Two Views Of Personal Cultivation Of Cannabis: NORML Vs. LCB

By Bailey Hirschburg

The following is one section of a report presented by Washington NORML to the state’s Liquor and Cannabis Board (LCB) regarding their study of regulatory options for home growing. WA NORML’s full report, “Personal Cultivation of Cannabis: A look at policy alternatives” can be found here: (MJNN link to .pdf file “WA NORML Home Grow Report1”)

As written, none of the LCB options were practical or addressed the issue. Option 1, which requires a permit and plants to be in a state traceability system, with greater authority shared between the LCB and local authorities, and option 3, status quo home grow prohibition, are discussed further in the report.

This excerpt focuses on the questions the LCB encourages the public to address, option 2 “State Framework, local authority” and WA NORML’s revised “Civil Liberties Option, with State Framework & Local Authority.”

The LCB is taking public comment on three regulatory options, found here. Email your comments to rules@lcb.wa.govby October 11th to see they’re included in the study’s public response.

EXCERPT:

What cultivation policy is best for our state? On Sept. 13th, the LCB released a request for stakeholder input on three draft options for personal cultivation along with specific questions on a “Stakeholder Outreach Questionnaire.” Those questions were:

1. Which of the above options best protects the state under the Cole Memo from intervention by the federal government?

2. What resource impacts (work hours, costs, etc.), positive or negative, do you foresee for the regulatory options listed above?

3. What are the challenges or benefits (or both) associated with each of the regulatory options listed above?

4. Please provide any additional feedback you believe would be helpful to consider as part of this study.

This paper itself broadly addresses question #4. “Constitutional Concerns & The Cole Memo” addressed Question #1 specifically.  What follows are the three LCB options with answers to stakeholder questions #2 and #3, a revised Option 2, and evaluation of recent legislative bills on the issue.

2. State Framework, Local Authority

• Allow recreational home grows under a regulatory framework based on statewide standards set in statute, but authorized, controlled, and enforced by local jurisdictions (counties, cities).

• Include statutory requirements for security, preventing youth access, preventing diversion, etc. (Cole Memo).

• Require a permit to possess plants. Absent a permit, growing marijuana for any purpose is illegal.

• Limit of no more than 4 plants per household.

• Include a statutory provision to allow recreational growers to acquire plants from licensed producers so long as the person possesses a valid permit.

• Include a statutory provision that allows law enforcement to seize and destroy all plants possessed by a person if the person has more plants than the law allows.

• Include the same restrictions that apply to medical marijuana patients on processing marijuana in recreational home grows (no extraction with combustible materials. See WAC 314-55-430).

• The Legislature may choose to allow local jurisdictions to “opt-in” for or “opt-out” of allowing recreational home grows, similar to the approach the Legislature took with marijuana licenses and registered medical marijuana patient cooperative grows.

2. What resource impacts (work hours, costs, etc.), positive or negative, do you foresee for the regulatory options listed above? By losing individual plant tracking and deferring to local authorities while giving them a clear “opt in/out” option the state shifts some costs (except for permitting) from option 1 somewhat or largely over to local authorities.

3. What are the challenges or benefits (or both) associated with each of the regulatory options listed above? This gives local governments too much control over residents’ private affairs. Similar to the challenges to option 1: fair enforcement, securing citizen information, legal challenges against a commercial regulator doing residential policing or civil suits on biased, aggressive, or improper enforcement. Like Option 1, this regulates recreational grows more strictly than medical grows. This option is also susceptible to claims that it unjustly limits civil liberties by allowing jurisdictions to opt in or out of honoring them.

Revised Option 2. Civil Liberties Option, with State Framework & Local Authority

• Allow recreational home grows with restrictions based on statewide standards set in statute, but controlled and enforced by local jurisdictions (counties, cities).

• Limit of no more than 15 plants per household.

• Maintain existing statutory requirements and penalties for public use, youth access, unlicensed sales, preventing diversion, etc.

• Include a statutory provision to allow recreational growers to acquire plants from licensed producers, and allowing accredited testing laboratories to contract with adults over 21 directly to have recreational home grow samples tested.

• Include a statutory provision that allows law enforcement to seize and destroy any plants possessed by a person beyond established limits.

• Include the same restrictions that apply to medical marijuana patients on processing marijuana in recreational home grows (no extraction with combustible materials. See WAC 314-55-430). Clearly establish that authorized and registered medical marijuana patient grows and registered cooperative medical marijuana grows are separate from any recreational home grow limits.

• The Legislature may choose to allow local jurisdictions to “opt-in” for or “opt-out” of allowing outdoor home grows plainly visible from public or federal properties.

2. What resource impacts (work hours, costs, etc.), positive or negative, do you foresee for the regulatory options listed above? Significantly less costs than any LCB option. Minor retraining for producers or retailers selling seeds/clones. Updated rules for law enforcement, traceability system requirements, and regular zoning issues for local jurisdictions. Eventual savings or revenue from seed/clone sales, ancillary products/services, and increasing effectiveness of eradication efforts.

3. What are the challenges or benefits (or both) associated with each of the regulatory options listed above? Increased tracking of sales and distribution to estimate home grow markets. Distinguishing between medical and recreational gardens. Outdoor zoning may impact property values based on preferred outdoor growing options. More testing of home grown samples, and judicious use of enforcement by not expecting a single extra plant to warrant removal of a person’s entire garden. This regulates recreational growing on a similar scale to medical growing.

Personal Cultivation Of Cannabis: Constitutional Concerns And The Cole Memo

By Bailey Hirschburg

The following is one section of a report presented by Washington NORML to the state’s Liquor and Cannabis Board (LCB) regarding their study of regulatory options for home growing. WA NORML’s full report, “Personal Cultivation of Cannabis: A look at policy alternatives” can be found here:

The study was mandated by recently by law (SB5131), and directs a “study of regulatory options for the legalization of marijuana plant possession and cultivation” by the LCB, directing the use of guidelines from a 2013 Department of Justice memorandum outlining federal expectations of state-legal marijuana policies as a guide. Written by then-deputy Attorney General James Cole, this document is widely referred to as the “Cole Memo.”

The LCB is taking public comment on their regulatory options, found here . Email your comments to rules@lcb.wa.govby October 11th to see they’re included in the study’s public response.

EXCERPT:

When Washington legalized adult possession in 2012 through I-502, only the state of Alaska had any decriminalization of personal cultivation. Today, seven states have as well as the District of Columbia have legalized not just possession and use, but some form of cultivation. All are been treated as complying with the Cole Memo, meaning a compliant policy is not only feasible, but common.

Many of the Cole Memo’s priorities are sensible and existed in the intent and language of Washington’s legalization initiative before the memo was issued, including prohibiting access to minors, stringently regulating impaired driving, and studying legalization’s social impacts. However, basing state law on this document over other arguments is untenable. It clearly reads: “This memorandum is not intended, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” The Washington State Senate Committee Services’ published guide to legislators fails to directly address this statement in it’s summary of the Cole Memo. Combined with the abnormal size of SB5131, this means some lawmakers may not have been clear on the risks inherent in basing a study about rights on a non-binding opinion of commercial markets.

Furthermore, the memo offers a relevant example of where state enforcement typically supersedes federal action. “the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.”

The Cole Memo aside, a simple argument for allowing home growing is found in Washington’s Constitution “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington Supreme Court Associate Chief Justice Charles W. Johnson noted “The broad language in article I, section 7 will always require that official interferences with the private affairs of residents are governed by precise and predetermined legal principles. But by allowing for disturbances made with the authority of law, the framers also allowed future generations to play a role in shaping their privacy rights, provided the relevant constitutional limitations are respected.”

This right to privacy is woven into our civic fabric, and fairly extends to a plant adults can and do possess in homes across the state. The scent or appearance of marijuana is no longer a crime, and the state lacks a compelling interest in policing small gardens. The cultivation and use of cannabis doesn’t damage or block another’s rights. The state can only continue this practice with a clear explanation of why constitutional law allows this authority.

The Cole Memo guidelines are largely sensible, and based on the priorities of I-502. Some sections discuss specific issues in depth, but most would not be impacted by legal home growing. As of September 2017, those guidelines are:

1. Preventing distribution to minors. (Included in I-502, see “Impact on Youth”)

2. Preventing the revenue from going to criminal enterprises, gangs and cartels. (Included in I-502, see “Intent of I-502”)

3. Preventing the diversion of marijuana from states where it is legal to other states. (Not addressed in I-502. (Home growing poses minimal threat due to the costs in transporting and risks for arrest in distributing. Though law enforcement typically calculates seized marijuana value on final street price per individual sale, growers not distributing themselves often sell in less-profitable wholesale price. See “Academic Findings on Personal Cultivation”)

4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity. (Not addressed in I-502. Because the sight and smell of marijuana is no longer a crime, nor are cooperative or medical marijuana grows, this will be an issue of concern regardless of legalization of home grows. However, clear guidelines for police and the public assists in focusing investigatory resources on active threats to the guidelines. See “Marijuana Legalization and Nosy Neighbor States”)

5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana. (Not addressed in I-502. If all adults can grow cannabis in private it will reduce the likelihood of violent crime in/around marijuana licensees or currently illegal personal cultivation sites.)

6. Preventing drugged driving and other adverse public health consequences associated with marijuana use. (Included in I-502 in the form of revenue directed to public education and research. Home grows offer a source of safe cannabis that doesn’t require driving after purchase of a seed/plant clone. Rates of impaired driving have never been examined based on a consumer’s sourcing of cannabis.)

7. Preventing the growing of marijuana on public lands and the environmental dangers posed by marijuana production on public lands. (Included in I-502, Washington state continues to receive marijuana eradication funding from the DEA. By licensing production and processing Washington continues to focus on larger-scale, criminally organized public grows. Cultivating fewer than 20 plants on public lands is not common, but risk of arrest means those growing for themselves are motivated to do so away from their own property. See “Impact on Law Enforcement” & “Impact on Other Issues”)

8. Preventing marijuana possession or use on federal property. (Included in I-502, as the initiative highlighted the difference between federal and state laws and created appropriate areas of possession and use it made the risk of possession or use on federal property less appealing. Home growing continues that trend.)

Finally, even with the best of intentions, legal challenges to a law based on a memorandum is potentially fatal to an entire law. It’s unclear if the state could even show the memo as evidential in court.