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Washington State Court Of Appeals Says Medical Marijuana Dispensaries Are Illegal

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washington court of appeals medical marijuana dispensariesThe medical marijuana industry in Washington State has been a bit turbulent for quite some time now. Medical marijuana has been legal in Washington since 1998. Medical marijuana dispensaries (or collectives, or clubs, or safe access points, or whatever you want to call them) started popping up all over the state during the last decade. Much like Oregon dispensaries, these establishments have been operating in a grey area at best. In 2011 the Washington Legislature passed a bill which would have licensed these outlets, but the Governor vetoed the provisions that would have done so.

There was a major ruling recently that seems to have determined that medical marijuana dispensaries are illegal in Washington, which should lead to some interesting challenges to the Washington State Supreme Court. From SameFacts.Com:

In the meantime, the town of Kent had passed a local ordinance banning medical outlets. Various industry players sued, citing what was left of the 2011 law. But now the Washington State Court of Appeals (the second-tier court) has ruled that the governor’s partial veto makes all the collective gardens illegal, because a legal collective garden must serve registered patients and there is no patient registry. Therefore, Kent is at liberty to ban what was – according to the court – an illegal activity in the first place. All that’s left of the medical marijuana law is permission for individuals with medical recommendations to grow their own: if charged with a violation of state law for production or possession (but not, apparently, sale), a medical recommendation creates an affirmative defense.

Do you live in Washington State? What do you think of this ruling? I think that some areas will use it to push out dispensaries, while other areas like Seattle will continue to refuse to enforce anything and allow the dispensaries to keep operating. All of this of course will continue to be complicated by the botched roll out of I-502. It’s times like this that I’m glad I live in Oregon.

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Johnny Green

48 Comments

  1. kip d. mony on

    the 1998 law intended to protect and still protects patient-to-patient transfers, and also protects the patient from a charge of purchasing from a non-patient.

  2. Injustice will always call for Revolution. At it isn’t just pot, as we all know. The inbred corruption of the Cop/Jailhouse Staff just echoes the same bottom feeding going on at all levels of this government. Stay tuned, buckle up, and hope the NSA is recording you (and me.) Justice will out, but the country itself may have a new name…..I hope.

  3. I’m willing to bet the COPS will be the first rats leaving this sinking ship. Their power is too obvious to be sustained.

  4. AaronKightlinger on

    Is the Affirmative Defense also moot, given no registry? I’ve been successful with my Affirmative Defense twice since 2012 (Thanks to Aaron Pelley, Douglas Hiatt, Jesse Corkern & David Arganian).

  5. medcannabis1 on

    Political gamesmanship….. this is why we must work to elect intelligent and informed citizens to public office in the legislature and purge the existing prohibitionists from office…. until then … more needless suffering from the sick and dying

  6. The ASA spent $9000 this last legislative session trying to pass legislation that would have killed off medical cannabis in Washington State. They had a meeting last night to form the first chapter of the ASA in Washington. They are signing up all the the I-502 recreational pot merchants as “patients”….so they can argue that they “represent patients” in Washington. Cute trick. Sock puppet patients.

  7. Erik11235813 on

    You have no idea what you’re talking about. There would be no dispensaries in so cal if not for don duncan and ASA.
    Duncan is not a rich man.
    The mess inLA can be attributed to trutanich and the city council. Not duncan.
    Stop trying to eat your own.
    The council was going to act, and they were going to ban all the shops or else all but the pre ico. It sucks but it was what it was. I hope you learn to stop hating so much. The vitriol is repugnant.

  8. Clearly, you care a great deal about my opinion. Your image is obviously very important to you, Steve. Otherwise, none of us here would have been blessed with your delusions of political persecution. You also *clearly* care a great deal about the opinions of several other complete strangers. But ya — you just keep saying how much you don’t care.

    Let me share a secret with you, Steve. I don’t have a clue who you are, and I never have. I have never read or heard your name before today. I’ve judged you, accurately, entirely by your inability to conduct yourself with an ounce of decorum. Russ is also a condescending, self-aggrandizing, egomaniacal showboat who insists he can do no wrong, but at least he’s never been responsible for setting bad legal precedent. Russ’s narcissism is relatively benign, thankfully. So next time you need to have your pride stroked, just come back here and I’ll tell you you’re pretty. Do the entire cannabis law reform movement a favor and stay out of court, forever.

    Frankly, the pageantry of you so-called “professional” cannabis activists isn’t the grand inspiration you think it is, especially now that you’ve lost your case. You and Russ are so alike — both beyond reproach by self-declaration. I understand how emotionally crippling your courtroom defeat was, given your massive need of validation. But just look over the rants and ravings you’ve published on this article over the last few hours. You’ve given up on conducting yourself in any sort of respectable manner. Put simply, you’ve been acting like a twit, and defending your pride isn’t an excuse for your abrasive attitude. Stop embarrassing yourself, but more importantly, stop embarrassing the rest of us.

    Examine the comments you made to the moderator — you *actually* threatened to LEAVE and take your commenting business elsewhere. Let’s not even TRY to make sense of how that’s some sort of a negative consequence the website administrators are supposed to fear. It’s as if commenting on this article is a service you’re paying for… That’s like sending back food at a soup kitchen because you’re dissatisfied with the way your FREE meal tastes. Believe me, if you make good on your “threat” and never come back here, you will not be missed.

  9. Wow! You really love to whine! I guess I was mistaken….I thought that when you were giving me your critique on our case that you were actually interested in the case….or I wouldn’t have bothered to even respond to you. Obviously you just wanted to bitch and whine about me, personally. Save your breath. I don’t think anyone actually cares what your opinion of me is. I know I certainly don’t….but go ahead and whine away if it make you feel any better.

  10. Thank you for perfectly demonstrating my point, which was ENTIRELY limited to the way you interact with people. I said that in the first passage. Not my fault you lost, but you’re certainly lashing out at me, too, simply because I pointed out how childish your reaction in this comment thread has been. Especially when you complained to the moderator — your comments are riddled with ad hominem snark and disdain, which is kinda like a school yard bully complaining to the teacher.

    Were I interested in having a legal discussion with you, I would have read your brief. Which is why I didn’t start a legal discussion — you’re having THAT discussion all by yourself, big man. All I’ve done is accurately describe your temper tantrum. Although it is adorable how you are now, retrospectively claiming you always intended to lose the case, that this is a stepping stone to the Supreme Court. Delusions of grandeur (as well as delusions of persecution) are also symptomatic of people with your particular personality deficits. I still say it was a mistake to remove NPD from the DSM-V.

    So yaaaaa, you’re not making yourself out to be a martyr. You’re just nailing yourself up on a cross for the fun of it. Gotcha. No really. I believe you. So please, give me another splein-vent response. Cuz I’m totally in your corner, buddy. Especially with that winning character of yours. It’s a wonder the judge didn’t immediately swoon.

  11. I’m hardly playing the victim….I’m simply responding to incorrect comments regarding our lawsuit. I don’t know anyone that takes Russ seriously….including the people at NORML who think he’s a horses ass. I’m not sure what you think I’m hypocritical about.

  12. Radical Russ is the one who wants to create a lynch mob, arguing falsely that we’ve created a problem for the medical community due to our ineptness. I certainly can’t discuss the case with you, or anyone else, who insist on NOT reading the briefs filed in the case by the attorney….while insisting that the briefs were poorly written. I did not write a single brief. Deryk Tsang did not write his brief either, it was written by attorney David Mann, and experienced appellate court attorney, and a newly appointed appeals court judge. So your blind speculation about how anyone’s “fervor” may have crept into our briefs is totally ridiculous, but it’s the kind of comment that people make when they’re too lazy to actually read the briefs, yet still feel somehow qualified to critique them in a public forum.

    I do not consider myself a “martyr”, nor am I looking for sympathy from you or anyone else. Where you are getting this “wallowing in self-pity” bullshit, I have no idea. Please don’t attempt to psychoanalyze me….you clearly aren’t qualified.

    We have not “lost” this case. Both sides knew that this case would ultimately be decided by the State Supreme Court, no matter who won in the lower courts. So this appellate court decision is simply part of the process of getting the case to the Supreme Court. No one has lost or won yet. It won’t be decided for months and possibly not before the next session of the legislature. In the meantime, the Supreme Court stay is still in place and the current collectives are protected. And they’ve been protected for the last two years, allowing safe access to patients. Is that a “bad outcome”?

    Are patients in more danger than they were before? The simple answer is “no”. Are patient who grow at home ANY more “illegal” than they were before this decision? No. So, please let me know what negative outcome you believe, in your expert opinion, that our lawsuit has caused patients in this state, rather than just assuming that there was a negative outcome.

    Is this simply a matter of you not liking my attitude? If so….tough shit. Who the fuck cares whether you like my attitude or not. Certainly not me. I’m not running for office and I’m not looking to win any popularity contests. I’m doing my job and helping defend the rights of patients….which is something you can’t claim to be doing.

  13. Fact is, Steve — your words, your claims, are just as credible and anecdotal as the Angry Lawyer. I won’t pretend I’m familiar with this case or that I read your brief. I will, however, point out how your behavior *right here* doesn’t immediately discount the possibility that you made terrible/weak arguments in court, and THAT is why you lost your case. Your claim that the ruling was political is just that — a claim. A reference to a private conversation with Suzanne Elliot (or anyone else you wish to label “well-known” by fiat) is not something anybody can verify.

    The way you took the criticism of your case and immediately elevated/exaggerated that criticism to the level of “lynch mobs” and “cross burning” really doesn’t help your claim that your case’s arguments were reasonable. I live somewhere you don’t joke about lynch mobs and cross burnings because those things are still in living memory for some people. Frankly, the way you’ve martyred yourself here makes you look like an overly indulgent, self-righteous jerk. I’ve known a lot of guys like that — they always have someone ELSE to blame for anything that goes wrong, they love to wallow in self-pity, they always lash out at anyone who suggests they’re the one responsible when things don’t go right, and there’s nothing they love more than trying to play both hero and victim in every situation. In this regard, you and “Radical” Russ are very much alike.

    Add that to your previous comments in which you use the Holocaust the same way — reducing genocide to a cheap, argumentative device — let’s just say I can COMPLETELY understand how your “fervor” could have seeped into your legal brief and lost your case. Lawyers argue the case YOU bring them. That’s reality. Your statements in this comment thread are indicative of an unreasonable person whose petulant attitude should NOT be allowed anywhere near a legal battle of this importance. You wouldn’t get a parking fine reduced playing that jazz in a courtroom.

  14. Oh that’s rich, Steve. You come on this forum whining to the moderator as if you are the suffering martyr that’s being attacked and insulted.
    Permit me to share a little something with the readers that you posted two months ago on a similar subject on Washington’s medical marijuana dilemma: “Rectal Russ still thinks he’s the attack dog for NORML. Attacking the activists who are trying to save medical here is Washington is typical of his rabid, nonsensical rants that got him fired from NORML in the first place. I’m sure that Rectal Russ blames the Holocaust on those pesky Jews.”
    So which is it? Steve the victim or Steve the hypocrite?

  15. Don Duncan is a racketeering criminal. ASA is nothing but a poisonous thorn. A self-limiting tumor. They are designed to scale back laws in progressive marijuana states. Their goal is to create a limited amount of “big” dispensaries, that they quietly sponsor, and eliminate any competition. They do this by going to city councils and encouraging them to set up caps on the number of collectives, moratoriums, or complete bans. They are literally gangsters, exploiting the law off the sympathy and expense of naive patients and supporters to make themselves and their buddies rich. ASA has a strong role in scaling back California. See their support and lies of Measure D over Measure F in Los Angeles.

  16. INSUREBUD@GMAIL.COM on

    It is a setback, nothing major. The legal guys have been screaming for more regulation for years now. It sucks but something is going to change. The Medical Marijuana crew has had a good run. Name another industry that hasn’t had regulation in 15 years? Since we didn’t forward regulations of our own, one will be put upon us. A patent register is just one new rule that will have to be dealt with.

  17. Same thing is going on in California re: medical cannabis. There is a “regulation” (AKA strangulation) bill, SB 1262 that is sponsored by the “California Narcotics Officers Assocation” and the “California League of Cities”. The COPS are apparently the ones who think they should be the ones writing the legislation for our medicine in California. The bill places heavy restrictions on doctors, patients, and what type of marijuana you can use (and makes BHO possession illegal), among other erroneous measures. And there is complete silence in the MMJ community and news. Instead, the news agencies have spun the bill as a “savior” bill giving “needed ‘regulation’ to medical marijuana in California”, when anyone who has eyes and is able to read knows this bill would kill Prop 215 in California.

  18. Feel free to flag any comments that are not appropriate and they will be deleted. I support discussion, not personal attacks.

    Thanks

  19. The Governor has the news media in Washington on a very short leash over medical cannabis issues. There will be a story in a national publication, either Reason Magazine or Forbes, today or tomorrow. Local media has been told to stand down.

  20. Johnny, if no one is going to moderate this forum and stop these baseless personal attacks and name calling, I will simply stop posting here…which I’m sure is their goal….but I refuse to let these anonymous jerks post whatever lies and personal insults they like without moderation. This forum has turned into an offensive free-for-all. I’m not the only commenting on this lack of moderation.

    For the record: I have NO STAKE in the dispensary business in Washington State. I no longer even grow my own medicine and I certainly do not sell any cannabis. That goes for every other member of the CAC Board of Directors. We have absolutely zero financial stake in what happens with EITHER I-502 businesses or with the medical dispensaries. Our job is to protect the patients’ rights and their safe access to medication.

    “Steve Sarich = evil. I-502 will provide plenty of clean product to those will a medical need – tax free.”

    This was obviously posted by a 502 license applicant/supporter. All of the legislation we killed in the legislature this year called for a tax on patients who would have been forced to purchase their medicine through I-502 recreational stores. One of them called for a tax break on JUST the sales tax (the smallest of all the taxes on recreational pot), but only if the patients were registered with the State…..something we will NEVER agree to. So what this sock puppet is saying about “tax free” is absolutely a lie. Even if this law had passed, and patients agreed to be registered, they would have had to pay over 50% in taxes for their medication.

    Stating that “I-502 will provide plenty of clean product”, is also a lie. The LCB rules allow for the use of at least 200 different pesticides. Does anyone really consider that “CLEAN”? They will now allow concentrates, but the limits are 700ppm of hydrocarbons in these products. Does anyone consider that even CLOSE to “clean”?

    The supporters of I-502 seem to have a problem with telling the truth.

  21. Chronic Pain Coop on

    All dispensaries have to do is make your shop your home address. Then make it a invite only shop for patients. Snitches can’t record anything without a Warrant. Also it is a human rights violation to deny patients medicine. G.oogle Seattle’s best snitch for more information.

  22. A 12yo can go to a 7-11, and buy a COCAINE DERIVATIVE preparation,[ORA-GEL].meant for use by INFANTS for teething pains.
    A dying cancer patient has to live in fear of arrest,robbery,and harrassment, for their use of MEDICAL CANNABIS!

  23. BOYCOTT 502 !
    Why boycott? Do you have some good bud right now? There’s a reason.
    Do you want some good bud, but can’t afford it? That’s another reason.
    GROW YOUR OWN ! SHARE IT WITH FRIENDS !

  24. Another I-502 sock puppet pretending to be an attorney….cute. Mr. Sock Puppet, the “attorney” claims to have read the terrible briefs written in this case that he claims we wrote. Contrary to his claims, Mr. Sock Puppet clearly failed to read these “most insulting briefs” written by the plaintiffs.

    Deryck Tsang’s brief was written by Seattle attorney David Mann, who was also the attorney that argued the case, admirably, before the Court of Appeals. David Mann is no slouch attorney and has, since this decision was published, been appointed to the State Court of Appeals.

    Seattle attorney Douglas Hiatt wrote my brief and I was represented by my outstanding attorney, Aaron Pelley. So did he read these briefs? Apparently not since he thought I was the one doing the brief writing. So, Mr. Sock Puppet, is lying. He’s not an attorney and he didn’t read the briefs that were submitted to the court.

    Well known Appellate Court attorney, Suzanne Elliot, reviewed this Appellate Court decision and told us that it was very clear that this was a political decision by the court….not a decision based on the state law. The other attorneys in the case agree with her assessment. Only Mr. Sock Puppet, the “attorney” disagrees with Elliot’s assessment.

    “Yes I am angry about this and you should too. We need to organize to prevent this sort of thing from happening again.”

    I love these idiots that make up false identities, claim to be attorneys and then use their new found credentials to stir up hate and distrust. This moron is actually trying to “organize” people to stop us from being activists. Is he going to organize a lynch party? Burn crosses on our lawns? As an activist you can always be sure of one thing….that there will be no shortage of morons with personal agenda trying to stir the pot. And you can be sure that all of them want to remain anonymous.

    The bad actors in this drama are the idiots at CannaLaw group the wrote that home grows are now illegal in Washington State….purposely lying to scare patients. Shame on you, Hilary!

  25. I know I’ll catch shit for saying this, but the states that didn’t create very sound laws that not only allow patients to utilize cannabis but also protect them from this kind of crap have done an injustice to the patients and everyone else. Dragging this crap in and out of the court systems is costly to everyone, and so unnecessary. While I applaud states like Calif and Washington for stepping out and starting the bud rolling, the people who are left unprotected and at the mercy of others is very, very unfortunate. It didn’t have to happen like this.

    Stop with the profanity and name calling already. This too is very unproductive and makes everyone here look bad.

  26. Back to the question posed about “Do you live in Washington State? What do you think of this ruling?” It is my opinion that it will be impossible to take something back from the medical community that was previously allowed. We should work towards changing the federal classification.

  27. After reading this weedblog this morning my first comment goes to the moderator/s (if there are any) asking them why they are allowing profanity and personal insults to be displayed here? I don’t mind hearing all sides of arguments but am disgusted by the personal comments. If the rules of conduct are not followed then we all loose. I didn’t sign up to listen to mental midgets vent. Please do your job of moderation or I will stop my subscription.

  28. it is not over–in this country people are SMART enough to see what is going on take man made stuff with side effects rather then get the true medicine and not pay the medical industry time is short and the American people want the truth to get well and live happy–

  29. I just posted this here http://www.cannalawblog.com/a-bad-court-of-appeals-decision-leaves-mmj-hanging/#disqus_thread on the Canna Law Blog as well and I’m posting it again here to try to fight back against the poison that Sarich and Worthington are trying to spread by blaming everyone for themselves for the harm that THEY (and nobody else) have caused us by their arrogance.

    I have been practicing law in this state for more than 20 years and in an attempt to figure out what actually happened in this case I went back and read the briefs and the court order. This is a classic case of really bad lawyering creating really bad case law for the rest of us. Steve Sarich, John Worthington and Deryck Tsang were the plaintiffs in this case and their briefs were probably the worst written and most insulting briefs I’ve ever seen. The Court of Appeals almost had no choice but to rule against them because their arguments were so absurd and so stupid. I suspect the Court got angry at them and in so doing went even beyond just their case and held that medical cannabis is illegal everywhere. This is the problem in the pot world. Idiots like these three people can kill it for the rest of us. These three people with their stupidity and their hubris have ruined it for the rest of us. My elderly father used medical cannabis and now thanks to these buffoons his doing so again would be illegal. There is an old saying about looking before you leap. Sarich and Worthington have a long history of jumping into deep waters and drowning by not looking first. This time though their unparelled stupidy has drowned countless needy patients with them. Yes I am angry about this and you should too. We need to organize to prevent this sort of thing from happening again. If we do not we will all pay a steep price, of that I am certain.

  30. Kleiman was certainly the wrong choice for the job, but the LCB was doomed to failure from the beginning. I think Kleiman’s effect on the process was minimal….though expensive. They ended up paying him nearly $900,000 on what was supposed to be a $100,000 contract. I wonder how that works and why no one is asking that question.

  31. This is the typical level of intellect shown by Sam Wayne Smith and the I-502 crowd here in Washington. On Friday, May 2nd, the Liquor Control Board will be announcing the winners and losers in the I-502 retail lottery. If you think these people are surly now, wait till you hear them cussing and wailing when they fail to get an LCB recreational retail license. Their dreams of millions of dollars recreational pot profits will finally be dashed, pushing them over the edge. As you can tell, some of them are already close to the edge.

    I suppose I’d feel more sorry for these 502 applicants, but it’s hard to forget the $250,000 they spent trying to kill medical cannabis this last session. That includes the $9,000 that the ASA spent to kill medical here. They’ve made it clear that they, like NORML, have chosen sides and have come down on the side of “big marijuana” over the medical community. Probably why they don’t have a single ASA chapter here in Washington.

    Steve Sarich
    Cannabis Action Coalition

  32. hemp is probably fine for some conditions i.e. epilepsy, but when it comes to relieving ocular pressure or chronic pain cbd alone will not cut the mustard. There is a lot of documentation that states that THC and CBD work best in conjunction.

  33. having lived in California where a medical patient can buy and/or grow, it was strange to live in hawaii where you can only grow…but try OK where you cannot do either cause we have no medical provision…if you need it, honestly for a medical condition and not for the want of being high, find hemp…all the excellent healing benefits without the high…and it is now legal, federally, in all 50 states…getting healthy outweighs getting high every time

  34. KMUD.org radio (Emerald Triangle) just received a donation “in memorial of Dr. Courtney and Kristine’s tragic loss of their baby.” Do any of us know more?

  35. With the states on the west behaving like this, it’s inevitable that in 5 years we will all be buying marijuana from Colorado. The only state with enough sense to treat it as an indistry

  36. It sounds like their governer isn’t trying to work with the people to make the legalization process happen smoothly.

  37. The Appeals Court ignored every major issue in the case. Their decision ignores the State Supreme Court’s decision in the Kurtz case. No where in SB 5073 did it grant the cities the power to license or zone for collectives. The State Attorney General pointed this out when he stated that the cities COULD, in fact, have moratoriums on the I-502 businesses because they were specifically given that power. But they weren’t given that power over the collectives. The court failed to address that issue. A plain reading of the law says that collectives are legal. The Appeals Court says they are not. This is not a case that the Supreme Court can ignore.

    In the meantime, the Supreme Court stay is still in place and these cities cannot take action unless we lose this case in the Supreme Court (or they refuse to hear it…which is highly unlikely).

    Steve Sarich
    Cannabis Action Coalition

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