Medical marijuana backers take Bellingham to court again

THE BELLINGHAM HERALDJuly 23, 2013 

US NEWS COLO-MARIJUANA 3 SE

This marijuana plant was seeded without soil, in pulverized rock, to spur faster growth for the medical-marijuana industry.

MCCLATCHY-TRIBUNE NEWS SERVICE

BELLINGHAM - A new lawsuit filed against the City of Bellingham by Seattle-based Cannabis Action Coalition sets the stage for one more legal battle over the legality of organizations that provide medical marijuana.

The latest lawsuit, filed July 15, 2013, challenges the City Council's unanimous July 1 vote to impose interim zoning restrictions on medical marijuana outlets by means of an "emergency" ordinance.

Among those signing the July lawsuit filed in Whatcom County Superior Court is Martin Nickerson, operator of the Northern Cross Collective medical marijuana outlet on Cornwall Avenue downtown. Nickerson and two Northern Cross employees are facing a Nov. 12, 2013, criminal trial on several felony counts stemming from alleged possession and sale of marijuana at Northern Cross.

Nickerson and his attorneys have filed two previous lawsuits challenging the city's actions.

On March 20, 2012, five days after the police raid on Northern Cross that led to the criminal charges, attorneys representing Northern Cross filed suit seeking an injunction to block the city and its police force from taking any further action. As Northern Cross attorneys told it, Nickerson and his employees had taken great pains to keep Northern Cross's marijuana-distributing activities within the confines of state laws stemming from the 1998 voter approval of medical use of marijuana in Washington.

But in defending the March 2012 case, Assistant City Attorney Shane Brady argued that no provision in state law made it legal for Northern Cross to take money in exchange for marijuana.

"The court cannot enjoin the Bellingham Police Department from enforcing the law," Brady wrote.

Then-Judge Steven Mura agreed. In May 2012, Mura rejected the request for a court order blocking the city's actions.

In October 2012, attorneys for Northern Cross were back in Superior Court to make different legal arguments, in renewed hope of getting a court order protecting Northern Cross's legal right to operate. That time, they argued the city was trying to enforce "unwritten regulations" against Northern Cross by revoking its business license.

"Bellingham has still not passed any ordinances or enacted any regulations addressing collective (marijuana) gardens or medical cannabis access points," the October lawsuit states. "Many other cities in Washington have regulated medical cannabis collective gardens. ... Other cities have passed temporary moratoria so that they can craft regulations for collective gardens."

Again, the city's attorney responded that Northern Cross's operations were illegal, and it was not entitled to a business license.

"Plaintiff's business is unlawful under federal law, state law and local law," Brady wrote in a document submitted to the court in November 2012.

That case is still pending, and on July 1, 2013, the City Council took the first steps toward developing the regulatory framework for legal marijuana outlets that Northern Cross attorneys appeared to be asking for in their October lawsuit.

But in the July 15 lawsuit - their third - Nickerson and co-plaintiffs ask the court to nullify the council's recent action and issue an order blocking the city from enforcing the new interim zoning regulations on medical marijuana. The lawsuit charges that the new regulations are so restrictive that they effectively prohibit medical marijuana outlets, contrary to the intent of state law.

City Attorney Peter Ruffatto said he could not comment directly on a pending lawsuit.

But Ruffatto did say the interim zoning for medical marijuana outlets is not a blanket prohibition. Instead, it restricts establishment of "collective gardens" for medical marijuana patients to industrial zones, while allowing the patients to cultivate marijuana for personal use in their own homes.

In passing the July 1 ordinance, Ruffatto said Bellingham is joining a number of other cities scrambling to get local regulations in place for both medical and recreational marijuana outlets.

Ruffatto noted that state law explicitly grants local governments the power to regulate those outlets, as they do other businesses. The city's intent is to replace the interim zoning restrictions with permanent ones after the necessary study, he said.

Ruffatto also noted that both medical and recreational outlets remain in legal limbo as long as the sale of marijuana remains a federal crime, even though the state's voters have chosen to decriminalize it for both medical and recreational use. And while the state expects to open recreational sale outlets within months, there is no state provision for legal sale of medical marijuana.

In April 2011 - more than a year before state voters removed state prohibitions on recreational marijuana - then-Gov. Chris Gregoire vetoed sections of a new state law intended as a legal framework for medical marijuana dispensaries. Gregoire, pointing to a federal raid of two medical marijuana dispensaries in Spokane, said she feared federal prosecution of any state employees involved in a state-sanctioned, medical marijuana system.

As a result of that veto, there appears to be no legal foundation for medical marijuana dispensaries that take money in exchange for marijuana, Ruffatto said.

In court filings, attorneys for Northern Cross noted that state law does allow the use of marijuana for medical purposes, and Northern Cross attempted to avoid legal pitfalls in providing medical patients with a "medical cannabis access point."

Northern Cross accepted "suggested donations" for its marijuana products, and provided them free of charge to those who could not pay, according to its attorneys.

But Bellingham police painted a different picture.

In an affidavit submitted in the criminal case against Nickerson and other Northern Cross employees, Deputy Whatcom County Prosecuting Attorney James Hulbert portrayed Northern Cross as little more than a medical mask concealing a profitable marijuana business.

Among other things, Hulbert testified that Northern Cross customers were reselling their purchases on the sidewalk outside Northern Cross.

The prosecutor's affidavit also said undercover police detectives conducted a lengthy investigation of Northern Cross and learned that its customers were getting medical authorizations from Yuel Boyce, a Seattle naturopath who made occasional visits to Alger to provide those authorizations.

Detectives told the prosecutor that they themselves got authorizations for medical marijuana after a quick visit to Boyce in Seattle. Boyce charged the three detectives $140 apiece, in cash.

On June 6, 2013, the Washington Department of Health announced that Boyce's license would be suspended two years and he would be fined $5,000 in connection with the case. Boyce admitted that the detectives' account of his behavior was true, and agreed not to appeal the penalties.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

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