The feds and King County share a similar hands-off policy when it comes to the state’s medical cannabis law and cities approving zoning for collective gardens.
The lack of clarity, however, is what is propelling the proposed ordinance banning collective gardens, according to Maple Valley city officials.
Maple Valley is considering a potential ban on collective gardens. Much of the rationale for the ban is based on federal law, which has medical marijuana classified as a Schedule I drug, making it illegal to grow, cultivate, possess or use for any purposes.
City Manager David Johnston has used federal preemption to justify the city’s action.
“My main concern is we’re operating legally at all levels of government, federal, state and local,” he said. “As long as there is this concept called preemption…I can’t put my staff and the city in legal jeopardy for violating federal law. We’re not focusing on the compassion or validity of medical marijuana. It’s the same rationale that Gov. Gregoire used in her line item veto. We have the same concerns.”
City Attorney Christy Todd stated the Medical Cannabis Law gives cities the authority to zone for collective gardens, but does not require them to zone for it.
While other cities in Washington state such as Bellevue and Seattle have approved zoning for collective gardens, Todd stated that the Washington Cities Insurance Authority (WCIA) would not insure the city if a lawsuit was filed against Maple Valley, forcing the city to carry the financial burden.
“When we were doing research I contacted our insurer and said ‘What is your position in regards to offering defense if any city employee were to be prosecuted for aiding and abetting the permitting of some land use that the federal government said is illegal,’” Todd said. “They said, ‘We only insure under our policy for acts that are legal.’ What they told me is that our insurance provider would not necessarily provide insurance coverage if we had to defend one of our employees.”
MIXED MESSAGES
According to the Washington State Attorney General’s Office, cities have the authority to ban collective gardens if they are given the powers to do so in their municipal code.
Meanwhile, federal law enforcement agencies have given ambivalent messages when it comes to city’s zoning for collective gardens in states with medical cannabis laws. When interviewed, spokespersons from both the justice department and the drug enforcement agency (DEA) declined to comment on whether cities such as Maple Valley need to, or should, ban collective gardens in order to avoid the risk of federal prosecution.
“We can’t comment on state laws,” said DEA Public Information Officer Jodie Underwood. “Federal law is what we enforce. We can’t talk about hypothetical because we don’t know what each scenario has going on with it. Federal law is federal law. What I can tell you is that federal law prohibits it, so it’s a violation of federal law to do that. Any such entity growing, possessing, distributing is subject to federal prosecution.”
Emily Langlie, spokeswoman for the U.S. Attorney’s Western Washington District Office, stated the justice department doesn’t become involved in local or state legislation issues as a matter of policy.
“Federal statutes in this area would trump state law,” Langlie said. “It’s something that people may express a different legal view of who one they think would be controlling.”
Washington voters passed Initiative 692 in 1998, which protects the physicians who prescribe medical marijuana for those with terminal or debilitating conditions, as well as the patient, under what is called affirmative defense.
In an affirmative defense, the defendant offers a defense that bars, or prevents, the prosecutor’s claim, and in doing so limits or excuses a defendant’s culpability or liability in the case.
In 2011, the state Legislature passed a medical cannabis law that had large sections line-item vetoed by Gov. Gregoire after she received letters from U.S. attorneys’ offices warning her that state employees would be at risk of federal prosecution.
When asked if a public employee has ever actually been federally prosecuted for approving of activity legal under state law, but prohibited under federal law, Langlie said she did not know of any.
WHEN PROSECUTOR’S WILL PRESS CHARGES
Both the DEA and the justice department have adopted policies regarding medical marijuana that only individuals who violate both state and federal law will be prosecuted. This is similar to the stance taken by the King County Prosecutor’s Office.
U.S. Attorney Jenny A. Durkan wrote in a statement, “State law cannot change federal criminal law, or grant immunity to anyone from federal action. Still, in every area we prosecute, our office works to focus our limited resources on impactful cases that implicate an important national or community interest. In the area of marijuana drug prosecutions, this means our targets include organized criminal groups, those who abuse public or tribal lands, people who commercialize the marijuana trade for profit or use it to finance other criminal activity, and doctors who abuse their positions and fraudulently certify individuals as medical marijuana patients. We have not prosecuted truly ill people or their doctors for using marijuana to lessen suffering, as permitted under state law.”
A DEA statement on department guidelines, dated Oct. 22, 2009, reads “It is not the practice or policy of DEA to target individuals with serious medical conditions who comply with state laws authorizing the use of marijuana for medicinal purposes.”
In 2009, David Ogden, then the deputy attorney general for the Justice Department, released a memo that stated medical marijuana violations in states which have legalized it were a low priority for law enforcement and prosecutors.
“As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” the memo stated. “For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”
In July 2011, however, Deputy Attorney General James M. Cole sent a memo to the DEA Administrator Michele M. Leonhart stating, “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act (CSA), regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.”
Washington Medical Cannabis Law Section 69.51A.140
Counties, cities, towns — Authority to adopt and enforce requirements.
(Note: all provisions relating to licensing of dispensaries was line-item vetoed).
(1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes.
Nothing in chapter 181, Laws of 2011 is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers.
(2) Counties may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction in locations outside of the corporate limits of any city or town: Zoning requirements, business licensing requirements, and health and safety requirements.
Nothing in chapter 181, Laws of 2011 is intended to limit the authority of counties to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers.
