Supreme Court commissioner temporarily lifts Kent’s ban on medical marijuana collective gardens

Washington Supreme Court Commissioner Steven Goff granted a temporary stay on Wednesday that lifts the city of Kent’s ban on medical marijuana collective gardens.

A King County Superior Court judge on Oct. 5 upheld the city’s ban. But Deryck Tsang, who owns a Kent medical marijuana collective garden, joined several other plaintiffs to request a stay to the order.

The ruling means Tsang can re-open his Herbal Choice Caregivers business along West Valley Highway in North Kent. Tsang closed the business after the Superior Court ruling. No other collective gardens are known to be operating in Kent.

“I’m extremely happy,” said plaintiff John Worthington, of Renton, who added Tsang will re-open his business Friday. “We will carve up the city of Kent. Their federal argument did not work and neither did their argument about governor vetoes.”

Tsang did not return an email for comment about the case.

The Kent City Council voted 4-3 last June to ban 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 the city.

Deputy City Attorney Pat Fitzpatrick said the Supreme Court ruling wasn’t unexpected.

“The city is not surprised by the order,” Fitzpatrick said in an email. “The threshold for obtaining a stay of an injunction in a case such as this is low. The party requesting the stay need only establish the existence of a debatable legal issue. In no way does this order imply that the Superior Court committed an error when it ruled in the city’s favor.”

The state allows medical marijuana use by patients who may participate in collective gardens. Tsang’s lawsuit challenges the city’s ability to employ a zoning ordinance to prohibit medical marijuana collective gardens within all of its zoning districts.

King County Superior Court Judge Jay White upheld the city’s authority for the outright ban. Tsang’s request for a stay was based on delaying enforcement of the ban pending review of the Superior Court decision by the Supreme Court.

In his commissioner role, Goff serves as gatekeeper for the Supreme Court, helping to review and analyze the hundreds of petitions and motions that come to the court each year. His office has a primary role in determining which cases will be heard by the full court.

In Goff’s ruling, he wrote, “Mr. Tsang has presented a debatable issue under this standard regarding whether the power to regulate community gardens through zoning includes the power to zone them out of existence. Under the new (2011) legislation, the medical use of cannabis in accordance with the terms and conditions of the act ‘does not constitute a crime,’ and qualifying patients and others who act in compliance with the act are not subject to ‘civil consequences.'”

Goff continued that nothing in the state law (RCW 69.51.040) “precludes a qualifying patient or designated provider from engaging in the private, unlicensed, noncommercial production, possession, transportation, delivery or administration of cannabis for medical use.”

Goff said the city has made contrary arguments and that “these arguments may ultimately prevail in this appeal. But Mr. Tsang has at least a plausible argument for his position on the subject.”

The commissioner also looked at the relative harm to Tsang if a stay were not issued to temporarily lift the ban.

“It seems likely to me that Mr. Tsang will suffer greater injury if a stay is not imposed than the city would suffer if a stay is imposed,” Goff wrote.

Tsang told the court that he personally leased a building for the collective garden that remains binding until 2015. Goff said the building is safe and secure with 24-hour video surveillance, alarm monitors and an electric strike door and it is next door to a Washington State Patrol unit office.

“He (Tsang) says that one of his co-patients is a woman with late stage 3-C cancer and she is unable to drive to Seattle to obtain medical marijuana,” Goff wrote.

The city argued that Tsang is actually running a marijuana dispensary willing to provide marijuana to anyone with a valid state ID and medical marijuana recommendation in exchange for a contribution.

“But if the city has cause to believe Mr. Tsang is engaged in illegal activities rather than a collective garden, it can control those activities by means other than a zoning ban on collective gardens,” the commissioner wrote.

Goff admitted that the issue of relative harm also is debatable.

“Thus, while I am inclined to grant a temporary stay now, the issue will be revisited by this court when it decides, after opening briefs are filed, whether to retain the appeal,” he wrote.

From the city’s standpoint, Fitzpatrick emphasized that the court issued a “temporary stay” preventing the city from enforcing the injunction against Tsang’s medical marijuana business. Fitzpatrick added that the court specifically did not grant Tsang’s request for a stay prohibiting the enforcement of the city’s zoning ordinance.

“The stay of the injunction has no bearing on the status of the plaintiffs’ appeal,” Fitzpatrick said. “The city prevailed in the Superior Court, the plaintiffs have appealed, and the appeal is being processed.”

Fitzpatrick said the plaintiffs asked the Supreme Court to hear the matter on direct appeal rather than going first to the Court of Appeals.

“It is within the Supreme Court’s discretion as to whether it will hear the matter directly from the Superior Court, or whether it will require the matter first be heard in the Court of Appeals,” he said.

A decision by the Supreme Court about where to hear the appeal is expected in the next few months, Fitzpatrick said.

“Once it is determined where the appeal will be heard, the parties will present written arguments supporting their respective positions, will present oral arguments, and eventually, the court will render a decision,” he said. “It will be many months before we have a decision in this matter.”

Those many months could cost the city a lot of money, said Philip Dawdy, part of the state lobby the last couple of years for medical marijuana legislation. He said it costs a minimum of $50,000 for a case to go to the Appeals Court.

Fitzpatrick said city staff will handle case throughout the appeal process.

Dawdy has testified before city officials and talked to them privately in an effort to get the city to allow medical marijuana collective gardens.

“I think the city will need to reconsider its decision,” Dawdy said. “Hopefully, the city will look at thinking things through or they are going to have an expensive court case. They can remove the ban if the council wants.”

Editor’s note: This story has been corrected from an earlier version.