Dual Licenses and the Rohrabacher Amendment Protection

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

Consider this hypothetical: Jane, a Washington state proprietor, holds both a license for the sale of recreational and medical marijuana. She keeps all records in exact compliance for both medical and recreational sales as required by Washington State. The DEA obtains a warrant for Jane’s business, confiscating her product and business records. As the federal trial proceeds, the court orders a McIntosh evidentiary hearing to determine compliance with Washington’s medical marijuana laws that would shut off funding for the DOJ to prosecute Jane. Is Jane protected by the Rohrabacher Amendment?

From one perspective it would appear the Rohrabacher Amendment would protect only those participating in the sale of medical marijuana. However, it’s likely that some of these businesses are operating with dual licenses, especially when you consider the Washington Administrative Code that addresses the medical marijuana endorsement as if it is an add-on to the retail license. Statistics from Washington’s Department of Health show recognition cards, certified consultants, and active medically endorsed stores have continued to increase over the course of a year starting in July, 2016.

So we know medical marijuana is still a thing in Washington’s economy where recreational marijuana has been around for a while, so how do we separate one operation from another? The traceability requirements of the recreational side is pretty intense, tracking from “seed to sale” on the system designated by the Washington State Liquor and Cannabis Board (“WSLCB”). This would lead me to believe that it would be easier to disentangle, at a practical level, any product or sales that are clearly designated for recreational purposes and those that are for medical purposes. But what would that mean for our hypothetical retailer, Jane?

Criminal charges wouldn’t be filed for violation of the different state laws; they would file a charge to cover all of her plants and products. This is a bit of an oversimplification, but I think the point is intact. Let’s further assume Jane’s business is exactly 50% medical and 50% recreational. She’s proven that she’s compliant with the guidelines for medical marijuana, which would trigger the protection from the Rohrabacher Amendment. But that was only 50% of her business, and only 50% of the charges. It is not at all clear how this would get resolved in court, but I can see three main potential outcomes based on Jane’s strict compliance with Washington’s medical marijuana rules:

  • The whole business is not strictly compliant; no protection at all
  • Protects the medical portion; allows prosecution for the recreational
  • The business is all one thing; everything is protected

The closest case on point in the Ninth Circuit was not published, specifically called out as not suitable for precedent. For the moment, this is a big open question. If I were a practitioner in this environment, I would find it difficult to advise a client on what the best course of action would be.

 

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