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Municipal Research News - Update: Medical Cannabis
Update: Medical Cannabis
Now that the dust has settled, many questions regarding medical cannabis have been resolved, but new questions have been posed. This paper will provide an overview of medical cannabis in the workplace and local government regulatory issues.
Workplace Issues
Following the Washington State Supreme Court's decision in Roe v. TeleTech,1 the door has been closed on claims that an employer must accommodate medical cannabis usage by its employees. The case involved an employee who had been given a conditional offer of employment, subject to passage of a pre-employment drug test. The employee had a medical marijuana recommendation to alleviate pain from migraine headaches. She was discharged following a positive drug test.
In an 8 to 1 decision, the state supreme court placed Washington in alignment with decisions in California and Michigan finding that employers do not have an obligation to accommodate medical cannabis usage. The supreme court rejected claims of protections, both under the Medical Use of Marijuana Act (MUMA), Chapter 69.51A RCW, and on public policy grounds. Utilizing the special rules of construction applicable to initiatives, the court found that the "average informed voter voting on the initiative" would not have been informed of an intent to create an employment right. The court examined the 2007 amendments to RCW 69.51A.060(4), which added the phrase "on site" to MUMA's existing requirement that employers need not accommodate medical marijuana use, and found that the language was "… redundant because the section already expressly disavowed any accommodation obligation in any place of employment."2
The court also found that MUMA does not imply a civil remedy, noting:
There is no evidence voters intended MUMA to provide employment protections or to prohibit an employer from discharging an employee for medical marijuana use. Further implying a cause of action against a private entity is inconsistent with the statutory scheme intended to provide an affirmative defense to state criminal prosecution.3
The supreme court quickly dispensed with a public policy cause of action claim based on:
- a finding that MUMA did not proclaim a clear public policy against discharge for medical cannabis use;
- the initiative's only reference to the employment setting was an explicit statement against requiring accommodation of medical marijuana use; and
- a finding that no broad public policy existed that would remove all impediments to authorized medical marijuana use, citing both the illegality of medical marijuana use under federal law and an opinion letter of the Washington State Human Rights Commission acknowledging that it is not a reasonable accommodation under the Washington Law Against Discrimination to accommodate medical marijuana use in light of federal law.4
The supreme court firmly closed the door on accommodation of medical cannabis use in the workplace.
Public employers should note that Washington law restricts pre-employment and random testing of public employees under the Washington state constitution.5 Public employers may conduct pre-employment testing only where a clear public safety concern exists. Post-employment drug testing must be based upon a reasonable suspicion.
Public employers may maintain a drug-free workplace under both state and federal law.6 The recent amendment of Chapter 69.51A RCW expressly permits employers to maintain drug-free workplaces. Public employers should be careful that they comply with all the technical provisions of the federal Drug-Free Workplace Act, including notification of employees. Please note that nothing in the Drug-Free Workplace Act requires a public employer to discharge an employee, but rather only requires that a public employer take "appropriate personnel action against such employee up to and including termination…."7
Public employers can additionally rely on Commercial Driver's License (CDL) regulations. Since federal law classifies marijuana as a Schedule I drug under the Controlled Substances Act, that is, a drug without a legitimate medical use, federal law does not recognize any medical use of cannabis.8 Therefore, federal regulations provide that the medical professionals who review drug test results are not to verify a test as negative based upon a physician recommendation for medical cannabis usage,9 and substance abuse professionals engaged in the return-to-work process may not take into account medical marijuana authorization.10
Local Regulation of Ganjapreneurs
Following the legislative sessions and the Governor's veto, dispensaries are no longer legally viable business enterprises. The revisions to Chapter 69.51A RCW require that qualified providers wait 15 days following the termination of provision of service to one qualified patient before providing medical marijuana to another qualified patient. From a practical point of view, dispensaries can only serve two patients a month, and the door has been closed to this lucrative aspect of the industry. Local governments11 may clearly deny a business license to a dispensary.12 In an interesting twist, the Governor's veto of provisions regulating and legitimizing dispensaries and cannabis processors left collective gardens as the only remaining alternative to a patient growing his or her own cannabis.
Section 403 of the bill provides that qualifying patients may create and participate in collective gardens to produce, process, transport, and deliver cannabis for medical use. The provision for collective gardens was first introduced by law enforcement entities as an alternative to dispensaries. Collective gardens are permitted subject to the following conditions:
- No more than ten qualifying patients may participate in a single collective garden at any time;
- A collective garden may contain no more than 15 plants per patient up to a total of 45 plants;
- A collective garden may contain no more than 24 ounces of usable cannabis per patient up to a total of 72 ounces;
- A copy of each qualifying patient's valid documentation, including a copy of the patient's proof of identity, must be available at all times on the premises of the collective garden; and
- No usable cannabis from the collective garden may be delivered to anyone other than one of the qualifying patients participating in the collective garden.
Patients participating in the collective garden share responsibility for acquiring and supplying the resources, including, for example, the location for the garden, equipment, supplies, and the labor necessary to plant, grow, and harvest cannabis as well as process the plants.
NOTE OF CAUTION: The loophole which the legislature closed with regard to dispensaries was left open with regard to gardens – no timeframe is specified regarding when the ten patients may be involved in a garden at the same time. Ganjapreneurs are already floating the concept that participants may come and go from a garden in the same way that different and successive patients were served by dispensaries. Local governments should assess the use of distancing requirements and other regulatory measures to ensure that multiple collective gardens do not use a common "distribution" point, i.e., rebrand themselves a collective garden.
Options and Considerations for Medical Cannabis
A. Dispensaries
Local governments may clearly deny business licenses, building permits, or other land use permits for dispensaries to operate in your jurisdiction. Most likely your current business license and land use regulations require a business to comply with state and/or federal law. As part of an internal review, your jurisdiction should confirm whether that is true.
Local governments may also choose, as a matter of discretionary allocation of police, prosecutorial, and other resources, to make prosecution of dispensaries a low priority. Passing legislation to permit dispensaries could expose a local government to the same legal liability for federal prosecution that Governor Gregoire cited in vetoing the majority of ESSB 5073.
A local legislative body declining to exercise its discretion to initiate civil litigation to stop the operation of dispensaries, or prosecutors who choose not to vigorously prosecute violations of state law by dispensaries, are taking the approach utilized by the U.S. Attorneys' offices, as well as prosecutors such as Dan Satterburg of King County. If prosecution is made a low priority, your local government should also consider whether to conduct building inspections (and collect fees for such inspections) and/or tax medical cannabis dispensaries. The greater the involvement of a local government, the greater the (theoretical) risk of prosecution by the federal government. Ignoring dispensaries entirely and permitting them to flourish creates a difficult policy conundrum. Should an illegal business be given greater latitude to operate than legitimate businesses?
B. Collective Gardens
Local governments have a number of options with regards to collective gardens:
- Allow without Regulations. Few, if any, local governments regulate small scale gardening in residential and other neighborhoods. In all likelihood, collective gardens, both due to climate and security considerations, will be conducted indoors. Declining to regulate would be consistent with the general approach regarding gardening in general. However, a local government should note that if zoning regulations are not enacted, collective gardens could be located next to each other, whether outdoors or in commercial spaces such as warehouses, large greenhouses, or storage facilities. The "condominiumized" approach to collective gardens raises concerns regarding increased crime or other threats to public safety, but the decision to regulate collective gardens by zoning or health and safety regulations is well within the legislative body's discretion. Without any local regulations, dispensaries are likely to "rebrand" their operations and continue as distribution sites for collective gardens.
- Allow with Regulations. Since collective gardens will be the only legal way for many qualified patients to obtain medical cannabis under state law, collective gardens could become popular in the near future. Many dispensaries will be "rebranding" themselves as collective gardens. Your legislative body may consider it prudent to impose zoning regulations relating to the location of collective gardens and spacing requirements between collective gardens (i.e., requiring either clustering or dispersement).
- Moratoria, Interim Ordinances, and the Risk/Cost of Litigation. If a legislative body desires to impose zoning regulations and require permits, the local government should evaluate whether to enact a moratorium or interim zoning regulations.
Because Section 403 of ESSB 5073 expressly permits the formation of collective gardens under state law, there is an issue of whether local governments are preempted from prohibiting collective gardens. As an alternative to a moratorium, which would put your local government at risk of litigation from the well-financed industry, you should discuss with your attorney whether an interim zoning ordinance imposing regulations, such as dispersement or clustering, is advisable. Building officials may also be tasked to prepare an analysis of the inspection fees that should be charged to inspect premises used for collective gardens.
- Prohibition. An open question is whether a local government can legally prohibit collective gardens entirely. Section 1102's language limits local government zoning powers to preclude siting only to licensed dispensers (previously vetoed by the Governor), which suggests that a local government most likely could prohibit collective gardens altogether pursuant to its inherent police powers. However, Section 403 expressed permission to form collective gardens, which raises the issue of whether local governments are preempted from prohibiting such gardens. If your local government intends to prohibit collective gardens, you should consult with your attorney regarding the issue. Given the profits inherent in the industry,13 as well as the participation of the American Civil Liberties Union and other groups, some local government will likely litigate the issue. The cost of litigating this issue potentially to the state supreme court, particularly given the likelihood that this issue will be considered repeatedly in upcoming legislative sessions, makes a close risk management assessment important for your community.
Conclusion
State law regarding medical cannabis is likely to change in the near future. Senator Jeanne Kohl-Welles has indicated she will continue to work on the issue prior to next year's legislative session. In addition, a medical marijuana advocacy group filed a referendum to overturn ESSB 5073 and another advocacy group has stated its intent to take a marijuana decriminalization effort to the legislature in the upcoming session. This is a rapidly evolving landscape – stay tuned?
Footnotes
1Roe v. TeleTech Customer Care Management (Colorado) LLC, 171 Wn.2d 736 (2011).
2171 Wn.2d at 751.
3171 Wn.2d at 754, citing Thompson v. St. Regis Paper Company, 102 Wn.2d 219, 226, 685 P.2d 1081 (1984).
4171 Wn.2d at 759, n.9, citing Opinion Letter Laura Lindstrand, Washington State Human Rights Commission, Washington Nondiscrimination Laws and the Use of Medical Marijuana at 1 (June 7, 2011).
5Robinson v. Seattle, 102 Wash. App. 795, 10 P.3d. 452 (2000).
6Drug-Free Workplace Act, 41 U.S.C., § 701 et. seq.
741 U.S.C. § 703.
821 U.S.C. § 841(a)
949 C.F.R. 40.151(E)
1049 C.F.R. 40.293
11Cities and counties.
12RCW 35A.82.020 provides no license or permit to engage in any business shall be granted to any person who shall not first comply with the general laws of the State.
13The office of finance and management estimated that medical marijuana sales in Washington would reach $1 billion per year had ESSB 5073 gone into effect as enacted.
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