State Supreme Court affirms city of Kent’s ban on medical marijuana collective gardens

The state Supreme Court voted 8-1 that the city of Kent can ban medical marijuana collective gardens.

The court issued its opinion on May 21, which affirmed earlier rulings by the state Court of Appeals and King County Superior Court.

“The city is pleased with the ruling,” said Pat Fitzpatrick, a city of Kent deputy attorney, in an email. “We were confident that in passing the Medical Use of Cannabis Act, the state Legislature had not divested the city of its power to determine whether marijuana land uses should be permitted in the city.

“Kent’s City Council made a difficult policy decision in determining that marijuana land uses will not be permitted in Kent. It is nice to know the Council’s decision is supported at all state court levels.”

According to the Supreme Court’s opinion, the state’s medical use of cannabis act (MUCA) grants cities and towns the power to zone the production, processing or dispensing of medical marijuana. Under that state law, the city of Kent enacted a zoning ordinance to prohibit collective gardens within the city limits.

“This case requires us to determine whether MUCA preempts the ordinance,” the court ruling reads. “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 (revised code of Washington) 69.51A.140 (1) because the ordinance merely regulates land use activity.”

The Seattle-based Cannabis Action Coalition filed the initial lawsuit against the city in June 2012 in an effort to prohibit the city from enforcing its ban on collective gardens because the state regulates medical marijuana collectives, and cities cannot enforce federal law over state medical marijuana laws. The group has appealed each of the earlier court decisions.

Fitzpatrick argued the case in front of the Supreme Court in February. He emphasized that cities do have the authority to prohibit businesses that are established to distribute medical marijuana.

David Mann, a Seattle attorney representing Deryck Tsang, who owns a Kent medical marijuana collective garden and also is a plaintiff in the lawsuit, told the Supreme Court that the city cannot ban medical marijuana collective gardens.

“We don’t think there is authority to regulate or to ban outright,” Mann said to the justices in February. “In the grand scheme, the Legislature intended to allow collective gardens.”

Justice Steve González disagreed with the majority. In a dissenting opinion, Gonzalez wrote that under MUCA a city may not completely ban what the state permits.

“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,” Gonzalez wrote…. “Kent may not eliminate protection provided by the state. Accordingly, I would reverse the Court of Appeals and I respectfully dissent.”

Mann said Gonzalez got it right.

“With passage of (Senate Bill) 5052 (this year by the Legislature) which expressly repealed the authority of cities to apply zoning regulations, I think the decision leaves more confusion than answers and am disappointed that the decision was issued without further briefing on the impact of 5052,” Mann said in an email.

Senate Bill 5052 establishes the cannabis patient protection act and uses regulations in place for the recreational marijuana market to regulate the medical use of marijuana.

The Kent City Council voted 4-3 in 2012 to approve an ordinance to ban medical cannabis collective gardens. That decision immediately triggered a lawsuit by the Cannabis Action Coalition and the case of Steve Sarich v. the city of Kent. Sarich delivered a copy of the lawsuit to Mayor Suzette Cooke the night the council passed the ban.

In the ruling, justices said that Initiative 502 passed by voters in 2012 is not relevant to the case because it allows the licensed distribution of recreational marijuana while the case is focused on the state’s medical marijuana system that allows patients to participate in a collective garden to pool resources and grow medical marijuana for their own use.

Fitzpatrick said the case cannot be appealed at the federal level.

“This lawsuit raised the question of whether state law preempted local (city) law,” he said. “There is no federal question that would give a federal court jurisdiction.”

That means city officials expect Tsang to shut down his medical marijuana business in a strip mall in north Kent.

“The city hopes Mr. Tsang will voluntarily close his doors, and we trust his attorney will advise him to do so,” Fitzpatrick said. “The council passed an ordinance after numerous public hearings, and the city’s ordinance was upheld at every level of the court. We appreciate that Mr. Tsang did not agree with the council’s decision.

“We also respect his right to litigate this matter in the courts. The courts, all of them, have spoken. It is time for compliance with the law. Mr. Tsang’s failure to comply with the injunction issued by the Superior Court will constitute contempt of court, and could bring along with it severe penalties.”

Mann, the attorney for Tsang, said no comment when asked if he would recommend that Tsang close his business.

But the attorney had a message for Kent city officials.

“I believe that the city of Kent is doing a great disservice to its citizens that are ill and need access to valid and approved medicine,” Mann said.  “The majority of this state voted long ago (1998) to authorize access to medical marijuana to help those in need.  It is sad that a city can choose to deny that basic right to its citizens and make them travel (to get medical marijuana products).”