Rule or Law? The Difference Matters For Your Marijuana Business

By Daniel Shortt on October 28, 2015 Posted in Legal Issues, States

This is for federal bills, but it nicely illustrates how complicated the process can be.

Laws are different than rules and understanding the difference between the two can be important to your marijuana business’s bottom-line. I will use Washington State as the example.

In Washington, laws are generally enacted through initiative or through the legislative process. Initiatives allow voters to pass laws directly by popular vote. Washington legalized recreational marijuana by popular vote — Initiative 502 in 2012. The legislative process requires a bill pass through both Washington’s Senate and House of Representatives and then garner the Governor’s signature before becoming law. Recently, SB 5052 and HB 2136 were passed through the legislative process and established new Washington State laws regarding medical cannabis.

As is the case with other states with “robust regulation,” Washington cannabis businesses are also subject to rules created by state agencies without the political protections provided by initiatives and the legislative process. State agencies, like the Washington State Liquor and Cannabis Board (LCB), are government entities given the power to regulate and govern a specific area or industry. These agencies are typically run by unelected officials. Agencies arguably create more efficient government because they a focus on one discreet area or industry, with expertise not usually available to legislatures and lawmakers.

A rule is an agency order, directive, or regulation that applies to the public generally. Rules are similar to laws because those who violate them may be subject to penalties and sanctions. Rules can and do change constantly, whereas laws tend to remain more static. The LCB’s rule-making process may begin with an individual’s petition to the LCB, but often the agency itself initiates the process against a cannabis business if it sees a need to do so.

To enact a rule, the LCB must publish notice of the rule-making in the Washington State Register. The LCB then holds a public hearing at which citizens are given an opportunity to comment on the proposed rule. Citizens can also submit written comments to the LCB about the proposed rule. The LCB must consider the public comments and then issue an order of adoption, which explains the new rule and the basis for its adoption.  Agencies can also institute emergency rules, which are not subject to the above requirements and become effective immediately. These emergency rules only last for up to 120 days and they must be in response to some immediate issue or danger. The Washington Department of Health recently issued emergency rules for medical marijuana, for instance.

Despite similarities to laws, LCB rules are not subject to the same type of political recourse as laws. This is significant because LCB regulations have huge impacts on the cannabis marketplace. For example, in Initiative 502, voters enacted residency requirements that restrict issuance of cannabis licenses only to those who can demonstrate having spent a certain amount of time in the state (see here and here). The Initiative never mentions “True Party of Interest.” In its rule making though, the LCB created the term, True Party of Interest, and defined it, and now applies the residency requirements to any party deemed to be a True Party of Interest. The definition for a “True Party of Interest” includes all investors and the spouses of any shareholders or principal. Though never contemplated by the voters, the “True Party of Interest” rule significantly restricts the marijuana marketplace by making it difficult for out-of-state investors to put their funds into Washington State cannabis businesses. Moreover, Washington voters who disagree with the “True Party of Interest” rule have little recourse beyond lobbying to get this rule changed.

One of the best ways for citizens to get involved with LCB rule making is to comment during the agency’s rule-making process. Currently the LCB and the Washington State Department of Health are holding hearings regarding medical marijuana regulations. If you care about the future of the marijuana industry in Washington State you should make your voice heard at one or more of these hearings.

CONTINUE READING…

Should pot be legal? NO: Voters should hold out for real reform, not fall for this narrow proposal

 

Washington voters are being told a big lie. New Approach Washington, the campaign behind Initiative 502, is advertising that it will “legalize” marijuana. It would not.

DOUGLAS HIATT • Published October 08, 2012

No Prohibition 

 

It creates a very narrow exception that defines the possession of one ounce by adults over 21, and the state’s rules for production, as “not a violation” of the law.

I-502 leaves every single law now making marijuana illegal on the books. Walk out of the state-sanctioned, licensed and taxed store and hand the marijuana to your significant other and it is a delivery of marijuana. This is not comprehensive, real reform.

What I-502 does change is our DUI law. Our current DUI laws are working just fine and result in conviction rates of over 90 percent. This initiative sets unneeded, unasked for and unscientific levels for impairment for adults (5 nanograms, rejected three times by the Colorado Legislature), while establishing a zero-tolerance provision for all drivers 16 to 21.

It also takes away your ability to defend yourself. If you meet the levels, you are guilty. No explaining that you are a patient, no arguing about the levels or tolerance, nothing. For drivers age 16 to 21, any detectable amount of marijuana will result in a DUI conviction and disastrous effects on their parents’ insurance.

This is not based on impairment; it is simply a new penalty for marijuana for kids. But it is a very impactful one for parents with teenage drivers. What parent wants to face the requirements for insurance and the expense of a DUI, all because of some youthful experimentation?

This initiative is also being sold as “pitting the citizens of Washington state against the federal government” and “carefully drafted” to withstand federal preemption. Not true. I-502 essentially wastes your vote to force federal change and will likely result in the federal courts construing this initiative to change the law to one ounce decriminalized, with nowhere legal to buy it and leaving the terrible changes to our DUI laws.

As U.S. Attorney Jenny Durkan has stated, she knows of no attorney who thinks that this will survive federal preemption analyses. There are ways to avoid this drafting problem. See sensiblewashington.org for real cannabis reform.

Because the federal government will not allow the state to begin regulating and taxing a federally banned substance, these projections are moot. I-502 imposes taxes at three distinct levels and does not allow growers and sellers to be the same entity. This will produce taxes that will make the store-bought marijuana way too expensive to even begin to impact the current market.

I-502 will have absolutely no effect on criminal organizations in Mexico or anywhere else. To actually get the benefit of ending prohibition, as we did with alcohol, you have to actually legalize the substance in question, not play games and pander to fears. I-502 also fails to legalize hemp, which would open a $430 million domestic hemp market currently supplied primarily by China.

With regard to other criminal justice savings, because more than 90 percent of current marijuana possession charges are the result of traffic stops, the 10,000 possession arrests per year can easily be converted into 10,000 (or more) DUI arrests, thereby eliminating any savings in the criminal justice system stemming from reduced prosecutions. The zero-tolerance driving standard for drivers 16 to 21 will eliminate any savings on criminal justice costs and produce much misery for many families.

Just say no to I-520.

Douglas Hiatt is a Seattle-based criminal defense attorney and a co-founder of Sensible Washington, which opposes Initiative 502 and advocates for legalization of hemp and cannabis.

Read more here: http://www.theolympian.com/2012/10/07/2278108/should-pot-be-legal-no-voters.html?storylink=addthis#.UHMRJ5sAzPs.facebook#storylink=cpy

Should pot be legal? NO: Voters should hold out for real reform, not fall for this narrow proposal

Washington voters are being told a big lie. New Approach Washington, the campaign behind Initiative 502, is advertising that it will “legalize” marijuana. It would not.

DOUGLAS HIATT • Published October 08, 2012

No Prohibition 

 

It creates a very narrow exception that defines the possession of one ounce by adults over 21, and the state’s rules for production, as “not a violation” of the law.

I-502 leaves every single law now making marijuana illegal on the books. Walk out of the state-sanctioned, licensed and taxed store and hand the marijuana to your significant other and it is a delivery of marijuana. This is not comprehensive, real reform.

What I-502 does change is our DUI law. Our current DUI laws are working just fine and result in conviction rates of over 90 percent. This initiative sets unneeded, unasked for and unscientific levels for impairment for adults (5 nanograms, rejected three times by the Colorado Legislature), while establishing a zero-tolerance provision for all drivers 16 to 21.

It also takes away your ability to defend yourself. If you meet the levels, you are guilty. No explaining that you are a patient, no arguing about the levels or tolerance, nothing. For drivers age 16 to 21, any detectable amount of marijuana will result in a DUI conviction and disastrous effects on their parents’ insurance.

This is not based on impairment; it is simply a new penalty for marijuana for kids. But it is a very impactful one for parents with teenage drivers. What parent wants to face the requirements for insurance and the expense of a DUI, all because of some youthful experimentation?

This initiative is also being sold as “pitting the citizens of Washington state against the federal government” and “carefully drafted” to withstand federal preemption. Not true. I-502 essentially wastes your vote to force federal change and will likely result in the federal courts construing this initiative to change the law to one ounce decriminalized, with nowhere legal to buy it and leaving the terrible changes to our DUI laws.

As U.S. Attorney Jenny Durkan has stated, she knows of no attorney who thinks that this will survive federal preemption analyses. There are ways to avoid this drafting problem. See sensiblewashington.org for real cannabis reform.

Because the federal government will not allow the state to begin regulating and taxing a federally banned substance, these projections are moot. I-502 imposes taxes at three distinct levels and does not allow growers and sellers to be the same entity. This will produce taxes that will make the store-bought marijuana way too expensive to even begin to impact the current market.

I-502 will have absolutely no effect on criminal organizations in Mexico or anywhere else. To actually get the benefit of ending prohibition, as we did with alcohol, you have to actually legalize the substance in question, not play games and pander to fears. I-502 also fails to legalize hemp, which would open a $430 million domestic hemp market currently supplied primarily by China.

With regard to other criminal justice savings, because more than 90 percent of current marijuana possession charges are the result of traffic stops, the 10,000 possession arrests per year can easily be converted into 10,000 (or more) DUI arrests, thereby eliminating any savings in the criminal justice system stemming from reduced prosecutions. The zero-tolerance driving standard for drivers 16 to 21 will eliminate any savings on criminal justice costs and produce much misery for many families.

Just say no to I-520.

Douglas Hiatt is a Seattle-based criminal defense attorney and a co-founder of Sensible Washington, which opposes Initiative 502 and advocates for legalization of hemp and cannabis.

Read more here: http://www.theolympian.com/2012/10/07/2278108/should-pot-be-legal-no-voters.html?storylink=addthis#.UHMRJ5sAzPs.facebook#storylink=cpy

Imprisoned Prince of Pot Marc Emery calls out anti-legalization marijuana activists on Washington’s I-502

 

MINOLTA DIGITAL CAMERA

I have written thousands of words on the controversy surrounding Washington State’s I-502 legalization initiative.  I even get people in my comments sections who hate me because of my opinions on the issue.  Now, Marc Emery, the British Columbian marijuana seed seller doing federal time in America, also known as “The Prince of Pot” and one of the leading funders of the legalization movements in North America, has some harsh words for people who proclaim themselves supporters of legalization, but are actively opposing this legalization.

Most of our people in the cannabis culture who smoke, grow, or sell the herb don’t vote. The vast majority will never give money to political reform of any kind, most won’t gather signatures (unless they are paid) and will never write their congressperson or even a letter to the newspaper to condemn prohibition.

For the most part, our people are politically useless, unwilling and unable to organize, distracted by petty acrimony, and won’t actively support candidates or initiatives that will further the legalization of cannabis. For all the 250,000 stoners/pot people who come to Seattle Hempfest each August, the organizers can’t even get this mass to contribute pennies per person in donations, so pathetic is the sense of political responsibility among our people. Even a tremendous event like Hempfest suffers deficits because our people can’t collectively volunteer to give even ten cents per attendee to pay for its costs. Sad, sad, sad.

Should I-502 fail to pass in November, we’ll know who to blame, and who can be held responsible. The so-called grassroots could not manage to get their own initiative on the ballot, and in their frustration, they may choose to sabotage the best opportunity Washington State has had in the long history of prohibition to do what is possible – under the political reality of the day – to legalize marijuana.

via The Importance of Washington’s Legalization Initiative I-502 | Cannabis Culture.

The primary objection to legalization comes from a tiny minority of the Evergreen State’s medical marijuana community.  More accurately, the growers, doctors, and lawyers who serve the community, and the patients they’ve managed to frighten.  The issue at hand is the legalization includes a per se DUID of 5ng/mL THC in blood*, which is “a ‘legal limit’ like alcohol for DUI” in layman’s terms.

What they’re righteously angry about is that having a number on a test about the pot in your blood is not a scientifically accurate determination of impairment, especially not as low as 5ng/mL and especially not for people who smoke (use) a lot of pot all the time.  Like medical marijuana patients.  And they are factually correct.

But that has been ratcheted up by the tiny minority to mean “No patients will ever be able to drive!  They’ll all be getting DUIDs!  There will be more DUIDs to replace all the 1 ounce pot arrests!” and so on.

The fact is that if someone who smokes (uses) a lot of pot all day every day gets behind the wheel today, they are most likely a DUID waiting to happen.  Any amount of THC in blood is evidence to convict you of a DUID today.  After I-502, there will actually be a “legal limit” of 5ng/mL you could be under!

Now, the difference, as opponents are quick to note, is the per se means “in and of itself” in legalese, which translates to “slam dunk” for the prosecutor who wants to try you for a >5ng blood test.  If it’s per se, you’re guaranteed guilty, just like a drunk who’s over 0.08 BAC on the breathalyzer, even if he’s the best driver on the road.  Today, it’s not per se, which means a prosecutor, while he can enter blood tests into evidence, must still prove the driver was impaired.

But if a >5ng/mL DUID case is a “slam dunk” after I-502, it is a “fast break lay-up” right now.  If you go to court having tested at >5ng/mL, you’re not very likely to be acquitted.  Especially since the cop had to have a) evidence of smoke in the car (in which case, you should get a DUID), b) evidence of your impaired driving (dash cam of you weaving out of lanes, failed field sobriety test, etc.), and/or c) you wrecked your car in order to get your blood in the first place.

And to extend the NBA Playoff metaphor, right now, DUID charges with <5ng/mL blood tests are “mid range jumpers”.  There are plenty of examples of convictions below 5ng where that blood evidence convinced a judge or jury to convict, because who the fark knows what a nanogram per milliliter is and how much of it makes you too high to drive?  ”She was at 1.6 ng/mL Your Honor…” OK, so is that a lot?  What’s ‘high’, 100? 10? .08?

But after I-502 passes, those types of prosecutions become “half court shots”.  Any competent defense attorney will just say, “Your Honor, my client is a medical marijuana patient who has developed a tolerance to her medication and, after all, she was only at 1.6ng/mL, which is less than a third of the legal limit for THC.”

CONTINUE READING PAGE TWO….

Imprisoned Prince of Pot Marc Emery calls out anti-legalization marijuana activists on Washington’s I-502

 

MINOLTA DIGITAL CAMERA

I have written thousands of words on the controversy surrounding Washington State’s I-502 legalization initiative.  I even get people in my comments sections who hate me because of my opinions on the issue.  Now, Marc Emery, the British Columbian marijuana seed seller doing federal time in America, also known as “The Prince of Pot” and one of the leading funders of the legalization movements in North America, has some harsh words for people who proclaim themselves supporters of legalization, but are actively opposing this legalization.

Most of our people in the cannabis culture who smoke, grow, or sell the herb don’t vote. The vast majority will never give money to political reform of any kind, most won’t gather signatures (unless they are paid) and will never write their congressperson or even a letter to the newspaper to condemn prohibition.

For the most part, our people are politically useless, unwilling and unable to organize, distracted by petty acrimony, and won’t actively support candidates or initiatives that will further the legalization of cannabis. For all the 250,000 stoners/pot people who come to Seattle Hempfest each August, the organizers can’t even get this mass to contribute pennies per person in donations, so pathetic is the sense of political responsibility among our people. Even a tremendous event like Hempfest suffers deficits because our people can’t collectively volunteer to give even ten cents per attendee to pay for its costs. Sad, sad, sad.

Should I-502 fail to pass in November, we’ll know who to blame, and who can be held responsible. The so-called grassroots could not manage to get their own initiative on the ballot, and in their frustration, they may choose to sabotage the best opportunity Washington State has had in the long history of prohibition to do what is possible – under the political reality of the day – to legalize marijuana.

via The Importance of Washington’s Legalization Initiative I-502 | Cannabis Culture.

The primary objection to legalization comes from a tiny minority of the Evergreen State’s medical marijuana community.  More accurately, the growers, doctors, and lawyers who serve the community, and the patients they’ve managed to frighten.  The issue at hand is the legalization includes a per se DUID of 5ng/mL THC in blood*, which is “a ‘legal limit’ like alcohol for DUI” in layman’s terms.

What they’re righteously angry about is that having a number on a test about the pot in your blood is not a scientifically accurate determination of impairment, especially not as low as 5ng/mL and especially not for people who smoke (use) a lot of pot all the time.  Like medical marijuana patients.  And they are factually correct.

But that has been ratcheted up by the tiny minority to mean “No patients will ever be able to drive!  They’ll all be getting DUIDs!  There will be more DUIDs to replace all the 1 ounce pot arrests!” and so on.

The fact is that if someone who smokes (uses) a lot of pot all day every day gets behind the wheel today, they are most likely a DUID waiting to happen.  Any amount of THC in blood is evidence to convict you of a DUID today.  After I-502, there will actually be a “legal limit” of 5ng/mL you could be under!

Now, the difference, as opponents are quick to note, is the per se means “in and of itself” in legalese, which translates to “slam dunk” for the prosecutor who wants to try you for a >5ng blood test.  If it’s per se, you’re guaranteed guilty, just like a drunk who’s over 0.08 BAC on the breathalyzer, even if he’s the best driver on the road.  Today, it’s not per se, which means a prosecutor, while he can enter blood tests into evidence, must still prove the driver was impaired.

But if a >5ng/mL DUID case is a “slam dunk” after I-502, it is a “fast break lay-up” right now.  If you go to court having tested at >5ng/mL, you’re not very likely to be acquitted.  Especially since the cop had to have a) evidence of smoke in the car (in which case, you should get a DUID), b) evidence of your impaired driving (dash cam of you weaving out of lanes, failed field sobriety test, etc.), and/or c) you wrecked your car in order to get your blood in the first place.

And to extend the NBA Playoff metaphor, right now, DUID charges with <5ng/mL blood tests are “mid range jumpers”.  There are plenty of examples of convictions below 5ng where that blood evidence convinced a judge or jury to convict, because who the fark knows what a nanogram per milliliter is and how much of it makes you too high to drive?  ”She was at 1.6 ng/mL Your Honor…” OK, so is that a lot?  What’s ‘high’, 100? 10? .08?

But after I-502 passes, those types of prosecutions become “half court shots”.  Any competent defense attorney will just say, “Your Honor, my client is a medical marijuana patient who has developed a tolerance to her medication and, after all, she was only at 1.6ng/mL, which is less than a third of the legal limit for THC.”

CONTINUE READING PAGE TWO….

Prince of Pot Marc Emery Endorses I-502, Says Initiative’s Critics Are ‘Jealous’

By Nina Shapiro Tue., May 1 2012 at 7:00 AM

Marc Emery, British Columbia’s so-called Prince of Pot, has endorsed marijuana legalization initiative I-502. In staking out his position, Emery sided with the man who put him in prison–former U.S. Attorney for Western Washington John McKay–and gave a tongue lashing to the initiative’s critics.

Emery, serving a five-year sentence in connection with his former seed empire, made his views known via a blog he writes from prison (posted with the help of supporters). He delivered an upbeat post on Saturday, which took note of wife Jodie’s recent appearance with McKay at a press conference in Vancouver held by a pro-legalization group.

"The great news continues," Emery went on. "My former prosecutor John McKay, not content with just being a lecturer on the evils of the drug war, is also co-sponsor of an excellent legalization initiative on the Washington State ballot this November. Apology accepted, Mr. McKay!"

Last time we checked, while working on last year’s profile of McKay, the former prosecutor turned legalization activist did not reciprocate the warm fuzzies. "He got what he deserved," McKay said of Emery. "He wanted to change policy, and the way he chose to do that was not to get himself elected to the B.C. parliament, but to break the law."

McKay’s refusal to actually apologize is held against him by, among others, lawyer and legalization activist Douglas Hiatt, who told SW that the former prosecutor has never faced his "moral culpability." But that doesn’t seem to bother Emery, whose harsh words are reserved for activists like Hiatt who are critical of I-502.
Emery dismisses as "trivial" the argument that 502 would endanger cannabis users through the initiative’s DUI provision, which specifies a very limited amount of the drug that drivers can have in their bloodstream, and creates a zero tolerance policy for those under 21. Emery writes:

How ironic that I currently have far more respect for my former prosecutor and his proposed legislation than I have for those activists who would foolishly and dangerously oppose this great step forward over trivialities, much the same way as done by many so-called members of the movement who killed Prop. 19 in California in 2010. Much of the Washington state opposition to I-502 is rooted in adversarial jealousy, because after three attempts, some activists just can’t get an initiative of their own on the ballot, so resent McKay, the ACLU and their backers who did manage to get I-502 on the ballot.

 

Ouch. Hiatt, who founded Sensible Washington, the group that repeatedly and unsuccessfully tried to get a broader legalization initiative on the ballot, insists his opposition to I-502 "doesn’t have a damn thing to do with jealously." Instead, he tells SW, it really does have to do with the initiative’s DUI provision.

And Hiatt bristles against the notion that all marijuana activists should fall in line behind the well-financed initiative and its influential supporters. "The whims of totalitarianism are blowing, even in the movement," he says.

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