Judge upholds Kent’s ban on medical marijuana collective gardens

A King County Superior Court judge upheld the city of Kent’s ban on medical marijuana collective gardens.

Judge Jay White issued his ruling on a summary judgment motion by the city on Oct. 5 in court at the Norm Maleng Regional Justice Center in Kent.

“We won the entire case,” said Deputy City Attorney Pat Fitzpatrick during a phone interview. “I was pleased. We expected that result. But we have to acknowledge it’s a complicated matter.”

Steve Sarich, a medical marijuana supporter who filed the lawsuit against the city in June in an effort to prohibit the city from enforcing its ban on collective gardens, said he also expected the ruling.

“We were disappointed but not surprised,” said Sarich during a phone interview. “And it’s not discouraging. We were prepared for whatever judgment came down.”

Sarich, one of several plaintiffs on the initial lawsuit filed after the Kent City Council passed in June its ban on medical marijuana collective gardens, said they would appeal within a few days to either the state Court of Appeals or the state Supreme Court.

“In all the case laws we cited they were not won instantly,” Sarich said. “They were all won in the Court of Appeals or Supreme Court. We could be in Supreme Court in as quickly as three weeks. We have no intention to let it drop. We’re right with the case law.”

Sarich argues that the state regulates medical marijuana collectives, and cities cannot enforce federal law over state medical marijuana laws.

The council banned collective gardens because it believes the businesses violate federal law that lists marijuana as an illegal drug under the federal Controlled Substances Act. State law allows medical marijuana use but council members decided the state law remains unclear about distribution of the drug and doesn’t want any medical marijuana businesses operating in Kent.

Fitzpatrick said the ruling came down to a zoning issue.

“The judge ruled we have the authority to prohibit collective gardens,” Fitzpatrick said. “It’s not as much about medical marijuana but the city’s right to zone. We have statutory authority to prohibit through zoning.”

The judge also ruled that Deryck Tsang, owner of Herbal Choice Caregivers at 19011 West Valley Highway, must close because of the city’s ban against collective gardens. Tsang operates the only known medical marijuana collective garden in Kent.

Tsang, who is also a plaintiff in the suit against the city, did not return a phone message for comment about the judge’s ruling or his plans for the business. Sarich said he figured Tsang would close the business.

Fitzpatrick said the judge had many issues to look over.

“It’s a very complicated case with the legal rules, state and federal law and the Gov. (Chris Gregoire) vetoes that left it a mess,” Fitzpatrick said. “It’s not an easy case for the judge to make sense of.”

The Legislature passed a bill in 2011 to allow medical marijuana dispensaries and collective gardens. But Gregoire vetoed 36 of 58 sections, leaving a confusing legal landscape for cities to navigate.

A couple of medical marijuana businesses opened in Kent after passage of the bill. Evergreen Association of Collective Gardens closed in August on Central Avenue after a letter from the federal Drug Enforcement Administration threatened to shut down the store because it’s too close to a school. Evergreen had remained open despite the city’s ban against the business.