Cannabis Action Council v. City of Kent

/ Fl L E
IN CLERICS OFFICE
. . . . . . COURT, STAn OF WASH!NtlTON
This opinion was flied for record
OA7E MAY 2 1 2015 at B 90 AXxJ on t5
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JUS I
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CANNABIS ACTION COALITION,
ARTHUR WEST, DAVID HALLIN,
Plaintiffs,
NO. 90204-6
STEVE SARICH, JOHN
WORTHINGTON, and DERYCK
TSANG,
Petitioners, ENBANC
v.
CITY OF KENT, a local municipal MAY 2 1 2015
corporation, KENT CITY COUNCIL, Filed - - -----
KENT MAYOR, STATE OF
WASHINGTON,
Respondents.
STEPHENS, J.-Under the Washington State Medical Use of Cannabis Act
(MUCA), chapter 69.51A RCW, qualifying patients may participate in "collective
gardens" to pool resources and grow medical marijuana for their own use. RCW
Cannabis Action Coal. v. City ofKent, 90204-6
69.51A.085(1). 1 However, MUCA grants cities and towns the power to zone the
"production, processing, or dispensing" of medical marijuana. RCW
69.51A.l40(1). Given this state law, the city of Kent enacted a zoning ordinance
that prohibits collective gardens within its city limits. City of Kent Ordinance 4036
(June 5, 2012) (codified at KENT CITY CoDE 15.02.074, 15.08.290) (Ordinance).
This case requires us to determine whether MUCA preempts the Ordinance.
We hold it does not and affirm the Court of Appeals. The Ordinance is a valid
exercise of the city of Kent's zoning authority recognized in RCW 69.51A.l40(1)
because the Ordinance merely regulates land use activity.
I. BACKGROUND
A
In 1971, the Washington Legislature enacted the Uniform Controlled
Substances Act, chapter 69.50 RCW. That statute made it a crime to manufacture,
deliver, and possess marijuana. RCW 69.50.401-.445. The same activities are
criminalized under federal law. 21 U.S.C. ch. 13. But Washington has had
subsequent legal developments concerning medical marijuana and recreational
marijuana. In 1998, the people adopted Initiative 692, LAWS OF 1999, ch. 2, to
provide protections for medical marijuana use. And in 2012, the people adopted
Initiative 502, LAWS OF 2013, ch. 3, to create a system for the licensed distribution
1
While this appeal was pending, the legislature enacted comprehensive reform
concerning the regulation of medical marijuana in Washington. LAWS OF 2015, ch. 70.
That new law repeals the two statutory provisions at issue in this case. See id. § 48
(repealing RCW 69.51A.140), § 49 (repealing RCW 69.51A.085). This opinion concerns
the law as it existed prior to the 2015 enactment. All references to statutes in this opinion
refer to the statutes as they existed prior to the 2015 enactment.
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Cannabis Action Coal. v. City ofKent, 90204-6
of recreational marijuana and to legalize the possession of marijuana in certain
circumstances. See RCW 69.50.4013(3). Initiative 502 is not relevant to this case
because no party seeks to produce marijuana pursuant to a recreational marijuana
producer's license. See RCW 59.50.325(1). This case concerns Washington's
medical marijuana system.
Washington's medical marlJuana system is codified as MUCA, chapter
69.51A RCW. Initially~ the statute provided qualifying medical marijuana users an
affirmative defense to criminal prosecutions. Former RCW 69.51A.040(2)-(3)
(20 10). That defense was satisfied upon compliance with the terms of the chapter,
such as meeting the definition of being a "qualifying patient," having "valid
documentation" from a "health care professional," having the appropriate quantity
of marijuana, and satisfying other conditions. Id.; former RCW 69.51A.010(2)
(2010).
The legislature amended MUCA in 2011. See LAws OF 2011, ch. 181. But
the bill the legislature passed differs significantly from the enacted law because
Governor Gregoire vetoed 36 of the bill's 58 sections. See id. at 13 74-7 6 (governor's
veto message). As passed by the legislature, the bill would have created a
comprehensive regulatory scheme under which all patients, physicians, processors,
producers, and dispensers could be securely and confidentially registered in a
database maintained by the Washington Department of Health. See id. § 901 (later
vetoed). Registration would have been optional. Id. § 901(6) (later vetoed). If a
patient registered, the patient would not be subject to state prosecution or civil
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Cannabis Action Coal. v. City of Kent, 90204-6
consequences for marijuana-related offenses. Id. § 401 (codified at RCW
69.51A.040). But if the patient did not register, the patient would be entitled to only
an affirmative defense to marijuana prosecutions. !d. § 402 (codified at RCW
69.51A.043).
In addition to the registration system, the bill authorized collective gardens
and clarified that local jurisdictions retain their zoning power over medical
marijuana activities. Under the bill, qualifying patients could establish collective
gardens for the purpose of growing medical marijuana for personal use. Jd. § 403
(codified at RCW 69.51A.085). Participating in a collective garden involves
"sharing responsibility for acquiring and supplying the resources required to produce
and process cannabis for medical use," such as by providing real estate, equipment,
supplies, or labor for the collective garden. !d. § 403(2) (codified at RCW
69.51A.085(2)). Last, the bill clarified that local governments retain authority to
regulate the production, processing, or dispensing of medical marijuana through
zoning, business licensing, health and safety requirements, and business taxes. !d. §
1102 (codified at RCW 69.51A.140).
After the legislature passed the bill and sent it to Governor Gregoire for her
approval, the United States attorneys for the Eastern and Western Districts of
Washington wrote the governor a letter. It warned that the legislature's bill
authorized conduct illegal under federal law, noted that Washington State employees
who administered the registry would not be immune from federal prosecution, and
threatened such prosecution. Cannabis Action Coal. v. City ofKent, 180 Wn. App.
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Cannabis Action Coal. v. City of Kent, 90204-6
455, 464, 322 P.3d 1246 (2014). Governor Gregoire vetoed all of the bill's sections
that could have subjected state employees to federal charges, most importantly the
establishment of the bill's centerpiece, the registration system. She did not veto the
provision concerning collective gardens, RCW 69.51A.085, or the provision
concerning local zoning requirements, RCW 69.51A.l40. She explained her
decision in an official veto message. LAWS OF 2011, ch. 181, at 13 74-7 6.
Against this state law backdrop, in 2012 the city of Kent enacted the
Ordinance at issue. Styled as a zoning ordinance, it prohibits collective gardens
(largely as defined in RCW 69.51A.085) in every zoning district within the city and
deems any violation a nuisance per se that shall be abated by the city attorney. KENT
CITY CODE 15.02.074, 15.08.290. The city may enforce the Ordinance with criminal
and civil sanctions. Id. ch. 1.04.
B
The Cannabis Action Coalition, Steve Sarich, Arthur West, John
Worthington, and Deryck Tsang (collectively plaintiffs) sued the city of Kent, its
city council, and its mayor Suzette Cook (collectively Kent) in King County
Superior Court, seeking to have the Ordinance declared preempted and invalid. On
competing motions for summary judgment, the superior court ruled in Kent's favor
and upheld the Ordinance. It also dismissed the claims of Sarich, West, and
Worthington for lack of standing because these plaintiffs did not reside or operate a
collective garden in the city of Kent. The court determined that Tsang had standing
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Cannabis Action Coal. v. City of Kent, 90204-6
because he currently participates in a collective garden in the city of Kent's limits.
The court enjoined all plaintiffs from violating the Ordinance.
Sarich, Worthington, and Tsang appealed. Recognizing that Tsang's standing
to appeal was never in doubt, the Court of Appeals held that Sarich and Worthington
also had standing to appeal because they were burdened by the trial court's
injunction prohibiting them from violating the Ordinance. Cannabis Action Coal.,
180 Wash. App. at 469 n.11. On the merits, the Court of Appeals affirmed the superior
court and held state law does not preempt the Ordinance. Id. at 469-83. We granted
the plaintiffs' petitions for review. Cannabis Action Coal. v. City of Kent, 181
Wash. 2d 1022, 336 P.3d 1165 (2014).
II. ANALYSIS
A
The Washington constitution grants every local government the power to
"make and enforce within its limits all such local police, sanitary and other
regulations as are not in conflict with general laws." WASH. CONST. art. XI, § 11.
This court has established that an ordinance is valid under this provision "unless: (1)
the Ordinance conflicts with some general law; (2) the Ordinance is not a reasonable
exercise of the [local government's] police power; or (3) the subject matter of the
Ordinance is not local." Weden v. San Juan County, 135 Wash. 2d 678, 692-93, 958
P.2d 273 (1998). Under this test, "a heavy burden rests upon the party challenging
[the ordinance's] constitutionality" and '"[e]very presumption will be in favor of
constitutionality."' HJS Dev., Inc. v. Pierce County, 148 Wash. 2d 451, 477, 61 P.3d
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Cannabis Action Coal. v. City of Kent, 90204-6
1141 (2003) (quoting Lenci v. City of Seattle, 63 Wash. 2d 664, 668, 388 P.2d 926
(1964)). "Whether an ordinance is reasonable, local, or conflicts with a general law
for purposes of article XI, section 11 is purely a question of law subject to de novo
review." Weden, 135 Wash. 2d at 693.
The plaintiffs do not contend that the Ordinance is unreasonable or nonlocal.
They contend only that MUCA is a general law in conflict with the Ordinance-i.e.,
that MUCA preempts the Ordinance. A state statute may preempt a local ordinance
in two ways: it will "preempt[] an ordinance on the same subject if the statute
occupies the field, leaving no room for concurrent jurisdiction, or if a conflict exists
such that the statute and the ordinance may not be harmonized." Lawson v. City of
Pasco, 168 Wash. 2d 675, 679, 230 P.3d 1038 (2010).
B
A statute preempts the field and invalidates a local ordinance within that field
"if there is express legislative intent to preempt the field or if such intent is
necessarily implied . . . from the purpose of the statute and the facts and
circumstances under which it was intended to operate." Id. Because MUCA has no
express preemption clause, we must consider whether field preemption is implied.
We have recognized that when a state statute expressly provides for local
jurisdiction over a subject, state law does not impliedly preempt the field of that
subject. In Lawson, we held the Manufactured/Mobile Home Landlord-Tenant Act
(MHLTA), chapter 59.20 RCW, did not preempt a local ordinance that prohibited
recreational vehicles in mobile home parks. Lawson, 168 Wash. 2d at 677. We
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Cannabis Action Coal. v. City of Kent, 90204-6
reasoned that the MHLTA did not preempt the field of manufactured/mobile home
regulations because "certain provisions of the MHLTA expressly contemplate some
local regulation of manufactured/mobile home tenancies." Id. at 680. Likewise
here, MUCA expressly contemplates local regulation of medical marijuana. It
provides that 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." RCW
69.51A.l40(1). Given this express state law recognition of local jurisdiction over
medical marijuana regulation, we must conclude that MUCA does not impliedly
preempt the field of medical marijuana. Lawson, 168 Wash. 2d at 680.
c
Under our conflict preemption precedents, a state law preempts a local
ordinance "when an ordinance permits what state law forbids or forbids what state
law permits." Id. at 682. We will find state law to preempt an ordinance only if the
ordinance '"directly and irreconcilably conflicts with the statute."' I d. (internal
quotation marks omitted) (quoting HJS Dev., Inc., 148 Wash. 2d at 482). Though the
rule may be easily stated, the analysis is often nuanced. Compare, e.g., Entm 't Indus.
Coal. v. Tacoma-Pierce County Health Dep 't, 153 Wash. 2d 657, 105 P.3d 985 (2005),
and Parkland Light & Water Co. v. Tacoma-Pierce County Bd. ofHealth, 151 Wash. 2d
428, 90 P.3d 37 (2004); with Lawson, 168 Wash. 2d 675, and Weden, 135 Wash. 2d 678.
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Cannabis Action Coal. v. City ofKent, 90204-6
Whether MUCA conflicts with the Ordinance turns on the scope of Kent's
power to zone medical marijuana activities under RCW 69.51A.l40(1). Kent argues
RCW 69.51A.l40(1) authorizes the Ordinance because the Ordinance is a zoning
regulation of "the production, processing, or dispensing" of medical marijuana. The
plaintiffs respond that RCW 69.51A.l40(1) is irrelevant to collective gardens
because RCW 69.51A.l40(1) applies only to "commercial producers, processors~ or
dispensaries that would have been licensed under the proposed regulatory scheme."
Tsang's Suppl. Br. at 17. Thus, in the plaintiffs' view, MUCA irreconcilably
conflicts with the Ordinance because MUCA grants a right to engage in a collective
garden under RCW 69.51A.085, yet the Ordinance prohibits the same activity.
Ultimately, Kent is correct. A city's zoning power under RCW 69.51A.l40(1) is not
limited to commercial, licensed producers. RCW 69.51A.140(l)'s plain text, and its
statutory context, demonstrate that it provides local jurisdictions the authority to
enact zoning requirements pertaining to the land use activity of participating in a
collective garden.
RCW 69 .51A.140(1) 's relevant text draws no distinction between commercial
and noncommercial operations. Its terms are undefined, so we give them their plain
and ordinary meaning. Ravenscroft v. Wash. Water Power Co., 136 Wash. 2d 911,
920-21, 969 P.2d 75 (1998). The plain and ordinary meaning of RCW
69.51A.l40(l)'s provision that a city may adopt zoning requirements for the
"production, processing, or dispensing" of medical marijuana provides no reason to
limit these concepts to only commercial activities. See WEBSTER's THIRD NEW
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Cannabis Action Coal. v. City of Kent, 90204-6
INTERNATIONAL DICTIONARY 653 (2002) (defining "dispense" to include "to deal out
in portions : DISTRIBUTE, GIVE, PROVIDE"; "to deal with : HANDLE"; and "to prepare
and distribute (medicines) to the sick"); id. at 1808 (defining "process" to include
"to subject to a particular method, system, or technique of preparation, handling, or
other treatment designed to effect a particular result"), 1810 (defining "produce" to
include "to ... create, or bring out by intellectual or physical effort"). No doubt,
these words can carry a commercial meaning, but they can also carry the broader
meanings quoted above. Because the legislature choose to use these capacious
words without providing textual limitations to them, such as "commercial
production" or "licensed production," we give effect to the broad meaning of the
words chosen. Someone growing medical marijuana in a collective garden
"produc[es]," "process[es]," and "dispens[es]" (RCW 69.51A.140(1)) medical
marijuana just the same as someone in a commercial operation does, albeit not to
seek a profit but rather to grow, share, and use the marijuana within the small
community of collective garden participants. 2
2
Though vetoed by Governor Gregoire, the legislature's original bill defined
"dispense," "process," and "produce" in their broadest sense. See LAws OF 2011, ch. 181,
§ 201(8), (21), (23); id. ch. 181, at 1374 (governor's veto message). The vetoed definition
of "process" ("to handle or process· cannabis in preparation for medical use") and of
"produce" ("to plant, grow, or harvest cannabis for medical use") plainly are not limited to
a commercial context. Id. § 201(21), (23). And the vetoed definition of"dispense" ("the
selection, measuring, packaging, labeling, delivery, or retail sale of cannabis by a licensed
dispenser to a qualifying patient or designated provider") also includes various activities
that occur in the noncommercial context of a collective garden, for example measuring and
packaging marijuana. Id. § 201(8). Moreover, its definition expressly uses "licensed
dispensers" as a modifier of only one meaning of "dispense," not the others. Id.
Nonetheless, we need not and cannot rely on these definitions because upon being vetoed,
they '"now mean[] nothing whatsoever. In exercising the veto power, the governor acts as
a part of the legislative bodies, and the act is to be considered now just as it would have
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Cannabis Action Coal. v. City ofKent, 90204-6
Indeed, elsewhere RCW 69.51A.l40(1) does distinguish between licensed
and nonlicensed producers. In a later sentence not directly at issue here, RCW
69.51A.l40(1) provides that a city's zoning requirements cannot "preclude the
possibility of siting licensed dispensers within the jurisdiction." RCW
69.51A.l40(1) (emphasis added). Yet RCW 69.51A.140(1)'s first sentence, which
is at issue in this case, makes no limitation that a city's zoning requirements
pertaining to the "production, processing, or dispensing" of medical marijuana must
be limited to only "licensed dispensers." Where the language of a statute differs, we
presume the difference is intentional and give the difference effect. State v. Tracer,
173 Wash. 2d 708, 718, 272 P.3d 199 (2012). Accordingly, the statute's first sentence
is not limited to zoning requirements over only licensed producers. 3
been if the vetoed provisions had never been written into the bill at any stage of the
proceedings."' Hallin v. Trent, 94 Wash. 2d 671, 677, 619 P.2d 357 (1980) (quoting State ex
rel. Stiner v. Yelle, 174 Wash. 402, 408, 25 P.3d 91 (1933)).
3
As Governor Gregoire noted in her veto statement, it appears true that RCW
69.51A.140(1)'s second sentence-i.e., that zoning requirements cannot preclude the
possibility of licensed dispensers within the jurisdiction-is "without meaning in light of
the vetoes of sections providing for such licensed dispensers." LAWS OF 2011, ch. 181, at
1375. Nonetheless, the governor's choice to not veto the entire section of RCW
69 .51A.140 signifies that she intended the remaining portions to retain their natural effect.
Contrary to the plaintiffs' view that the entirety of RCW 69.51A.140 "is an orphaned
section without effect," Tsang's Suppl. Br. at 17, we will not interpret the rest of the section
in a manner that renders it superfluous, In re Pers. Restraint ofMcWilliams, 182 Wash. 2d
213, 217, 340 P.3d 223 (2014). In other words, had Governor Gregoire intended that a
local jurisdiction's zoning power cover only licensed operations and not cover nonlicensed
collective gardens, she simply would have vetoed the entire section. But she did not do so,
demonstrating that she intended local jurisdictions to have the power to zone nonlicensed
medical marijuana land uses. Indeed, elsewhere in her veto statement, Governor Gregoire
endorsed local zoning of medical marijuana. LAws OF 20 11, ch. 181, at 13 76 (stating she
remains open to new exemptions from state prosecutions, "conditioned on compliance with
local government location and health and safety spec~fications" (emphasis added)).
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Cannabis Action Coal. v. City ofKent, 90204-6
The statutory context also refutes the plaintiffs' contention that a city's zoning
powers under RCW 69.51A.l40(1) do not include imposing zoning requirements for
collective gardens. Under MUCA, a collective garden exists when individuals
"participate in collective gardens for the purpose of producing, processing,
transporting, and delivering cannabis for medical use." RCW 69.51A.085(1)
(emphasis added). Thus, because RCW 69.51A.l40(1) authorizes a city to enact
zoning requirements pertaining to the "production" and the "processing" of medical
marijuana, and because collective gardens are defined to include "producing" and
"processing" medical marijuana, the statutory context strongly confirms that a city's
power under RCW 69.51 A.l40( 1) is not limited to commercial or licensed producers
but also includes noncommercial collective gardens. State v. Coley, 180 Wash. 2d 543,
553, 326 P.3d 702 (2014) (noting that we must consider the context of the statute,
related provisions, and the statutory scheme as a whole).
In sum, we reject the plaintiffs' argument that RCW 69.51A.140(1) reaches
only commercial activities. Instead, this provision recognizes that a city may enact
zoning requirements pertaining to all production, processing, and dispensing of
medical marijuana.
The remaining question is whether the Ordinance is otherwise consistent with
state law. Because the legislature ensured that cities have the power to adopt "zoning
requirements"-but did not grant carte blanche to opt out of all medical marijuana
activity-a city's ordinance under RCW 69.51A.l40(1) must concern a land use.
Here, the Ordinance does concern a land use. It adopts zoning requirements for "the
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Cannabis Action Coal. v. City ofKent, 90204-6
growing, production, processing, transportation, and delivery of cannabis" in a
collective garden, if seven conditions defining a collective garden are satisfied.
KENT CITY CODE 15.02.074, 15.08.290. As Kent concedes, the Ordinance does "not
address personal use of medical marijuana." Suppl. Br. of City ofKent at 4. Instead,
the Ordinance concerns only collective gardens wherein up to 10 individuals pool
resources to grow medical marijuana in potentially large operations of up to 45 plants
and 75 ounces of usable marijuana. KENT CITY CODE 15.02.074(A)-(C).4 Tsang
reports that his collective garden is "located within leased property at the north end
of ... an area zoned M1 for Industrial Park. The building is safe and secured with
24-hour video surveillance, alarm monitoring, electric striking door, and
neighbors ... a private security firm." Tsang's Pet. for Review at 6. Such an
operation to produce marijuana, potentially on a large scale, is a land use activity.
Accordingly, Kent has properly exercised its authority under RCW 69.51A.140(1)
to zone the land use activity involving collective gardens. The Ordinance is
consistent with state law and is not preempted.5
4
For example, the first condition in the Ordinance's definition of a "collective
garden" is that no more than 10 qualifying patients may participate in the collective garden.
KENT CITY CODE 15.02.074(A). If 11 qualifying patients were to participate in a collective
garden in the city of Kent, the Ordinance would not govern the activity. Thus, Kent
correctly concedes that in scenarios where the Ordinance's definition of a "collective
garden" is not met, only state law enforcement would be able to prosecute the activity (for
potentially exceeding RCW 69.51A.085's authorized definition of a "collective garden").
See Wash. Supreme Court Oral Argument, Sarich v. City of Kent, No. 90204-6 (Feb. 24,
2015), at 24 min., 26 sec. through 25 min. 3 sec., audio recording by TVW, Washington
State's Public Affairs Network, available at http://tvw.org.
5 For the same reasons we conclude that RCW 69.51A.l40(1) authorizes the
Ordinance, we reject the plaintiffs' argument that RCW 69.51A.085 grants a "stand-alone"
or "absolute" right to engage in a collective garden. Also given our conclusion under RCW
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Cannabis Action Coal. v. City ofKent, 90204-6
III. CONCLUSION
Consistent with RCW 69.51A.l40(1), a city may adopt zoning requirements
pertaining to the land use activity of collective gardens. The Ordinance falls within
this local authority and is not preempted by state law. We affirm the Court of
Appeals.
69.51A.l40(1), we need not determine here whether medical marijuana use is "illegal
subject to an affirmative defense" or is generally "legal" under state law.
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Sarich, et al. v. Kent, et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6
WE CONCUR:
..............-.....,
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Sarich, et al. v Kent, et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
No. 90204-6
GONZALEZ, J. (dissenting)-! agree with the majority that under the
Washington State Medical Use of Cannabis Act (MUCA), chapter 69.51A RCW, "a
city may enact zoning requirements pertaining to all production, processing, and
dispensing of medical marijuana." Majority at 12. But while a city may regulate
consistent with MUCA, it may not completely ban what the state permits. Since the
majority concludes otherwise, I respectfully dissent.
As the majority recognizes, "state law preempts a local ordinance 'when an
ordinance permits what state law forbids or forbids what state law permits.'" Majority
at 8 (quoting Lawson v. City ofPasco, 168 Wash. 2d 675, 682,230 P.3d 1038 (2010)).
The majority declines to determine whether participation in collective gardens is
'"llegal subject to an affirmative defense"' or is generally '"legal'" under state law.
Majority at 13 n.5. Instead, the majority holds that "[b]ecause the legislature ensured
that cities have the power to adopt 'zoning requirements'-but did not grant carte
blanche to opt out of all medical marijuana activity-a city's ordinance under RCW
69.51A.140(1) must concern a land use." Majority at 12. Finding that City of Kent
Ordinance 4036 (June 5, 2012) (codified at KENT CITY CODE 15.02.074, 15.08.290)
1
Sarich, et al. v Kent; et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
(Ordinance) concerns a land use, the majority deems the Ordinance constitutional. !d.
While the majority's sweeping analysis is logical, the simple fact is that this
Ordinance "forbids what state law permits." Lawson, 168 Wash. 2d at 682. While cities
may make zoning regulations that apply to collective gardens, completely prohibiting
state protections related to them, whether done directly or in the guise of a zoning
regulation, goes too far.
In cases in which the legislature intended to allow local governments to
completely prohibit activities allowed by the state, the legislature has been clear. See,
e.g., Edmonds Shopping Ctr. Assocs. v. City ofEdmonds, 117 Wash. App. 344, 356, 71
P.3d 233 (2003) (analyzing RCW 9.46.295, which allows local governments to
"absolutely prohibit" state-licensed gambling activities). Given that "'[e]very
presumption will be in favor of constitutionality'" of a local ordinance, MUCA's lack
of clarity on this issue is not dispositive here. HJS Dev., Inc. v. Pierce County, 148
Wash. 2d 451,477, 61 P.3d 1141 (2003) (quoting Lenci v. City of Seattle, 63 Wash. 2d 664,
668, 388 P.2d 926 (1964)). A further analysis shows, however, that the Ordinance is
nonetheless unconstitutional.
IfMUCA grants a right to participate in collective gardens, the Ordinance is
unconstitutional. A local ordinance is unconstitutional when state law specifically
entitles one to engage in an activity prohibited by the local ordinance. See Entm 't
Indus. Coal. v. Tacoma-Pierce County Health Dep 't, 153 Wash. 2d 657, 664, 105 P .3d
985 (2005) (finding that a local ordinance imposing a complete ban on smoking was
2
Sarich, eta!. v Kent, eta!. (Cannabis Action Coal., eta!. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
invalid because it "prohibits what is permitted by state law: the ability of certain
business owners and lessees to designate smoking and nonsmoking locations in their
establishments"); Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of
Health, 151 Wash. 2d 428, 433, 90 P.3d 37 (2004) (finding that a local ordinance
requiring water fluoridation "is a local regulation that prohibits what state law
permits: the ability of water districts to regulate the content and supply of their water
systems expressly granted to them by statute"). IfMUCA provides a right for people
to participate in collective gardens, the Ordinance improperly denies that right and
therefore is unconstitutional.
I recognize that generally, when the state creates a licensing system for
participation in an activity but does not provide an entitlement to engage in that
activity, a local ordinance may completely prohibit that activity. "The fact that an
activity may be licensed under state law does not lead to the conclusion that it must be
permitted under local law." Rabon v. City ofSeattle, 135 Wash. 2d 278, 292, 957 P.2d
621 (1998); see Weden v. San Juan County, 135 Wash. 2d 678, 958 P.2d 273 (1998). 1
For example, in State ex rei. Schill berg v. Everett District Justice Court, we found that
a county ordinance completely prohibiting the use of internal combustion motors on
certain lakes in the county did not irreconcilably conflict with a state statute setting
1
The Weden majority did not yield to the dissent's position that "[w]here a state statute licenses
a particular activity, counties may enact reasonable regulations of the licensed activity within
their borders but they may not prohibit same outright" because an ordinance banning the activity
"renders the state permit a license to do nothing at all." Weden, 135 Wash. 2d at 720, 722 (Sanders,
J., dissenting).
3
Sarich, et al. v Kent; et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
out licensing requirements for using internal combustion motors on lakes because the
statute did not provide that people are entitled to use internal combustion motors on
all waters ofthe state. 92 Wash. 2d 106, 108, 594 P.2d 448 (1979). Similarly, in Weden,
we found that a state statute setting forth license requirements for operating motorized
personal watercraft did not grant the right to operate such watercraft on all waters of
the state and, therefore, a county was able to completely prohibit the operation of such
watercraft in the county. 135 Wash. 2d at 694-95.
Unlike the licensing provisions at issue in Schillberg and Weden, however,
even ifMUCA provides only that participation in collective gardens is protected as an
affirmative defense, the affirmative defense is provided to all Washington citizens and
a local ordinance may not eliminate that protection. MUCA provides in relevant part
that
[a] qualifying patient or designated provider who is not registered with the
registry established in section 901 of this act, but who presents his or her valid
documentation to any peace officer who questions the patient or provider
regarding his or her medical use of cannabis, may assert an affirmative defense
to charges of violations of state law relating to cannabis ....
RCW 69.51A.043(2) (reviser's note omitted). Clearly participation in collective
gardens, addressed in RCW 69.51A.085, is one ofthe "violations of state law relating
to cannabis" protected by an affirmative defense in RCW 69.51A.043(2).
The City of Kent, its city council, and its mayor (collectively Kent) argue that,
as the Court of Appeals found, because medical marijuana is generally illegal under
state law, a city may entirely prohibit the activity because "[ w ]ithout question, a
4
Sarich, et a!. v Kent, eta!. (Cannabis Action Coal., eta!. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
municipality's plenary powers include the power to 'enact ordinances prohibiting and
punishing the same acts which constitute an offense under state laws."' Cannabis
Action Coal. v. City ofKent, 180 Wn. App. 455,482,322 P.3d 1246 (2014) (quoting
City ofBellingham v. Schampera, 57 Wash. 2d 106, 109, 356 P.2d 292 (1960) and citing
State v. Kirwin, 165 Wash. 2d 818, 826-27, 203 P.3d 1044 (2009)); see Suppl. Br. of
City of Kent at 7. Neither Schampera nor Kirwin address a local ordinance that
prohibits what is also an offense under state law but concurrently eliminates a state
law affirmative defense. Here, Kent intends to enforce the Ordinance with criminal
and civil sanctions and warned Deryck Tsang that it may "seek civil and/or criminal
remedies in the courts" in relation to his collective garden, without allowing the
MUCA affirmative defense to be raised. Clerk's Papers at 732-33; KENT CITY CODE
ch. 1.04. Furthermore, the Ordinance renders MUCA's affirmative defense to state
prosecution worthless because a collective garden participant who operates illegally
loses the protection of the affirmative defense and the Ordinance causes all collective
garden participation in the city of Kent to be illegal. RCW 69.51A.085(3). The Court
of Appeals' analysis is flawed because it overlooks that the Ordinance not only
prohibits participation in collective gardens, it also eliminates a state law right to
assert an affirmative defense in relation to participation in collective gardens. By
eliminating the MUCA affirmative defense available to all Washington citizens, the
Ordinance unconstitutionally "forbids what state law permits." Lawson, 168 Wash. 2d at
682.
5
Sarich, et al. v Kent, et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
Kent may not eliminate protection provided by the state. Accordingly, I would
reverse the Court of Appeals and I respectfully dissent.
6
Sarich, et al. v Kent; et al. (Cannabis Action Coal., et al. Plaintiffs), 90204-6 (Gonzalez, J.,
dissenting)
-''',\
7