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

91k~~····

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 Wn. 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

Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 657, 105 P.3d 985 (2005),

and Parkland Light & Water Co. v. Tacoma-Pierce County Bd. ofHealth, 151 Wn.2d

428, 90 P.3d 37 (2004); with Lawson, 168 Wn.2d 675, and Weden, 135 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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)

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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 Wn.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 Wn. 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

Wn.2d 451,477, 61 P.3d 1141 (2003) (quoting Lenci v. City of Seattle, 63 Wn.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 Wn.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 Wn.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 Wn.2d 278, 292, 957 P.2d

621 (1998); see Weden v. San Juan County, 135 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 106, 109, 356 P.2d 292 (1960) and citing

State v. Kirwin, 165 Wn.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 Wn.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)

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7