tbedepartraelot of healtb., as the case may be, antst inmediately stastrtead aaycertification of Ticensu.re j'ssued uader this chapter if the hoJ,der ofthe certificate has been certified under RCW 74.20A.320 by thedeparfuelat of social an:.d health serrrices as a p,ersoa wbo is r.ot incoryLiaace with a sqport order. If the p,ersoa bas coatiaued to raeeta77 other requira,aents for certification duriag the sro,strter,sioa,
reissrl,aac'e of the certificate of f-ic,easlxre sbal.l be autoaatic rapon tbedeparfueat's receipt of a reJ'ease issued by the departmelct of sociaLand health serwices statiag tb.at the person is ia coryTiaace with theorder.*Sec. 806 was weXoed. .9ee eessagre at er'd of c},apter.
*NEW_SECTION. Sec. 807. The departuent of agriculture or tbedeparfueat of health, as the c,ase nay be, mtst suspead tbecertification of Ticensure of aay p,ersoa who bas been certified by a
Tearti agr agency aa.d reported to the appropriate deparfueat foz:a,o:arp.ay.ment or defaalt on a federaTl-y or state-gzo,araateed edru,catior,alToaa or serwice-cortriitional scholarshie. Prior to tbe sastrtension, tbedepartmeat of agriealtttre or tbe deparfueat of health, as the case may
be, must prowide the persola an ogporturtity for a brief adjurl; cativeproceerting urtder R67f 34.05.485 tb.rougb. 34.05.494 and issue a findia.g ofla,olap.ayrraellt or defaalt on a federaTTy oz state-giuaraateed edro,catioaalloaa or service-coaditional scholarship. Th.e persora's Tic'elase may z.otbe reissued untiL the p,ersoa provides t}.e atrtpropriate deparfuelat awritten reJ'ease issued by the Ter.dir.g ageacyr stating th.at tbe persoa ismaking payments ozt the Toan in accordaace wiXb a zepaymeat agreaelatapproved by the Teading ageDcy. If the persor: has coatioued to meeta77 other requirelr,eats for certif icatioa or registratioa dtzriag thesuspension, reiiastatelaeat is aatomatic ttp ot receipt of the rotice aadpaymeaX of aay reinsXatelment fee.*Sec. 807 was vetoed. See .Eressagre at end of chapter.
PART IXOF QUATIFYING PATIENTS,
PRODUCERS, PROCESSORS,
SECURE REGISTRATION
A}ID LICENSED
DESTG}IATED PROVIDERS,
A}ID DISPENSERS
*$IHE_SECTION.,_ Sec. 907. (7) By ilaauary 7/ 2073, the departueat ofhealtl: sha77, in c,or,sultation with tbe deparfueat of agrieulture, adogtt
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rl:1es for the creation, iryLeae-ntation, maintenan,ce ,upgradiag of a sect re and cor'fideatial- registratioa systa.
aad tiaelythat allows:b.ea1th. c,are(a) A peace officer to verify at aay tifre whether a
professional has regi,stered a P.ersore as either a qualifyriag patient ora desig;a,ated provider; and
(b) A p,eac,e officer to verify at aay tiaae wheth.er a persoa,Tocatioar ot business is J,icer.sed by the departnaeat of agricultuie oE
the deparfuent of health as a Ticensed producer, Ticeased procerssor ofcaaa.abis products , or J.ic'ensed distr>easez.
(2) Tbe deparfueat of agricalture rnust, izr colc,sro.ltation with. thedeparfuent of bealth., e,reate anc.d raaintaia a secuze and coafideatialTist of persoas to wh.om it h,as issued a J,icea,se to produce cannabis formerii cal use or a Tieense to tr:.roc'ess c.nnabis products, and tb.e physicaladdresses of the lic,er,seest production and processia.g: faeiTities. Th.e
J-ist must meet tbe reqtzireraeats of subsection (9) of tb,is sectioa andbe transmitted to the departuer-t of health to be included ia thereqistry estabJ,j,shed by this sectioa.
(3) The departuent of b.ealth mtst, ia coosaltatioa with. tbedeparfuelet of agricaltrrre / create ar.d raaintaia a secuze aadcoafidential Tist of the petsoas to whom it has issued a J,ieer,se todi sF>ense ca',nabis for aerti cal use tbat raeets the requ.iraeats ofsubseetion (9) of this sectioa ar,d a,ust be included in tbe registrArestab1ished by tbis section.
(4) Before seeking a noravebicle search warraat or arrest warraat,a peace off icer iawestigatiag a car:lo'abis-related inc,ideat lratst ma.ke
reasoaabJe efforts to asc'ertain whetber the location oE person ulo,der
iavestigation is registered in the registratioa systa, aad ia.c.lude th.e
resuIts of this iaqairy in the affidavit sttbraitted ia suP,Port of tb.e
applicatioa for the warraat. This requirae-nt does r,ot apply toinwestigatioas ia whicb. :
(a) Lb.e peace officer has obserwed evideac,e of aa agtparent c,aaaabisoperatioa that is r.ot a J,iceased producer, pzoceasor of caar'abisproducts, or di sp,enser;
,, ..(b) The peace officer b.as
Powet;(c) The peaee officer has
thaa cantra,abis at tbe pTamises;
obsewed evider'ce of theft of , electrical
obsezrred ewidence of iITegaI dntgs other
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(d) The peace officer has obsewed frequeat aad annerousvj-sits over aD. extelo.ded period t}aat are consistent with.activity, if the subject of tbe iavestigation is aotd+ sF>easer;
(e) The p,eace officer b.as observed violeat crime oE otherdem.onstrated dangers to the comtaity;
(f) The peace officer h.as probable cause to beJ.ieve tbe subject oftbe iawestigation has comitted a feTony, or a mi sderaeera.or io theofficer's presenc,e, that does not reJ,ate to caaaabis; oE
(g) Tbe subject of the iavestigatioa has erlo. outstandingi arrestwarraat.
(5) Law eaforcaeat may access the registration systeua. oaly inconnectioa with. a specific, Leqitinate criuLaal iavestigatioa regardia,gcannabi,s.
(6) Registratioa in the systa sba77 be optior.al for qaalifyiagpatients and desiga.ated pzowiders, not maadatory, and registratioas arevalid for one yearl except that qualifying patieats must be able toz:etfrove, thencelves from the registry at any time. For J-ic,ensees,regj'stratioas are vaLid for th.e tem of the Tic,ense and tberegistratioa must be reo'oved if the J,icea,see's Ticense is ez<pired orrevoked. Tb.e deparfueat of bealth mzst adopt ntles prowirti ag forregistration reaewaJ.s and for raoving etq>ired registrations aadezcpired or rewoked Ticeases from the registry.
(7) Fees, iaclad:iag renewal fees, for qu.alifyiag patieats atlddesigmated prowiders participatiag in tbe registratioa systa sba77 bel;mi f,eQ to the c,ost to th.e state of iryTaentiag, aaiataiaiog, ar.denforciag the provisions of this section and the rules adopted to carryout iXs ptaz?oses. The fee sba77 also iaclude any costs for tbedeparfuent of h.ealth. to dies,alrniaate infonation to enp>Toyees of stateand TocaL Law eaforceraeat ager,cies relatiag to wbetbez a pezsoa is a
Tice:c,sed produc,er, p.rocessor of cannabis products, oz .lisptez,ser, orthat a Toeation is the recorded address of a Ticense producer,processor of caanabis prodtzc,ts, or disp;enset, and for the disseniaali6aof Tog rec'ords reJ,atiag to suc.b requests fos . iafomatioa to t.he
subjects of tb.ose reguests. ![o fee fray .be charged to Tocal ]-aw
eaforeeraeat agea.cies for accessiag tb.e registzar.(8) Duriag the nile-aakiag p.rocess, the departueat of health. sha77
colc,sult with stakehoJ.ders and p,ersons with relevaat extrtertise, to
short-telr:mconmercial
a Tic,er,sed
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ira.cIade, but lr.ot be lini le,Q to, qaalifyiag patieots, desigaatedproviders, bealth. c,are professionals, state ar,d local Law enforce;laa,eat
ageacies, and the University of Washiagton coryater scier,c'e andeagiaeeriag secarity aad priwacy, researc.h. Lab.
(9) The registration systa. sha77 laeet tbe foTTowiag requiraeats:(a) Aay persoaaTTy ideatifiabJe infomatioa included ia the
registration systa must be "Donteversibler" pttrsuaat to definitionsand stan:da.rds set forth by th.e ratioaal institrate of staad.a.rds aodtechnology;
(b) Any persoaaTTy ideatif iabZe infomatioa incJtaded ia theregistratioa systa. rmtst lo,ot be suscepti.ble to Tiakage by use of dataexter:aa1 to the registratioa systa.;
(c) The registtation systa nzst iaeotTtorate curreat bestdi ffereatial privacy practices, aTTowing for maxifrtu accaracyr ofzegistratioa systa queries whiLe ainiaiziag the chances of ideatifiriagthe personaTTy identifiable infoma.tioa ilo,claded tberein; anQ
(d) The registratioa systa. mro,st be apgradable ar.d updated ia a
tiaely fasb.ion to keep current with state of the art privacy and
security standa,r.ds and practices.(70) The registration systa shal.T raaiataia a 7og of eac.b
verificatioa glaezy sttbmitted by a peace offieer, iaclurl;ag th,e peac'eofficerts rlan€t agency, ar.d ideatificatioa antaber, for a period of aoIess th.an three years froa the da.te of tbe qaery. PersonaTTyideatifiable iafomatioa of qualifyiag patieats aad desigaatedproviders incJuded ia tb.e log shall be confideatial ar.d exqtt frompttblic r1;scJ-osure, inspectioa, ot copyiag ua'der cbapter 42.56 RCW:
PROVTDED, Th.at:(a) llames aa.d other p,ersorlally identifiabJ-e iafomatioa froa the
Tist may be reJ.eased oaly to:(i) Authorized etFtToyees of the departueat of agriculture aad tbe
departmer:t of health as aecessazal to perfom official duties of eitherdeparfuent; or
(ii) Aathorized anF>Toyees of state oE locaL Law er.forcelmeatagencies, only as aecessaLat: to vezify th.at.the p.ersorl. or TocaLioa is aqualified patieat, desig:nated provider, Tieer,sed prodlo,cer, J-icer,sedprocessor of caanabis pzoducts, or Ticerlsed dispertsez, aod only afterthe inquiriag a,,E>Loyee has provided adequate ideatificatioa.Auth.orized enFtToyees who obtaia personally ideatifiable iafomatioa
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t:e'der this subsectiolr may not relea,se or ta,se the iafomatioa for aaypuryass otber tban werif icatioa that a p,erson or Tocatioa is a
qualified patient, desigz,ated provider, J-ic,er,sed producer, Ticeasedprocessor of caaaabis products, or liceased disyter,ser;
(b) Infomation coatained in t}'e registratioa systa nay be
reJ,eased ia aggzegate fom., w'itb. alL persoaally identifyiag iafomatioaredacted, for the prlaL7,ose of statistical analysis and oversight ofagency perfonance aa.d actioas;
(c) The subject of a registratioa queLar may ap,p,ear dtzriag ordiaazardeparfuent of health bro,si:nes.s hoars aad ir,spect or copy 7og recordsrelating to b.ia or her rryrora adequate proof of ideatity; .ad
(d) The stzbject of a registratioa queLAr may submit a writtearequest to the deparfuent of health., aToag with adequate pzoof ofideatity, for copies of loq rec,ords relatiag to him or hez.
(77) This sectioa does r.ot probibit a depazfueat of agzicttTturee,rr,loyee or a deparfuent of health arg>|oyee froa contacting state ozTocal law enforceneat for assistaace during Ert emezgeacy oz whileperfom,ing his or her duties ur.der this chapter.
(72) Fees eoLlected ur.der th,is seetion must be deposited into tb.e
}.ealth professioas accouat n4det RClt 43.70.320.*Sec. 907 was wetoed. See Eessage at ead of cbapter.
*NWL__SECiE:[ON- Sec. 902. A la,ew sectioa is added to ehapter 42.56RClil to read as folTows:
Records coataiaiag r,etmes ano.d other persoaaTTy ideatifiableiafomation reLating to qualifying patients, designated providers, aadp,ersoas Ticeased as producers or disp?elasers of canaabis for medicalttse, oz as p.roc,essors of caooabis products, uader section 907 of tbisact are exq>t froa. ,1i sc.Josare ur'der tbis ch.apter.*Sec. 902 vas vetoed. see .raessage at ead of cbaptex.
PART X
EVAI,UATION
NEW SECTION. Sec. 1001. (1) By July 1, 2074, the Washington stateinstitute foi public policy shall-, riif,i., available funds, conduct a
cost-benefit evaluation of the implementation of this act and the rul-es
adopted to carry out its purposes.(2) The eval-uation of the implementation of this act and the rufes
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adopted to carry out its purposes shal-l- include, butllmited to, consideration of the fo1lowing factors:
of health and agricul-ture will make availabl-e to theinstitute for public policy requested data, and any
department may consider relevant, from whichidentifiabl-e information has been redacted.
not necessarily be
source of cannabis(a) Qualifying patients' access to an adequatefor medicaf use;
(b) Quatifying patients' access to a safe source of cannabj-s formedical use;
(c) Qualifyj-ng patients' access to a consj-stent source of cannabisfor medical usei
(d) Qualifying patients' access to a secure source of cannabis formedical use;
(e) Qualifying patients' and desj-gnated providers' contact with l-aw
enforcement and involvement in the criminal justice system;(f ) Diversion of cannabj-s intended for medical use to nonmedica.l-
USCS;
(g) Incidents of home invasion burglaries, robberies, and otherviol-ent and property crimes associated with qualif ying pati-entsaccessing cannabis for medical use;
(h) Whether there are health care professionals who make a
disproportionately high amount of authorizations in comparj-son to thehea1th care professi-onaf community at large;
(i) Whether there are indications of health care professional-s inviolation of RCW 69.51A.030; and
(j ) Whether the heal-th care professionals making authorizationsreside in this state or out of this state.
(3) Eor purposes of faci1itating this evaluation, the departmentsWashington state
other data eitherall- personally
NEW SECTION. Sec. LOO2
RCW to read as follows:A new section 1s added to chapter 288.20
The University of Washington and Washington State University may
conduct scientific research on the--efficacy and safety of administeringcannabis as part of medical- treatment. As part of this research, theUniversj-ty of Washington and Washington State University may developand conduct studies to ascertaln the general medical safety and
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efficacy ofappropriate
cannabis and
administration
NEW SECTION. Sec. 1101. (1) No civi.l- or criminal liability may be
imposed by any court on the state or its officers and empJ-oyees foractions taken in good faith under t.his chapter and within the scope oftheir assigned duties.
(2) No civil- or criminal liability may be imposed by any court on
cities, towns, and counties or other municipal-itles and their officersand employees for actions taken 1n good faith under this chapter and
within the scope of their assigned duties.
NEW-SECTION. Sec. LLO2. (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 theirjurisdiction: Zoning requirements, business licensing requi-rements,health and safety requirements, and business taxes. Nothing in thisact is intended to limit the authority of cities and towns to impose
zoning requj-rements or other conditj-ons upon licensed dispensers, so
long as such requirements do not preclude the possibility of sitingl-icensed dj-spensers within the jurisdictj-on. If the jurisdiction has
no commercial- zones, the jurlsdiction is not required to adopt zoni-ng
to accommodate l-icensed dispensers.(2) Counties may adopt and enforce any of the fol-l-owing pertaining
to the productj-on, processing, or dispensing of cannabis or cannabisproducts within their jurisdiction in l-ocations outside of thecorporate limits of any city or town: Zoning requirements, businesslicensing requirements, and heal-th and safety requirements. Nothing inthis act is intended to limit the authority of counties to impose
zoning requirements or other conditions upon licensed dispensers, so
long as such requj-rements do=-n.o! preclude the possibility of sitinglicensed dispensers within the jurisdiction. If the jurisdiction has
no commercial- zones, the jurisdiction is not required to adopt zoningto accommodate l-icensed dispensers.
may develop medlcaland use of cannabis.
PART XICONSTRUCTION
guidelines for the
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NEW_SECTION. Sec. 1103. If any provision of this act or theapplication thereof to any person or circumstance is held invalid, theinval-idity does not affect other provislons or applications of the actthat can be glven effect without the invalid provision or application,and to this end the provisions of this act are severable.
*II trI_SECiE:EON- Sec. 7704. Ia the event that tbe federal gowermeotauthoz,izes the use of c.aar,abis for medi cal tr:rlo.z?oses, with.in a yeat ofsuch actioa, th.e joiat legislative a:o.dit anad review comlttee sbal.lcorriduct a progEerm ar,d fiscal review of the c,annabis productioa aad
dispensiag pzograrns estabJ'ished in thj-s c,hapter. The review sba77
consider wb.ether a ,tistinct caaa.abi,s productioa azd distrlea,siag systaconti:aues to be rrecessary when c,oasidered ia Tight of tb.e federalaetion and make zercoz@er,datior,s to th.e LegisJ'atrr:te.*Sec. 7104 vas vetoed. see laessage ax ea.d of cbapter,
NEW_SECTION. Sec. 1105. (1) (a) The arrest and prosecutionprotections established in section 401 of this act may not be assertedin a supervision revocation or viol-ation hearing by a person who issupervised by a corrections agency or department, including localgovernments or jails, that has determined that the terms of thissection are inconsistent with and contrary to his or her supervision.
(b) The affirmative defenses established in sections 402, 405, 406,
and 407 of this act may not be asserted j-n a supervision revocation orviolation hearing by a person who is supervised by a corrections agency
or department, i-ncluding l-ocal governments or j ails, that has
determined that the terms of this section are inconsistent with and
contrary to his or her supervision.(2) The provisions of RCW 69.51A.040 and sections 403 and 473 of
this act do not apply to a person who is supervised for a criminal-conviction by a corrections agency or department, including local-governments or jails, that has determined that the terms of thischapter are inconsistent with and contrary to his or her supervision.
(3) A person may not be licensed as a licensed producer, lj-censedprocessor of cannabis products, ,or a licensed dispenser under section601, 602, or 701 of this act if he or she is supervised for a criminalconvictj-on by a corrections agency or department, including localgovernments or jai1s, that has determined that licensure isinconsistent with and contrary to his or her supervision.
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Sec.read as
Thisuse of (
1106. RCW 69.51A.900 and 1999 c
follows:chapter may be known and cited as
(ra.a*i-}ttaaa) ) cannabis act.
2 s 1 are each amended to
the Washington state medlcal
PART XIIMISCELI,A}IEOUS
*II I[.EECi$ON._ Sec. 7207. (7) TIrc JegisJ.ature recogaizes th.at tb.ereare canlaabis producers ar.d canr,abis ,lispensaries ia operation as of tbeeffective date of this section that aze unreg:uJ.ated by the state aadwho prodtzce aad di sp,ense c,annabis for merli caL use by qaalifyiagpatieats. The J.egisZ,ature iater,ds tbat these prodlacers and,lisF,e:a,saries bec,ome Tic,ensed in accordaace with the requiraents oftb.is chapter .nd that thj,s Ticeasiag provides theuaa witb. arrestprotectioa so long as tbey reuraa.in in coryTiaaee witb. tb.e requ,ireoaeatsof this ehapter alo,d the ntJ.es adopted under th.is chapter. iEhe
TegisJ.ature further recogaizes that caanabis producers aad caaa,abisdi qPeasaries in carrent operatioa are r.ot abJ.e to becorae Ticer,sed uatiTthe departueat of agricul-tare ar'd tb.e departueat of healtb adopt ntJesa;e'd, consequ.ently, it is Tikely they wi77 re;raaj'a ro.nJ-iceosed uatiT atJ.east Jaauary 7, 2073. These pr.oducers ond .li sp.ea,sary o'wzters anad
operators :rua the risk of ar,rest betweea the effective date of th.issection and the tirae they beeome Ticensed. fuerefore, the TegisJatareiateads to provide thera with aa affimative defense if they meet tberequiraeats of tbis sectior:.
(2) If cbarged with a violation of state Law relatiag to caaaabis,a producer of cananabis or a ,lisp,ea,sary aad its o'nr:ers aad opezatorsthat are engaged in t}l.e production or dispensingi of c,aan:,abis to aqual-ifyiag patient or who assists a qzalifyiag patieat ia tb.e medicaluse of caanabis is deeutr,ed to have estabJ-j,sh.ed an affima.tive defe!,se tosach charges by proof of coryTiance with this sectioa.
(3) Ia order to assert aa affimative defease lander this sectioa,a caaaabis produ.cez o_r, -c..qra4abis ,lisP.ensazar zntst:
(a) Ia the case of pzoduc,ers / solely provide cannabis to caanabisdisF,easaries foz tiae medieal use of c,antnabi,s by qualifiedpatieats;
(b) Ia th.e case of .l; sp,ensaries, solely provide cannabis toqtal.ified patieats for their medical rase;
p. 39 E2SSB 5073. SL
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(c) Be registered with the secretary of state as of l,tay 7, 2077;(d) EiTe a Tetter of inteat with. the departuent of agricalture or
tbe departueat of heaLth., as the c,ase may be, asserting tbat tb.e
producer oz ,1i sp,er,ser iatea.ds to becorae J.icensed in accordance witbthis chapter aad ruLes adopted by tbe appropriate deparfueat; aad
(e) fiTe a Tetter of iatent with the city clerk if in ent
iacozTtorated area or to the county clezk if in aa unir,eozT>orated areastating they operate as a prodlo.cer oE di spensaza, and th.at tb.ey corylywith the provisiors of tb.is chapter ar.d wi77 coryly with stzbsequentdeparfueat ntle making.
(4) tlpon receiving a Tetter of inteat under subsection (3) of thissectioa, the depatfueat of agricaltare, the departmeat of health, aad
the city clerk or cotznty cJ.ezk mla,st send a Letter of ackaowledgneat totbe producer or dispenser. I.he producer and di sp,enser must dristr:.7ay
th.is Tetter of ackrowJ'edgzent ia a promiaent pJ,ace in their faciTity.(5) Letters of iateat fiTed witb. a public agencyr, Tetters of
acknowJ.edgaeat seat from tbose agenc.ies, and otber materials reJatedto such Ietters are exq>t from public discTosure lar,der cbapter 42.56RCIr .
(6) This sectioa ez<trtires try)on tiae estabJ.ishraeat of the TiceasiagprogEafr.s of the deparfueat of agricul-tare and the departlaent of healtband the c,orenceraeat of the issuar.c,e of l-icease.s foz dispeasers .ndproducers as prowided in this chapter. fu.e deparfuent of b'ealth aa.d
the departuent of agriculture shal-J aotify the code reviser wbeo tbeestabLishmenX of the l-icelosir,g prog;rams b.as occarred.*Sec. 7207 ras vetoed. see Eessagre at eD.d of c.l'apter.
*W__SECEION.- Sec. 7202. A r'ew sectioa is added to chapter 42.56R€nI to read as foTTows:
The foTTowiag iafomatioa reJ,ated to canaabis pzoduc,ers aad
eanaabis .rispeasers are exqtt from ,li scJosare under tbis sectioa:(7) Letters of iatent fiLed with a public agency uader sectioa 7207
of t}.is act;(2) Letters of ackaowledgeraeaX seat froa a pubZic ageacy. ua.der
sectioa 7207 of this act;(3) I"IateriaJ-s reJated to Tetters of intent and acknowJ.edgeloeat
ua,der sectioa 7207 of th.is act.*Sec. 7202 ras vetoed. see .Eessage at ead of chapter.
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|gE--sr,CEION.- Sec. 7203. (7) (a) Oa ituLy 7, 2075, the departuelct ofbeaItb shall report tbe foJ-Towiag iafomation to tbe state treasurer:
(i) The expelrrditares from tbe bealtb professioas account reJ,ated Xo
t},e artmi nistration of chapter 69 . sLA RAf betweera tbe effective date oft}.is sectioa ar'd ilur.e 30, 2075; and
(ii) The amouats deposited iato tbe health professioas accouatunder sectioas 702, 902, aad 907 of this act between the effective dateof tbis section ar,d Jtzae 30, 2075.
(b) If the azrount ia (a) (i) of this subseetioa exceeds tb.e amouat
in (a) (ii) of tbis stzbsectioa, the state treasurer sha77 traa,sfer aa
amouat equal to the ,li f,f.erer.c,e froa the geaeral find to tbe healthprofessjons ac,c'ottot.
(2) (a) AnnaaLLy, beginniag ilaly 7, 2076, the departueat of bealthsbaJ-l- rep>ort the foTTowiag iafomatioa to tbe state treasurer:
(i) Tbe ez<tr>el:ditures froa the heaJ-tb. professioas ac,couat reJ,ated tof,fua Trhninistratioa of chaptez 69.57A R(JI for the prece.ling fiscal year;aad
(ii) Tb.e alaouats deposited into the healtb professions accouatunder sectioas 702, 802, and 907 of tb.is act duriag tbe precedir'gfiscal year.
(b) If tb.e amouat ia (a) (i) of t/ais subsectioa exc'eeds the asouztia (a) (ii) of tttis sttbsectiora, the state treasro'r.ez sbal'l traasfer aa
a:aourtt equal to the di ffereaee froa the ger'eral fizad to tbe healthprofessions account.*Sec. 7203 was vetoed. see Eessage ax end of cbapter.
NEW SECTION. Sec. L2O4. RCW 59.51A.080 (Adoption of rules by thedepartment of health--Sixty-day supply for qualifying patients) and
2007 c 371 s B are each repealed.
NEW-SECTION. Sec.1205. Sections 402 through 41]. , 4L3,501through 61-L, 101 through 705, 801 through 801, 901, 1001, 1101 through1105, and l20L of this act are each added to chapter 69.51A RCW.
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*$ II_SE6iArgiN._,Sec. 7206.
ilanuary 7, 2073.*Sec. 7206 was wetoed. See .aessagre at ad of cbapxet.
Passed by the Senate April 21, 2011.Passed by the House April 11, 20LL.Approved by the Governor April 29,
certain items that were vetoed.Fil-ed in Office of Secretary of State
Sectioo 7002 of this act takee, effect
207L, with the
April 29, 201L.
exception of
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Note: Governor's explanation of partial veto is as fol-Iows:"I am returning herewith, without my approval as to Sections 101, 20L,401 , 410, 471, 472, 60L, 602, 603, 604, 605, 606, 601 , 608, 609, 670,6t!, 101, '702, 103, 104, '705, 801, 802, 803, 804, 805, 806, 801 , 90L,902, LL04, L201, L202, 7203 and L206, Engrossed Second SubstituteSenate Bill 5073 entitl-ed:
"AN ACT Relating to medical use of cannabis."In 1998, Washington voters made the compassionate choi-ce to remove thefear of state criminal prosecutJ-on for patients who use medical-marijuana for debilitating or terminal conditions. The voters alsoprovided patients' physicians and caregivers with defenses to state1aw prosecut j-ons.
I fu1ly support the purpose of Initiative 692, and in 2001 , I signedlegislation that expanded the ability of a patient to receiveassistance from a designated provider 1n the medical- use of marijuana,and added conditions and diseases for which medical- marijuana coul-d beused.Today, I have signed sections of Engrossed Second Substitute SenateBilI 5073 that retain the provJ-sions of Initiative 692 and provideadditional state l-aw protections. Qualifying patients or theirdesignated providers may qrow cannabis for the patient's use orparticipate in a collective garden without fear of state l-aw criminalprosecutions. Qual-ifying patients or their des j-gnated provj-ders arealso protected from certaln state civil law consequences.Our state legislature may remove state criminal and civil- penaltiesfor activities that assist persons suffering from debll-itating orterminal condltions. Whj-le such activities may violate the federalControll-ed Substances Act, states are not required to enforce federallaw or prosecute people for engaging in activities prohibited byfederal- law. However, absent congressional action, state l-aws will notprotect an individual- from Iegal action by the federal government.
Qualifying patients and deslgnated providers can evaluate thefedera1 prosecution and make choj-ces for themsel-ves on whetheror assist another in using medical marj-juana. The UnitedDepartment of Justice has made the wise decision not to useresources to prosecute seriously iIt patients who usemarij uana.However, the sections in Part VI, Part VIf, and Part VIII of EngrossedSecond Substitute Senate BilI 5073 would direct employees of the statedepartments of Heal-th and Agriculture to authorize and 1j-censecommercial businesses that produce, process or dispense cannabis.These sections would open pubtic employees to federal prosecution, andthe United States Attorneys have made it cl-ear that state Iaw wouldnot provide these indlviduals safe harbor from federal- prosecution.No state employee should be required to violate federal criminal- 1awin order to fuIfiII duties under state faw. For these reasons, I havevet.oed Sect'ions 501, 602, 603, 604, 605, 606, 607 , 608, 609, '610, ' 611,10r, 102, 703, 704,'705, 801, 802, 803, 804, 805, 806 and 807 ofEngrossed Second Substitute Senate Bill 5073.
In addition, there are aSubstitute Senate Bill 5073these licensing sections.terms. Section 4L2 addsprocessors and dispensers.Health to develop a secure
E2SSB 5073. SL
risk ofto useStates
federalmedical
number of sections of Engrossed Secondthat are associated with or dependent uponSection 201 sets forth definitions ofprotections for Iicensed producers,
Section 901 requires the Department ofregistration system for licensed producers,
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processors and dispensers. Section 1104 would require a review of thenecessity of the cannabis production and dispensing system if thefederal government were to authorize the use of cannabj-s for medicalpurposes. Section L207 applies to di-spensaries in current operationin the i-nterim before licensure, and Section 1,202 exempts documentsfiled under Section l20l from disclosure. Section L203 requires thedepartment of health to report certain information rel-ated toimplementation of the vetoed sections. Because I have vetoed thel-icensing provisions, I have also vetoed Sections 207, 472, 90L, 1!04,1201, L202 and L203 of Engrossed Second Substitute Senate Bill- 5073.
Section 410 woul-d require owners of housing to al-low the use ofmedical cannabj-s on their property, putting them in potential conflictwith federal law. For this reason, I have vetoed Section 4L0 ofEngrossed Second Substitute Senate Bill 5073.Section 401 woul-d permi-t a nonresident to engage in the medical use ofcannabis using documentation or authorization issued under otherstate or territorial laws. This section would not require these otherstate or territorial faws to meet the same standards for health careprofessional- authorization as required by Washington law. For thisreason, I have vetoed Section 401 of Engrossed Second SubstituteSenate BiIl 5073.Section 471, would provi-de that a court may permit the medical- use ofcannabis by an offender, and exclude it as a ground for finding thatthe offender has violated the conditions or requirements of thesentence, deferred prosecution, stipulated order of continuance,deferred disposi-tion or dispositional- order. The correction agencyor department responsible for the person's supervision is in the bestposition to evaluate an individual's circumstances and medical- use ofcannabis. For this reason, I have vetoed Section AL1- of EngrossedSecond Substitute Senate BiIl 5073.f am approving Secti-on I002, which authorizes studies and medlcal-guidelines on the appropriate administratj-on and use of cannabis.Sectj-on L206 would make Sectj-on L002 effective January t, 2013. Ihave vetoed Section L206 to provide the discretion to begin efforts atan earlier date.Section 7102 sets forth l-ocal governments' authority pertaining to theproduction, processing or dispensing of cannabis or cannabj-s productswithin their jurisdictions. The provisions in Section LL02 thatlocal- governments' zoning requirements cannot "preclude thepossibility of siting licensed dispensers within the jurisdiction"are without meanj-ng in light of the vetoes of sections providing forsuch licensed dispensers.approve Section 1102.
It is with this understanding that I
f have been open, and remain open, to legislation to exempt qualifyingpatients and their desi-gnated providers from state criminal penaltieswhen they join in nonprofit cooperative organizations to shareresponsibility for producing, processlng and dispensing cannabls formedl'c'al use. Such exemption f rom state crimina1 perlaLt'ies , should beconditioned on compli-ance with l-ocal- government l-ocation and healthand safety specif icat j-ons.
I am al-so open to legislation that establ-ishes a secure andconfidential- registratlon system to provide arrest and seizureprotections under state l-aw to qualifying patients and those whoassist them. Unfortunately, the provisions of Section 901 that wouldprovide a registry f or qualifying pat j-ents and designated provi-dersbeginning in January 20!3 are intertwined with requirements for
p AA=J
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registration of l-icensed commercial producers, processors anddispensers of cannabls. Consequently, I have vetoed section 901 asnoted above. Section 101 sets forth the purpose of the registry, andSectj-on 902 is contingent on the registry. Without a registry, thesesect j-ons are not meani-ngful. For this reason, I have vetoed Sect j-ons101 and 902 of Engrossed Second Substitute Senate Bill 5073. I am notvetoing Sections 402 or 405, which establ-ish affirmative defenses fora qualifying patient or desi-gnated provider who is not registered withthe registry established in section 901. Because these sectionsgovern those who have not registered, this section is meaningful eventhough section 901 has been vetoed.With the exception of Sections 101, 207, 401 , 4L0, 41,7, 412, 601, 602,603, 604, 605, 605, 601 , 608, 509, 610, 6Ll, 70L, '702, 103, 704t 105,801, 802, 803, 804, 805, 806, 807, 901, 902, 1104, 1-20L, 1,202, 1203and 7206, Engrossed Second Substitute Senate BilI 5073 is approved. "
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CHRISTINE O. GREGOIREGovernor
STATE OF WASHINGTON
OFFICE OF THE GOVERNORP.O. Box 4OOOZ . Olympia,Washington 98504- 0002. (360) 902- 4l I I .www.governor.wa.gov
April29,20ll
To the Honorable President and Members,The Senate of the State of Washington
Ladies and Gentlemen:
I am retuming herewith, without my approval as to Sections 101,201,407,410,411,412,601,602,603,604, 605, 606,607,608, 609, 610, 61 1,701,702,703,704,705,801, 802, 803, 804,
805,806,807,901, 902,1104,1201,1202,1203 and1206, Engrossed Second Substitute Senate
Bill 5073 entitled:
"AN ACT Relating to medical use of cannabis."
In 1998, Washington voters made the compassionate choice to remove the fear of state criminalprosecution for patients who use medical marijuana for debilitating or terminal conditions. Thevoters also provided patients' physicians and caregivers with defenses to state law prosecutions.
I fully support the purpose of Initiative 692, md in 2007 ,I signed legislation that expanded theability of a patient to receive assistance from a designated provider in the medical use ofmarijuana, and added conditions and diseases for which medical marijuana could be used.
Today, I have signed sections of Engrossed Second Substitute Senate Bill 5073 that retain theprovisions of Initiative 692 andprovide additional state law protections. Qualifuing patients ortheir designated providers may grow cannabis for the patient's use or participate in a collectivegarden without fear of state law criminal prosecutions. QualiSing patients or their designatedproviders are also protected from certain state civil law consequences.
Our state legislature may remove state criminal and civil penalties for activities that assist
persons suffering from debilitating or terminal conditions. While such activities may violate thefederal Controlled Substances Act, states are not required to enforce federal law or prosecute
people for engaging in activities prohibited by federal law. However, absent congressionalaction, state laws will not protect an individual from legal'action by the federal government.
Qualifuing patients and designated providers can evaluate the risk of federal prosecution and
make choices for themselves on whether to use or assist another in using medical marijuana.The United States Department of Justice has made the wise decision not to use federal resources
to prosecute seriously ill patients who use medical marijuana.
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April29,20llPage2
However, the sections in Part VI, Part VII, and Part VIII of Engrossed Second Substitute Senate
Bill 5073 would direct employees of the state departments of Health and Agriculture to authorizeand license commercial businesses that produce, process or dispense cannabis. These sections
would open public employees to federal prosecution, and the United States Attorneys have made
it clear that state law would not provide these individuals safe harbor from federal prosecution.
No state employee should be required to violate federal criminal law in order to fulfilldutiesunder state law. For these reasons, I have vetoed Sections 601, 602,603,604, 605,606, 607,608, 609, 610,611,701,702,703,704,705,801, 802, 803, 804, 805, 806 and 807 ofEngrossedSecond Substitute Senate Bill 5073.
In addition, there are a number of sections of Engrossed Second Substitute Senate Bill 5073 that
are associated with or dependent upon these licensing sections. Section 201 sets forth definitionsof terms. Section 412 adds protections for licensed producers, processors and dispensers.
Section 901 requires the Department of Health to develop a secure registration system forlicensed producers, processors and dispensers. Section 1104 would require a review of thenecessity of the cannabis production and dispensing system if the federal government were toauthorize the use of cannabis for medical purposes. Section 1201 applies to dispensaries incurent operation in the interim before licensure, and Section 1202 exempts documents filedunder Section 1201 from disclosure. Section 1203 requires the department of health to reportcertain information related to implementation of the vetoed sections. Because I have vetoed the
licensing provisions, I have also vetoed Sections 201,412,901, 1104,1201,1202 arrd 1203 ofEngrossed Second Substitute Senate Bill 5073.
Section 410 would require owners of housing to allow the use of medical cannabis on theirproperty, putting them in potential conflict with federal law. For this reason, I have vetoedSection 410 of Engrossed Second Substitute Senate Bill 5073.
Section 407 would permit a nonresident to engage in the medical use of cannabis usingdocumentation or authorization issued under other state or territorial laws. This section wouldnot require these other state or territorial laws to meet the same standards for health care
professional authorization as required by Washington law. For this reason, I have vetoed Section407 of Engrossed Second Substitute Senate Bill 5073.
Section 411 would provide that a court may permit the medical use of cannabis by an offender,and exclude it as a ground for finding that the offender has violated the conditions orrequirements of the sentence, deferred prosecution, stipulated order of continuance, deferreddisposition or dispositional order. The correction agency or department responsible for theperson's supervision is in the best position to evaluate an individual's circumstances and medicaluse of cannabis. For this reason, I have vetoed Section 411 of Engrossed Second SubstituteSenate Bill 5073. _ ,
I am approving Section 1002, which authorizes studies and medical guidelines on the appropriateadministration and use of cannabis. Section 1206 would make Section 1002 effective January l,2013. I have vetoed Section 1206to provide the discretion to begin efforts at an earlier date.
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Apil29,20lIPage 3
Section 1102 sets forth local governments' authority pertaining to the production, processing ordispensing of cannabis or cannabis products within their jurisdictions. The provisions in Sectionll02 that local governments' zoning requirements cannot "preclude the possibility of sitinglicensed dispensers within the jurisdiction" are without meaning in light of the vetoes of sectionsproviding for such licensed dispensers. It is with this understanding that I approve Section 1102.
I have been open, and remain open, to legislation to exempt qualifuing patients and theirdesignated providers from state criminal penalties when they join in nonprofit cooperativeorgaruzations to share responsibility for producing, processing and dispensing cannabis formedical use. Such exemption from state criminal penalties should be conditioned on compliancewith local govemment location and health and safety specifications.
I am also open to legislation that establishes a secure and confidential registration system toprovide arrest and seizure protections under state law to qualiffing patients and those who assistthem. Unfortunately, the provisions of Section 901 that would provide a registry for qualiffingpatients and designated providers beginning in January 2013 are intertwined with requirementsfor registration of licensed commercial producers, processors and dispensers of cannabis.Consequently, I have vetoed section 901 as noted above. Section 101 sets forth the purpose ofthe registry, and Section9}2 is contingent on the registry. Without a registry, these sections are
not meaningful. For this reason, I have vetoed Sections 101 and 902 of Engrossed SecondSubstitute Senate Bill 5073. I am not vetoing Sections 402 or 406, which establish affirmativedefenses for a qualifying patient or designated provider who is not registered with the registryestablished in section 901. Because these sections govern those who have not registered, thissection is meaningful even though section 901 has been vetoed.
Withthe exception of Sections 101,201,407,410,41I,412, 601,602,603,604,605,606,607,608, 609, 61 0, 61 1,701,702,703,704,705,801, 802, 803, 804, 805, 806, 807, 901, 902, 1104,1201,1202,1203 and 1206, Engrossed Second Substitute Senate Bill 5073 is approved.
Sincerely,
lsl
Christine O. GregoireGovernor
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FINAL BILL REPORTE2SSB 5073
PARTIALVETOc181L11
Synopsis as Enacted
Brief Description: Concerning the medical use of cannabis.
Sponsors: Senate Committee on Ways & Means (originally sponsored by Senators Kohl-Welles,Delvin, Keiser, Regala, Pflug, Murray, Tom, Kline, McAuliffe and Chase).
Senate Committee on Health & Long-Term CareSenate Committee on Ways & MeansHouse Committee on Health Care & WellnessHouse Committee on Ways & Means
Background: In 1998 voters approved I-692 trilttch permitted the use of marijuana formedical purposes by qualifying patients. The Legislature subsequently amended the chapteron medical use of marijuana in2007 and in 2010. In order to qualiff for the use of medicalmarijuana, patients must have a terminal or debilitating medical condition (cancer, HIV,multiple sclerosis, intractable pain, glaucoma, Crohn's disease, hepatitis C, nausea/seizurediseases, or a disease approved by the Medical Quality Assurance Commission) and the
diagnosis of this condition must have been made by a health care professional. Patients are
not provided arrest protection. Instead, patients are permitted to assert an affrrmative defenseat trial with proof of compliance with the medical marijuana law.
Patients may grow medical marijuana for themselves or designate a provider to grow on theirbehalf. Designated providers may only provide medical marijuana to one patient at a time.Patients and their designated providers are limited to possession of an amount of marijuanathat is necessary for the patient's personal medical use, and not exceeding 15 plants and24ounces of useable marijuana.
Summary: Health Care Professionals. In order to provide valid documentation,demonstrating that the patient is a qualiffing patient, a health care professional must examinethe patient, document the terminal or debilitating medical condition of the patient, inform thepatient of other options for treating the terminal or debilitating medical condition, ffiddocument other measures attempted to treat the terminal or debilitating medical condition.The health care professional may not have a business which consists solely of authorizing themedical use of cannabis and may not advertise the medical use of cannabis.
This analysis was prepared by non-partisan legislative stafffor the use of legislativemembers in their deliberations. This analysis is not a part of the legislation nor does itconstitute a statement of legislative intent.
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Patient Protections. Qualifuing patients may assert anafftmative defense, whether or not thepatient possesses valid documentation, if the patient possess no more than the permissiblelevels of cannabis; the patient exceeds the permissible levels of cannabis but is able toestablish a medical need for the additional amounts; and an investigating peace officer doesnot possess evidence of an unlicensed cannabis operation, theft of electrical power, illegaldrugs, frequent visits consistent with commercial activity, violent crime, or that the subject ofthe investigation has an outstanding arrest warrant.
Parental rights may not be restricted solely due to the medical use of cannabis unless thisresults in long-term impairment that interferes with the performance of parenting functions.
Qualifuing patients may not be denied an organ transplant solely because of the use ofmedical cannabis.
Collective Gardens. Qualiffing patients and their designated providers may form collectivegardens to produce cannabis for the medical use of members of the collective gardens.Collective gardens are limited to ten qualifuing patients and a total of 45 plants and 72
ounces of useable cannabis.
Designated Providers. Qualifuing patients may revoke a designation of a designated providerat any time. A person may stop serving as a designated provider at any time but may notserve another patient until 15 days have elapsed.
Limitations. Health insurers are not required to provide cannabis as a covered benefit. TheNational Guard is not required to permit the medical use of cannabis of its employees. Drug-free workplaces are permitted and medical use of cannabis workplace accorlmodations are
not required.
Evaluation and Study. The Washington State Institute for Public Policy must conduct a cost-benefit evaluation of the act and report its results to the Legislature by July 1,2014. TheUniversity of Washington and the Washington State University may conduct scientificresearch on the efficacy and safety of administering cannabis as part of medical treatment.
Local Governments. Cities, towns, and counties may adopt zoning requirements, businesslicensing requirements, health and safety requirements, and business taxes pertaining to theproduction, processing, or dispensing of cannabis or cannabis productions within theirjurisdictions.
Votes on Final Passage:
Senate 29 20
House 54 43 (House amended)
Senate 27 21 lsenate
concurred)
Effective: Jluly 22, 2011.
Partial Veto Summary: The Governor vetoed provisions that would establish a patientregistry within the Department of Health (DOH) and provide arrest protection for thosepatients who register Licensing provisions for producers, processors, and dispensaries were
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vetoed as well as the section providing current producers and dispensaries with an affrrmativedefense if they register with the Secretary of State and file a letter of intent with DOH or the
Departrnent of Agriculture (DOA). Also vetoed, are the sections prohibiting the advertising
of medical cannabis and the requirement that the Joint Legislative Audit and Review
Committee review the licensing programs if the federal government authorizes the medical
use of cannabis and the requirement that if expenditures from the Health Professions Accountexceed receipts, the amount will be made up by the General Fund. Housing protections formedical cannabis patients are also vetoed.
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SENATE BILL REPORTE2SSB 5073
As Amended by House, April 1l,20ll
Title: An act relating to medical use of cannabis.
Brief Description: Concerning the medical use of cannabis.
Sponsors: Senate Committee on Ways & Means (originally sponsored by Senators Kohl-Welles,Delvin, Keiser, Regala, Pflug, Murray, Tom, Kline, McAulifle and Chase).
Majority Report: That Substitute Senate Bill No. 5073 be substituted therefor, and thesubstitute bill do pass and be referred to Committee on Ways & Means.
Signed by Senators Keiser, Chair; Conway, Vice Chair; Carrell, Kline, Murray, Pflug andPridemore.
Minority Report: That it be referred without recorrmendation.Signed by Senators Becker, Ranking Minority Member; Parlette.
Staff: Kathleen Buchli (786-7488)
SENATE COMMITTEE ON WAYS & MEANS
Majority Report: That Second Substitute Senate Bill No. 5073 be substituted therefor, andthe second substitute bill do pass.
Signed by Senators Murray, Chair; Baumgartner, Brown, Fraser, Hatfield, Hewitt, Keiser,Kohl-Welles, Pflug, Pridemore, Regala, Rockefeller and Tom.
Minority Report: Do not pass.
Signed by Senators HolmquistNewbry Honeyford and Schoesler.
This analysis was prepared by non-partisan legislative stafffor the use of legislativemembers in their deliberations. This analysis is not a part of the legislation nor does itconstitute a statement of legislative intent.
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Signed by Senators Parlette, Ranking Minority Member Capital; Baxter, Conway and
Kastama.
Staft Jenny Greenlee (786-7711)
Background: In 1998 voters approved l-692 which permiued the use of marijuana formedical purposes by qualiSing patients. The Legislature subsequently amended the chapteron medical use of marijuana in2007 and in 2010. In order to qualify for the use of medicalmarijuana, patients must have a terminal or debilitating medical condition (cancer, HIV,multiple sclerosis, intractable pain, glaucoma, Crohn's disease, hepatitis C, nausea/seizurediseases, or a disease approved by the Medical Quality Assurance Commission) and the
diagnosis of this condition must have been made by a health care professional. Patients are
not provided arrest protection. Instead, patients are permitted to assert an affirmative defenseattrial with proof of compliance with the medical marijuana law.
Patients may grow medical marijuana for themselves or designate a provider to grow on theirbehalf. Designated providers may only provide medical marijuana to one patient at a time.Patients and their designated providers are limited to possession of an amount of marijuanathat is necessary for the patient's personal medical use, and not exceeding 15 plants and24ounces of useable marijuana.
Summary of Engrossed Second Substitute Bill: Patient Protections. Qualiffing patientsand their designated providers are provided with arrest protection if they possess no morethan 15 cannabis plants and 24 ounces of useable cannabis; are registered with theDepartment of Health (DOH); post a copy of their authorization next to cannabis at theirresidence; and, in the case ofdesignated providers, have not converted cannabis for personaluse.
Quali$ing patients and their designated providers are provided with protection fromwarrantless search and arrest if they are registered with DOH. Law enforcement officers mayseek a search or arrest warrant if the officer determines that the person is not registered withDOH or licensed by DOH or the Department of Agriculture (DOA); is unable to ascertain,
after making reasonable efforts, that the person or location is registered or licensed; believesthat the person or location is disqualified from the protections of the law on the medical use
of cannabis; or believes that a cannabis-related traffrc offense is being committed.
Qualiffing patients with or without valid documentation or proof of registration may assertan affirmative defense at trial if they possess more than the permitted amount of cannabis and
are able to demonstrate that this amount is necessary for the patient's medical use; provideevidence that they were qualifuing patients at the time of the arrest; or are nonresidents of thestate and are authorized by another state to engage in the medical use of cannabis and are
otherwise within the provisions of the medical cannabis law.
Parental rights may not be restricted solely due to the medical use of cannabis unless thisresults in long-term impairment that interferes with the performance of parenting functions.
Qualifuing patients may not be refused housing, so long as that housing is not drug or alcoholfree housing, nor can they be denied an organ transplant solely because of medical cannabis
use.
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Health Care Professionals. Health care professionals must have a documented relationshipwith the patient, complete a physical examination of the patient as appropriate, document the
terminal or debilitating medical condition in the patient's medical record, and inform thepatient of other options for treating the medical condition. Health care professionals may notaccept remuneration from or hold an economic interest in a dispenser, producer, or processor;
offer either a discount or an item of value to a patient to become a customer of a dispenser,producer, or processor; examine a patient at a location of a dispenser, producer, or processor;
have a practice which consists primarily of authorizing the medical use of cannabis; oradvertise cannabis. A violation of the health care professional's requirements constitutesunprofessional conduct.
Methods of Obtaining Cannabis. Qualiffing patients may grow cannabis for their own use,
designate a provider to grow on their behalf, participate in a collective garden with otherqualifuing patients, or purchase from a licensed dispensary. Collective gardens may consistof up to three qualifuing patients and contain no more than 15 plants per person and up to 45plants total.
Licenses. Three types of business licenses are created to license producers, processors ofcannabis products, and dispensaries. Producers are licensed to produce cannabis for medicaluse for wholesale to licensed dispensers and licensed processors of cannabis products.Processors of cannabis products are licensed to manufacture cannabis products includingedible products and lotions for wholesale to licensed dispensers. Dispensers may sell seeds,
plants, usable cannabis, and cannabis products to qualifting patients. Dispensers must be
nonprofit medical corporations and must be approved by the counties and cities in which theyare located.
Licensees are prohibited from advertising cannabis. Licensees who sell to unauthorizedpersons are subject to a class C felony, and failure to comply with the law on medicalcannabis may result in a $1,000 civil penalty. Licensees must prominently display theirlicenses.
Department of Agriculture. DOA licenses producers and processors of cannabis products.Licensed producers and processors must use cannabis analysis laboratories to test theirproducts on a schedule determined by DOA. Cannabis will be tested for grade, condition,and cannabinoid profile. DOA must adopt rules addressing facility standards, includingsecurity requirements; size and security features on containers used for medical cannabis;labeling requirements; licensing requirements, including fees; record keeping; and methodsto identi$ cannabis intended for medical use. DOA may contract with a cannabis analysislaboratory to conduct independent inspections and testing of cannabis. DOA must create and
maintain a confidential list of producers and processors, with names to be released only toauthorized DOA employees or to law enforcement as necessary to verifu licensed producer orprocessor status.
Department of Health. DOH must adopt rules on licensing requirements: including fees,
suspension, ffid revocation of licenses; inspection requirements; safety standards forcontainers used to dispense medical cannabis; cannabis storage requirements, includingsecurity requirements; labeling requirements; dispensary facility standards, including
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equipment standards; and maximum amounts of cannabis that may be kept at a dispensary at
any one time. DOH must create and maintain a confidential list of dispensaries, with names
to be released only to authorized DOH employees as necessary to veriff licensed status.
DOH Registr.v. DOH must establish a secure registration system in which health care
professionals may register qualiffing patients. Participation in the registry is voluntary forqualifuing patients and their designated providers. Law enforcement must be able to consultthe registry to verifu whether a person or an address is registered. The registry must includeproducer, processor, and dispensary information.
Research and Evaluation. The Washington State Institute for Public Policy must conduct acost-benefit evaluation of the implementation of the law on medical cannabis. The
University of Washington and Washington State University are permitted to conductscientific research on the safety of administering cannabis as part of a medical treatrnent and
may develop guidelines for the appropriate administration of cannabis.
Transition. Dispensaries and producers who are registered with the Secretary of State as ofMay 1, 2011, and who file a letter of intent to become licensed with either DOH or DOAmayassert an affrrmative defense if charged with a cannabis-related crime. The transition periodends July 1,2012, and they must become licensed at that time to continue in business.
Appropriation: None.
Fiscal Note: Available.
[OFM requested ten-year cost projection pursuant to I-960.]
Committee/Commission/Task Force Created: No.
Effective Date: Ninety days after adjournment of session in which bill is passed.
Staff Summary of Public Testimony on Original Bill (Health & Long-Term Care): PRO:This bill is a result of two years of work, multiple stakeholder meetings, and addresses a
bipartisan issue. Pain is not a partisan issue. Most of us know a person or know of a person
who has suffered from a very serious condition that could have been assisted by medicalmarijuana. We need to ensure that people suffering from terminal illnesses get a secure, safe,
and reliable source of the plant that helps them. This is a Catch 22 sitntion; patients are
permitted to use marijuana but they have to grow it for themselves and they have no place to
buy seeds or plants. We need to ensure public safety. We need a regulated system in whichlocal jurisdictions enact zoning laws determining where these businesses may be located. We
need arrest protection for legally qualifying patients. Law enforcement needs clarity to
determine who really is a qualiffing patient. We need a method to provide the means forpublic safety through licensed businesses. Patient privacy and confidentiality are protected
by the registry provided for in the bill. We need to have a rational system of delivery whichinvolves a way to regulate growers, producers, and processers so we know that what isdelivered to dispensers is safe. Farmers would like to grow a crop they can make money on.
Dispensaries that provide marijuana are as close to pharmacies as we can get until the federalgovernment changes the scheduling of marijuana. Dispensaries should be like pharmacies
and should be nonprofit. We are at a point where we can go down two roads; we can have
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accountability, or we can do nothing. Law enforcement is frustrated with what is going on inthis area and we have an underground program going on. It is time to bring light to theproblem. This bill is a good start and this is the time to have some certainty and someregulation. We do not want the dispensary mess that they have in California. This is anopportune time to address this because the federal government has provided that states mayestablish rational regulatory systems for medical marijuana in their state. We need torestructure the search and seizure provisions and statutorily redefine probable cause whichwould eliminate the need for civil penalties. Washington voters continue to support the useof medical cannabis by people with terminal or debilitating conditions. The patient registrywill be designed to protect patient privacy. We want clarity for patients and law enforcementwith real arrest protections that also protect patient privacy. Dispensaries should bepermitted to be incorporated under any business model and the limitation for nonprofit onlydispensaries should be removed. Nonprofits do not work for smaller dispensaries or alloperations. If people want to run businesses under each license, they will be required to setup multiple corporate structures. It is not about profit margins but about allowing businesseswith less overhead.
CON: The employment provision is problematic for small businesses. The employmentsection is vague and would lead to litigation. It is unclear if employees must reasonablyaccommodate medical use of marijuana. This would require that employers not take actionagainst employees who take part in an illegal act and employers would face liability bysending an employee home if impaired. This would make Washington a less competitivestate in the national business environment. We are concerned with the section relating toadvertising which signals out radio, television, and billboards but does not address otherareas of advertising. If marijuana is being moved into a medicine category, it should betreated as any new medicine would be and should be tested in clinical trials. This billencompasses more than pain management for people dying of cancer. The provision relatingto designated providers serving one patient at a time should not be implemented until thedispensary system is put in place. The bill removes the presumptive nature of the law anddoes not provide arrest protection if your doctor recommends more than the amountpermitted by the state currently. The registry is voluntary but this is not voluntary if you canget arrested by not signing up on it. Other states with registries have released recordsshowing confidential addresses and patient information. This information can be used toprevent people from purchasing firearms. Evidence shows that cannabis may not be safe.Marijuana can cause the acceleration or aggravation of the very issue it is aimed to treat.Marijuana causes mental health disorders and accidents, vehicular and otherwise.
OTHER: Medical cannabis patients who grow for themselves put themselves at risk forhome invasion and with law enforcement. The currently operating dispensaries should beprotected but the date when those protections take place should be moved from January 1,
2011, to after the bill takes effect or change the provisions for the one dispenser at a time totake effect when the rules regulating dispensaries ulre adopted. Posting a patient'sauthorization by the plants or products would'.cause a patient to post in multiple placesaround their homes and this is not practical for patients; at the most, the authorization shouldbe posted where plants are growing. Cannabis limits for dry weight are concerning. By andlarge, plant counts do not accommodate the needs of patients who do not smoke and who useproducts that require more plant matter. Patient registry databases are being surrendered tolaw enforcement regardless of safety measures and law enforcement can already confirm
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patient status with clinics and authorizers. The registry's database will be broken eventually.
Collective gardens should be permitted to continue to exist and to not be limited to 25
patients. The bill needs to address what patients can do with excess product if they have
grown more than 15 plants and24 ounces. Chronic pain patients need to be included.
Persons Testiffing (Health & Long-Term Care): PRO: Senator Kohl-Welles, primesponsor; Senator Delvin, sponsor; Deputy Mayor Lauren Walker, City of Tacoma; Sheryl
Gordon McCloud; John Schochet, Seattle City Attorney's Offrce; Alison Holcomb, AmericanCivil Liberties Union of Washinglon; Melissa Lunsford, CBR Medical, Inc.; Dr. Gil Mobley;Kent Underwood, Attorney; Matt McCally, Law Enforcement Against Prohibition; Pam
Woodard, Urban Garden; Ezra Eickmeyer, Washington Cannabis Association; Jeff Gilmore,Olympia Medical Group.
CON: Dave Harris, Washinglon State Association of Independent Outpatient Programs;
Steve Sarich, Cannacare; Evelyn Bowen- Crawford; Mark Allen, Washington State
Association of Broadcasters; Tim O'Connell, Association of Washington Business; Stoel
Rives, Patrick Connor, National Federation of Independent Business.
OTHER: Rachel Kurtz; Brian Stone, Northern Waters; Ben Livingston, Cannabis Defense
Coalition; Stuart Ostergard, Eastside Medical Cooperative; Richard Zaharre, MartinMartinez, court-appointed expert witnesses; Justin Prince, Thcoma Hempfest; AlisonBigelow, Member of Collective.
Signed In, Unable to Testiff & Submitted Written Testimony: PRO: George Rohrbacher,
Former Washington State Senator.
CON: John Worthington, AmericanAlliance for Medical Cannabis.
Staff Summary of Public Testimony on Recommended First Substitute (Ways &Means): PRO: This bill addresses many flaws in the current medical marijuana laws. It willbring a clear system of regulations to the procurement of medical marijuana giving true
meaning to the medical marijuana laws. Patients are left in the dark as to what is permitted.
Currently police and prosecutors have to spend time figuring out if someone is in compliancewith the law. Additionally, cities may have to resolve lawsuits against police officers forwrongful arrest and related charges. All this costs cities and counties money. Cities and
counties will benefit from sales tax collections on medical marijuana. The Obama
Administation has given clear signals that it will not pursue action against states withmedical marijuana laws. This bill is addressing an urgent need as conflicts between patients
and law enforcement are increasing. Now is the time for the state to get a handle on the
distribution of medical marijuana. The current approach is atfracting a bad element toWashington State. The state stands to gain tax revenue as more transactions will be
happening legally. Rough estimates for the increase in sales tax revenue are as high as $3
million per fiscal year. Prices would probab[y.change once the sales come out of the dark.
Collectives are operating now. This bill would allow dispensaries, and they could be licensed
and regulated.
CON: The law does need to be changed but creating a commercial approach is not the
answer. The Legislature should consider a medical approach to this issue. Could medical
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marijuana be sold through pharmacies and produced by pharmaceutical companies? This billsets up a large licensing program that is very costly. There should be small gardens orcooperatives rather than lots of regulated dispensary activity. Registration should be
mandatory.
Persons Testiffing (Ways & Means): PRO: Alison Holcomb, American Civil LibertiesUnion of Washington; Peter Holmes, Seattle City Attorney; Ena Eickmeyer, Washinglon
Cannabis Association.
CON: Don Pierce, Washington Association of Sheriffs and Police Chiefs; Tom McBride,Washington Association of Pro secuting Attorney s.
House Amendment(s): A patient or provider who is in compliance with the law on medicalcannabis may not be arrested or prosecuted for the medical use of cannabis; however, the
prohibition on searches is removed. In order to receive arrest and prosecution protection aperson must be registered and acting within the scope of the medical cannabis law includingpresenting proof of registration to law enforcement when questioned; that the law enforcement
officer does not possess evidence that the designated provider has converted cannabis obtained
for a patient for the designated provider's personal use; that the law enforcement offtcer does notpossess evidence that the patient has not converted cannabis for the patient's personal, non-
medical use; and the law enforcement officer does not observe other indicators of criminalactivity.
A person who is not registered but possesses valid documentation may raise an affirmativedefense if the person is acting within the law on the medical use of cannabis; the investigatingofficer does not have probable cause to believe the person has committed a crime or has notobserved evidence of an unlicensed cannabis operation, theft of electrical power, illegal use ofdrugs other than cannabis, or frequent and numerous short-term visits that are consistent withcommercial activity.
Law enforcement does not have to pay a fee to access the registry and costs for law enforcement
access must be paid by registrants. The registry must permit a law enforcement offtcer to verifuat any time whether a health care professional has registered a person as either a qualiffingpatient or designated providet but the law enforcement offrcer is not required to contact the
subject of the inquiry before consulting the registry. Before seeking a non'vehicle search or
arrest warrant, a law enforcement officer must make reasonable effiorts to ascertain whether the
location or person under investigation is registered. This requirement does not apply toinvestigations in which the offrcer has observed evidence of an apparent unlicensed cannabis
operation, theft of electrical power, illegal use of drugs other than cannabis, frequent and
numerous short-term visits over an extended period that are consistent with commercial activity,or violent crime of other demonstrated dangers to the community. This requirement also does
not apply if the officer has probable cause to believe the subject has committed a crime in the
offrcer's presence that does not relate to cannabis or the subject has an outstanding arrest warrant.
Ten qualiffing patients may participate in a collective garden and grow up to a total of 45 plants.
Use or display of medical cannabis in a manner or place that is visible by the public is a class 3
civil infraction and cannabis in licensed dispensers may not be viewed from outside the facility.
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Hotels and motels are not required to accommodate the on-site smoking of cannabis for medicaluse.
The National Guard is exempt and employers may establish drug free work places and those
work places are not required to accommodate the medical use of cannabis of their employees.
There is no right to health care coverage of medical carurabis by an insurer or state purchased
health care program.
Licensed dispensers are not required to be nonprofits. The maximum number of dispensers in acounty must be based on a ratio of I dispenser for every 20,000 residents; this number may be
adjusted beginning January 1,2016. Licensed dispensers may not be located within 500 feet of acommunity centeq child care center, elementary or secondary school, or another licenseddispenser. Cities, counties, and towns may adopt zoning requirements, business licensingrequirements, health and safety requirements, and business taxes but may not preclude the sitingof licensed dispensers within the jurisdiction. The provision requiring dispensers be licensed bylocal governments is removed.
Law enforcement officers, may receive cannabis from licensed dispensers. These dispensers
may provide cannabis to the University of Washington or Washington State University forresearch purposes.
People under the supervision of a correctional agency are exempt if the medical use of cannabis
is inconsistent with the terms of their supervision; local governments and jails are included inthis exemption. Protections from search, arrest, and prosecution does not apply in communitysupervision revocation or violation hearings.
DOH and DOA rulemaking is delayed to January 1,2013. Letters of intent are not subject topublic disclosure; these provisions are not to expire until the DOH and DOA rules are adopted
and they begin issuing licenses.
On July I,2015, and annually thereafter, DOH is to reportto the State Treasurer expendituresfrom the Health Professions Account and revenue deposited to this account under the medicalcannabis program; shortages between expenditures and revenue are to be made up by the general
fund. The Joint Legislative Audit and Review Committee must conduct a review of the cannabisproduction and dispensing system in the event that the federal government authorizes themedical use of cannabis.
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HOUSE BILL REPORTE2SSB 5073
As Passed House - Amended:April 1I,20ll
Title: An act relating to medical use of cannabis.
Brief Description: Concerning the medical use of cannabis.
Sponsors: Senate Committee on Ways & Means (originally sponsored by Senators Kohl-Welles,Delvin, Keiser, Regala, Pflug, Murray, Tom, Kline, McAuliffe and Chase).
Brief History:Committee Activity:
Health Care & Wellness: 3ll4lll,3l23ll1 [DPA];Ways & Means: 3l30lll,3l3llll [DPA(WAYS w/o HCW)].
FloorActivity:Passed House - Amended: 4llllll,54-43.
Brief Summary of Engrossed Second Substitute Bill(As Amended by House)
. Establishes a regulatory system for producing, processing, and dispensingcannabis intended for medical use.
. Establishes protections from criminal liability, including arrest andprosecution protection, and an affirmative defense for certain qualifuingpatients, designated providers, health care professionals, licensed producers,licensed processors, and licensed dispensers.
. Establishes a voluntary registy in which qualiffing patients and designatedproviders may enroll and receive protection from arest and prosecution.
HOUSE COMMITTEE ON HEAI-,JTH CARE & WELLNESS
Majority Report: Do pass as amended. Signed by 6 members: Representatives Cody,Chair; Jinkins, Vice Chair; Clibborn, Green, Moeller and Van De Wege.
Minority Report: Do not pass. Signed by 5 members: Representatives Schmick, RankingMinority Member; Hinkle, Assistant Ranking Minority Member; Bailey, Harris and Kelley..: -..
This analysis was prepared by non-partisan legislative stafffor the use of legislativemembers in their deliberations. This analysis is not a part of the legislation nor does itconstitute a statement of legislative intent.
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Staff: Chris Blake (786-7392).
HOUSE COMMITTEE ON WAYS & MEANS
Majority Report: Do pass as amended by Committee on Ways & Means and withoutamendment by Committee on Health Care & Wellness. Signed by 14 members:Representatives Hunter, Chair; Dameille, Vice Chair; Hasegawa, Vice Chair; Carlyle, Cody,Dickerson, Haigh, Hunt, Kagi, Kenney, Ormsby, Pettigrew, Springer and Sullivan.
Minority Report: Do not pass. Signed by 13 members: Representatives Alexander,Ranking Minority Member; Bailey, Assistant Ranking Minority Member; Dammeier,Assistant Ranking Minority Member; Orcutt, Assistant Ranking Minority Member; Chandler,Haler, Hinkle, Hudgins, Parker, Ross, Schmick, Seaquist and Wilcox.
Staft Amy Skei (786-7109).
Background:
Marijuana is classified as a Schedule I substance under the Controlled Substances Act (CSA).Schedule I substances are characterized as having a high potential for abuse, no currenflyaccepted medical use, and no accepted safe means for using the drug under medicalsupervision. The manufacture, possession, or distribution of Schedule I substances is acriminal offense.
In 1998 V/ashington voters approved Initiative 692,the Medical Use of MarijuanaAct, whichcreates an affrrmative defense to the violation of state laws relating to marijuana if theindividual uses and possesses it for medicinal purposes. Qualiffing patients, or theirdesignated providers, may establish the defense if they only possess the amount of marijuananecessary for their personal use and if they present valid documentation to law enforcementoffrcers. "Qualifuing patients" are those who have been: (l) diagnosed with a terminal ordebilitating medical condition; (2) advised by a physician about the risks and benefits of themedical use of marijuana; and (3) that they may benefit from such use.
Qualifuing patients may grow medical marijuana for themselves or designate a provider togrow on their behalf. Designated providers may only provide medical marijuana to onepatient at a time. Quali$ing patients and their designated providers are limited to possessionof an amount of marijuanathat is necessary for the patient's personal medical use, and notexceeding 15 plants and24 ounces of useable marijuana.
Washington is one of 15 states that have passed legislation allowing the use of marijuana formedicinal purposes. Under federal law, however, such activities violate the CSA. Absentcongressional action, state laws permitting the use of marijuana for medicinal purposes willnot prote'et an'individual from legal action by the federal government. The United States"'Department of Justice has recently issued a statement of policy that it would not focus itsresources on pursuing individuals who are in compliance with state laws for the medicinaluse of marijuana.
Summary of Amended Bill:
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Generally.
The Washington State Medical Use of MarijuanaAct is renamed the "Washington State
Medical Use of Cannabis Act." All references to "marijuana" are changed to "cannabis.""Cannabis" is defined to include all parts of the plarfiCannabis, seeds of the plant, resinextracted from the plant, and compounds of the plant, seeds, and resin.
Producers and Processors.
A regulatory system is established for the Department of Agriculture (DOA) to issuecredentials to licensed producers (producers) and licensed processors ofcannabis products(rrocessors). "Producers" are licensed to plant, grow or harvest cannabis for medical use forwholesale to licensed dispensers and processors. A producer may plant, groq harvest,process, package, transport, label, wholesale, and possess cannabis for medical use.
"Processors" are licensed to manufacture, process, handle, and label cannabis products forwholesale to dispensers. A processor may possess, manufacture, produce, package, transport,label, or wholesale cannabis products intended for medical use by qualifuing patients.Cannabis products include products that contain cannabis or cannabis extracts, have a
tetrahydrocannabinol (THC) content greater than 0.3 percent, and are intended for humanconsumption or application.
The DOA shall administer the licensing program for producers and processors, includingadopting rules, performing licensing functions, conducting inspections, and sanctioninglicense holders following a hearing. By January 1,2013, the DOAmust adopt rules relatedto medical cannabis intended for medical use including inspection and grading standards forcannabis analysis laboratories; standards for containers; labeling requirements; transportationrequirements; security requirements for the facilities of producers and processors; andlicensing and fee requirements for producers and processors. The DOA may also adopt ruleson facility standards, measurements for cannabis intended for medical use, and methods toidentify cannabis intended for medical use.
Producers and processors must submit samples of cannabis they have grown or processed toa cannabis analysis laboratory on a regular schedule. The samples must be analyzed forgrade, condition, profile, THC concentration, and other measures and inspection standards.
Dispensers.
A regulatory system is established for the Department of Health (DOH) to issue credentials tolicensed dispensers (dispensers). "Dispensers" are defined as persons that are licensed todispense cannabis for medical use to qualifuing patients and designated providers.Dispensing activities include delivering, distributing, transferring, packaging, labeling,se.lling"at retail, and possessing cannabis for medical use by qualiffing patientssueh as seeds,
cuttings, plants, useable cannabis, or cannabis products.
By January 1,2013, the DOH must adopt rules related to dispensers, including licensingstandards, inspections, sanctioning procedures, recordkeeping requirements, standards fordispensing containers, storage and security requirements, labeling requirements, facility
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standards, maximum amounts for the premises, sanitary standards for facilities and
dispensing equipment, and enforcement and fees. Dispensers may not be located within 500
feet of a community center, child care center, elementary or secondary school, or anotherdispenser.
The DOH must also establish a maximum number of dispenser licenses that may be issued ineach county. The initial maximum number shall be established according to a ratio of one
dispenser for every 20,000 people. After January l,20l6,the DOH may base the number
upon other factors, including the number of qualifring patients and designated providersenrolled in the registry. If the number of applicants exceeds the maximum number ofallowable dispensers for the county, the licenses shall be issued according to a random
selection process for those applicants that meet established screening criteria. Dispenserlicenses are not transferrable.
Registration System.
By January 1,2013, the DOH, in consultation with the DOA, shall establish a secure and
confidential registration system in which health care professionals may register qualifringpatients. Participation in the registry is voluntary for qualifuing patients and their designated
providers. Law enforcement must be able to consult the registry to veriff whether a person
or an address is registered. Prior to seeking a nonvehicle search warrant or arrest warrant, an
investigating law enforcement officer must make reasonable efforts to determine whether ornot the person or location under investigation is in the registry. The consultation requirementdoes not apply to situations involving an unlicensed cannabis operation, the observation ofother illegal drugs, the theft of electrical power, the commission of a noncannabis-relatedfelony, the existence of an outstanding warrant, or the observation of activity consistent withcommercial activity by an unlicensed dispenser. The registry must include producer,processor, and dispensary information. The registry shall be funded through fees charged to
those who register.
Prohibitions and Protections.
It is neither a crime nor unprofessional conduct for health care professionals to advise
patients regarding the medical use of cannabis and provide a patient with validdocumentation. In addition, health care professionals are provided protection from search,
arrest, and prosecution when conducting these activities. Health care professionals may onlyprovide valid documentation or registration for patients with whom they have a documentedrelationship and only after performing a physical examination, informing the patient of other
options, and documenting the medical condition and other attempted treatrnents. Several acts
are considered unprofessional conduct for a health care professional including receivingpayment from, or having a financial interest in, a producer, processor, or dispenser; having abusiness that consists solely of authorizing the use of medical cannabis; or using references
i.,. ,.'.tothe,rnedical use of cannabis in advertising. 1 ,-.,'
Specific protections from arrest and prosecution are established for qualifuing patients and
designated providers who engage in the medical use of cannabis and law enforcementagencies that fail to seize cannabis. The protections apply if the qualifuing patient ordesignated provider: ( 1) possesses no more than 1 5 plants and 24 ounces of either useable
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cannabis, cannabis product, or a combination of the two; (2) presents proof of enrollment inthe DOH registry to any peace officer; and (3) keeps a copy of proof of registration next toany cannabis at the person's residence. In addition, the designated provider must not have
served as a designated provider to more than one qualifuing patient within a 15-day periodand there must not be evidence that a designated provider has converted medical cannabis forhis or her personal use or benefit. Qualifuing patients and designated providers who are notenrolled in the DOH registry, but possess valid documentation may assert an affrrmativedefense at trial if all other elements of the protections have been met.
A qualifuing patient may not be refused housing for possession or use of medical cannabisand the use of medical cannabis may not be the sole disqualiffing factor in organ transplantdecisions. Qualiffing patients and designated providers may not have their parental rightslimited due to their use of medical cannabis.
Up to 10 quali$ing patients may participate in a collective garden to produce and process
medical cannabis for medical use. The collective garden may have up to 15 plants per patientup to a maximum of 45 plants ard24 ounces of useable cannabis per patient up to a total of72 ounces and may only be delivered to the other participating qualifuing patients.
Producers are prohibited from selling or delivering cannabis to any person other than acannabis analysis laboratory a processor, a dispenser, or a law enforcement officer.Processors are prohibited from selling or delivering carurabis to any person other than acannabis analysis laboratory a licensed dispenser, or a law enforcement officer. Dispensersmay only sell cannabis that they have received from producers or processors and they mayonly sell to qualifring patients, designated providers, producers, or law enforcement officers.Prior to selling or delivering cannabis to a patient or designated provider, the dispenser mustcontact the patient's health care provider to confirm the patient's qualification for obtainingcannabis for medical use. Violations of sales and delivery prohibitions by producers,processors, and dispensers are a class C felony.
Until the DOH and DOA licensing programs begin, dispensaries and producers that are
registered with the Secretary of State as of May l,20Il, and frle aletter of intent to becomelicensed with either the DOH or the DOA may assert an affirmative defense if charged with acannabis-related crime. Letters of intent are not subject to public disclosure. The transitionperiod ends once the licensing programs are operational, and they must become licensed atthat time to continue in business.
Advertising cannabis for sale to the general public in a way that promotes the use or abuse ofcannabis is prohibited. Producers, processors, and dispensers may be fured for suchadvertising. Media sources are not subject to penalties for disseminating advertising in goodfaith without knowledge that the advertising promotes the use or abuse of cannabis.
Studies.
By July 1,2014, the Washington State Institute for Public Policy shall conduct a cost-benefitevaluation of the bill. The evaluation must consider access to an adequate, safe, consistent,and secure source of cannabis for medical use; contact and involvement with lawenforcement by qualifuing patients and designated providers; diversion of cannabis for
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medical use to nonmedical uses; incidents of property crimes with qualifying patientsaccessing cannabis for medical use; and the authorizingpractices of health professionals.
In the event that the federal govemment takes action to authorize the medical use of cannabis
the Joint Legislative Audit and Review Committee must conduct a review of the cannabisproduction and dispensing system. The study shall be provided to the Legislature within a
year of the federal action and shall address whether or not the state's cannabis production and
dispensing system is necessary under the federal system.
The University of Washington and Washington State University may conduct scientificresearch on the effrcacy and safety of administering cannabis as part of medical teatrnent.The research may study the medical safety of cannabis and include the development ofmedical guidelines for the use and administration of cannabis.
Appropriation: None.
Fiscal Note: Available.
Effective Date of Amended Bitl: The bill takes effect 90 days after the adjournment of thesession in which the bill is passed, except for section 1002, relating to research on themedical use of cannabis, which takes effect January I,2013.
Staff Summary of Public Testimony (Health Care & Wellness):
(In support) This bill has bi-partisan sponsorship and support in the Senate. The medicalmarijuana laws currently have many gray areas. Qualifuing patients must have safe, secure,and reliable access to the medication that helps them. There needs to be a bright line for lawenforcement to know who is a qualifuing patient. This bill provides a safe system forregulating dispensaries, producers, and processors. The bill creates a registry for qualifuingpatients and dispensers to provide a voluntary, secure system of protecting legitimateparticipants in the medical marijuana system. There needs to be legitimate means for patientsto access their source of medication. There has been a lot of frustration from both lawenforcement and patients with the current system and there needs to be an open, publicconversation about how to address dispensaries. This bill should be passed with anamendment to exempt qualifying patients from arrest even if they do not participate in theregistry and to eliminate the restrictions on the relationship between health care providersand their patients. The bill's emphasis on the existence of a relationship between the patientand the authorizing physician is a good step, as are the restrictions on advertising. The bill'sparenting protections for qualifuing patients fixes a problem for parents who need medicalmarijuana. More physician education is needed. This legislation adds clarity and uniformityamong local governments. While the dispensary model is not perfect, it is the only modelthat currently works. While the arrest protections are helpful, low-income patients may nothave the resources to participate in the registry. Most commulities do not welcomedispensaries and this bill will help establish dispensaries and cooperatives in places wherepatients are located. This bill will bring greater transparency and accountability.
(With concerns) The bill currently does not provide arrest protections for legitimate patientswho are not on the registy and they will fear being arrested, booked, and prosecuted. There
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is no arrest protection until the registry is functioning, which will not be for several years.
The DOAneeds to have a director with expertise in medicinal marijuana. There needs to be
more work on the time schedule. Medical marijuana is causing increasing conflicts betweendispensaries and local governments because of the ambiguity in state law. The advertisingban on print media is constitutionally ambiguous. This bill needs to give clarification aboutdispensaries so that patients have safe places to get medical marijuana.
This bill goes a long way to providing clarity, especially through the licensing requirementswhich will reduce the black market. The provisions regarding local zoning and licensing are
in conflict and need to be corrected. The bill prohibits the Departrnent of Corrections fromsanctioning an offender under community supervision for using, possessing, or growing incompliance with the bill which may be in conflict with the current process for allowingof[enders to use medical marijuana.
(Opposed) This bill goes too far in providing protection from prosecution to producers byonly allowing for prosecution as an unranked penalty. This is still a federal crime and thenext time the federal administration changes, this system could be subject to criminalliability. Because this distribution system is outside of the traditional health system, there are
not adequate safeguards for patients to ensure that they have high quality care. Pharmacistshave years of training and they can recognize drug reactions and other potential concerns thatdispensaries cannot protect against. This bill could reduce the perception among childrenthat marijuana is harmful. This should be constructed as a medical model, rather than acommercial model, and should be dispensed through pharmacies, not stores. The bill shouldinclude a study of the impacts on youth. The Legislature has recently reduced funding forsubstance abuse prevention in schools and communities. Contracts at the Department ofCommerce contain federal restrictions that prevent a medical marijuana system from beingeffective. The Legislature should hold hearings to determine the correct scheduling ofmarijuana. The current law needs to be fixed, but this bill goes too far. This bill eliminatesany chance of a doctor writing a recommendation for a patient. Medical marijuana should be
viewed as a medical specialty. This bill wipes out existing dispensaries and does not createany new ones until July 2014. There is no need to rush this bill since it has the potential toharm communities. There is not a need for a registry as long as the state develops astandardized authorization form.
Staff Summary of Public Testimony (Ways & Means):
(In support) This bill has bipartisan sponsorship and support. The bill is necessary to removeseveral ambiguities in the current medical cannabis laws for both patients and lawenforcement. There are currently many dispensaries around the state that are unregulated.This bill is a necessary starting point for bringing the medical cannabis system into the light.The current system regarding the production and distribution of medical cannabis lacksclarity. Dispensaries are stuck in a legal gray arcawhich costs local government money.
This bill will create a rational regulatory system and sr*pport local governments. Local ,
governments are shutting down dispensaries because the current law is not clear. This billwill support a stable and sustainable system for obtaining medical cannabis. Dispensariesshould not be for profit entities. Medical cannabis patients are willing to pay to support the
system. There will likely be an immediate increase in revenue once the bill passes and
dispensaries are legitimate. The patient registry will generate savings to law enforcement.
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Patients should not be required to register with the state in order to avoid criminal liability.The state has an obligation to ensure safe access to cannabis. There is a lot of money inmedical cannabis, and within two years this bill will balance the state's budget. There needsto be safe and legal access to medical cannabis. Doctors need to be able to advertise, so thatpatients can be informed. There should not be a cap on the number of dispensaries, but ifthere must be a cap it would be better to base the number on the population of the county.
(In support with concerns) If this is a medicine, then pharmacies should be the dispensariesthrough a prescription to minimizethe abuse by youth. In Colorado there were too manydispensaries and too strong of an impact on youth. Medical marijuana is extremelypromising when it comes to pain control and is a cost-effective treatment. The provisionsregarding the doctor-patient relationship are not workable.
(With concerns) It is inappropriate to use the Health Professions Account for this purposesince licensed dispensers are not health professions. If the start-up funds do not come back
. to the Health Professions Account, it could cause problems for the funding of small healthprofessions. The first year funding and the fees are necessary for proper implementation.There should be a more robust definition of "cannabis analysis laboratories" and standardsfor the disposal of excess samples. The definition of a "designated provider" remains vague.The timing of the rulemaking is problematic. The random selection process for dispensarieswill be challenging and costly to implement because of the lack of data regarding the sales ofcannabis. The random selection process should be removed because there is a need forexperienced people running the dispensaries. There are an estimated 100,000 patients inWashington using medical cannabis; however, the current ambiguity is causing chaos. If thisbill does not pass, the industy will be driven further underground. The provisions limitingthe number of dispensaries and the lottery to select them could leave high quality dispensarycandidates out in the cold.
(Opposed) Law enforcement should not be exempt from having to pay for the registry.Washington can determine which drugs should be controlled substances. This bill will onlyraise the price of medical marijuana. The numbers and the dates in the fiscal note do notmatch up. The Department of Health's fiscal note is unreasonably high. The bill needs toallow specialized health care professionals to see patients. All patients should receive arrestprotection regardless of their registration stafus. Scarce law enforcement resources can bemaximized by encouraging the use of the registry. The number of dispensaries should not bebased on the number of people on the registry because there is little incentive to register.
Persons Testi$ing (Health Care &, Wellness): (In support) Senator Kohl-Welles, primesponsor; Senator Delvin; Alison Holcomb, American Civil Liberties Union; John Schochet,Seattle City Attorney's Office; Charles Heaney, King County Medical Society; SharonBlackford; Karen Hamilton; Randall Lewis, City of Tacoma; Loren Bailey; and JeffGilmore.
(With concerns) Rachel Kurtz, Cannabis Defenqe Coalition; Joanna Mckee; Ezra Eickmeyer,Philip Dawdy, and Laura Healy, Washington Cannabis Association; Anthony Gibbs; BrianEnslow, Washington State Association of Counties; andAnnaAylward, Deparfrnent ofCorrections.
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(Opposed) Don Pierce, WashingtonAssociation of Sheriffs and Police Chiefs; Russ Hauge,
WashingtonAssociation of Prosecuting Attorneys; JeffRochon, Washington State Pharmacy
Association; Seth Dawson, Washington Association for Substance Abuse Prevention; John
Worthington, AmericanAlliance for Medical Cannabis; Ken Martin, WashingtonAssociationfor Medical Cannabis Providers; Steve Sarich, Cannacare; Steve Mansfield, Lewis CountySheriffs Office; and Don Skakie, Cannabis Defense Coalition.
Persons Testifuing (Ways & Means): (In support) Senator Kohl-Welles, prime sponsor;
Senator Delvin; John Schochet, City of Seattle; LaylaBush; Alison Holcomb, American CivilLiberties Union of Washington; Ivan Schwarz; JeffGilmore; Melissa Lunsford, CBRMedical, Inc.; and Kent Underwood, Washington DefendersAssociation and WashingtonAssociation of Criminal Defense Lawyers.
(In support with concerns) Seth Dawson, Washington Association of Substance Abuse
Prevention; and Robert Billings, American Heritage.
(With concerns) Lori Bulinski, Washington State Chiropractors Association; MelissaJohnson, Washington State Nurses Association; Carolyn Logue, Washington DenturistAssociation; Tom Davis and Mary Toohey, Washington Department ofAgriculture; BrianPeyton, Department of Healtfu Dale Rogers, Greta Carter,atdEnaEickmeyer, Washington
Cannabis Association.
(Opposed) Valtino M. Hicks, NorthwestAlliance for the Healing Cure; John Worthington,AmericanAlliance for Medical Cannabis; Steve Sarich, Cannacare; Matthew Smith,
Washington Health, Inc.; Jo Arlow, Washington Association of Sheriffs and Police Chiefs;and Don Skakie, Cannabis Defense Coalition.
Persons Signed In To Testiff But Not Testi$ing (Health Carc & Wellness): More than 20
persons signed in. Please see committee stafffor information.
Persons Signed In To Testiff But Not Testi$ing (Ways & Means): None.
House Bill Report -9- E2SSB 5073 APPENDIX - 73
Case: 12-30208 10/15/2012 ID: 8361621 DktEntry: 9-2 Page: 74 of 74(131 of 131)
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