Category: Medical Cannabis

by Dominic Corva, Social Science Research Director

Today is June 30, 2016, the last day of two eras. It’s the last day of Medical Cannabis as a tolerated parallel cannabis access system in Washington State, and the last day of Phase I of Legal Cannabis in Washington State. Let’s review what’s changing with respect to “Access,” a topic I was asked to address on Sunday, June 26, at the “22 too many” Veterans for Medical Cannabis fundraiser in Olympia.

1. Storefront access. In the fall of 2015, BOTEC found 404 medical cannabis access points across the state, according to information provided in a public information request. 73 of those were “not verified” although they were listed because their sources, including the City of Seattle, were found to be fairly credible. This number is probably below peak, given that access points began to close starting in July 2015, when SB 5052 went into effect. As of last week’s WSLCB numbers, 179 I 502 retailers accounted for 98% of the previous three month’s statewide revenue. A large percentage of these applied for “medical endorsements,” but let’s just conclude that the state went from 404 access points to less than 179 on the day that the latter was supposed to provide uninterrupted access to the State’s medical patients.
2. There is a geographic dimension to this access reduction, which we are working on by mapping those 179 stores relative to those 404 stores. Those maps will be in the forthcoming book, but are not made yet.
3. Of those “less than 179” I 502 retail stores that are open and doing substantive business, a very small percentage were actually transitioned from medical cannabis. In Seattle, a recent study found that 3 of the 21 “second wave” retail stores went to existing access points at the locations they used to operate. We found that about 6 more were existing access points that relocated. 9 out of 21 is still an “F” for “Failure to meet the intention of SB 5052 to create a second window for existing medical access points to transition into I 502.” Lawsuits are ongoing. But if the WSLCB Failed in Seattle, where access points had perhaps the most favorable circumstances, we can hypothesize with some confidence that they Failed in the rest of the State. We are adapting the methodology of the CBE report to test that hypothesis, and those results will be published in our forthcoming book.
4. If there were at least 400 storefronts a year ago, there are thousands of individual patient grows that are affected. The State may not have liked medical storefronts, but it has never understood the decentralized market that supplied and supplemented it. Home grow access with an affirmative defense has changed dramatically. The upper limit of patient or collective garden home grows was 15 per patient, up 60 plants with 4 or more medical authorizations. Maximum allowable plants (this includes seedlings and clones!) is now 4 or 6 if one registers with the WSLCB. A registered “cooperative garden” can have up to 24 plants, but not only do they have to register they have to master Biotrack, a feat that’s barely been accomplished by I 502 businesses. I have been asking, but to this date I am not aware of a single cooperative garden that has registered with the WSLCB. If you know of one, please let us know.
5. Access to authorizations became much more difficult once SB 5052 passed, which intimidated existing doctors who had the expertise and willingness to authorize cannabis for patients. Now, “primary care physicians” have to be involved — and there’s no State requirement that primary care physicians be trained in basic cannabinoid science nor that they be willing to authorize either way. It’s also a class thing: who has primary care physicians in a country when so many have no health care at all, and usually use the health care system only in an emergency?

One could argue that these access concerns are significant only for a small minority of former access point patrons. That’s like arguing that since only a few people have physical disabilities, we don’t need handicap parking or ramps or any of the other ways our infrastructure for the many accommodates the needs of a few. Whether you believe, as our policymakers do, that 90% of medical cannabis patients are “fakers,” or that all cannabis use is medical, the wholesale destruction of access for even that 10% is unconscionable.

It’s unconscionable because it wasn’t necessary, on the one hand, and even if one believes it was necessary, the I 502 system is still too immature and underdeveloped to do it now. The WSLCB proclaims that over 300 retail stores have been approved and we are on our way to 550, but the numbers on the ground say that only 179 retail stores were actually doing business at the beginning of Phase II of Washington State legalization. The State managed to open less than half of its original 335 store allotment over three years, and that includes quite a few “Second wave” retail stores that have been opened in the last 6 months.

Today is a tragedy for common sense and evidence-based policy. You don’t have to like medical cannabis to understand that this is at the very least an extremely premature step, at the very least. SB 5052, the “Patient Protection Act,” has dismantled patient protections without guaranteeing continued patient access, which was just as much a mandate in the law as shutting down storefronts. It’s a bit of a catch-22 for the WSLCB, which was charged with this impossible task (and yes, let’s say the Board and those it answers to supported the general thrust of SB 5052).

What’s going to happen next? A hard legal line has been drawn down the middle of a 20-year social and political phenomenon. In some places, like Seattle, that hard line will be enforced only upon complaint, and it’s likely that civil charges will be preferred to criminal ones. But in many other jurisdictions, those complaints will be aggressive and it will look like prohibition did 20 years ago. It’s also likely, according to former legislator Chris Hurst’s presentation to the Alliance a couple of weeks ago, that complaints will mostly be coming from I 502 retail shops looking to eliminate competition.

There’s no going back, absent some unexpected lawsuit outcomes whose day in court may eventually come. I 502 will grow to maturity over the next few years — I’d say at least 4 before they begin to allocate retail right.

The challenge for those who wield the politics of access is simple. You have to convince the legislature to pass a “home grow” provision, and it doesn’t want to do that for at least 2 years. If patients and patient advocates can unite around this single issue and push the legislature to do something that legislators have clearly stated they don’t want to do, yet, many of the basic issues related to medical cannabis access can be resolved almost entirely. Washington State will eventually have a home grow provision, as all the other legal states do and as California will under AUMA (or legislative action if AUMA doesn’t pass). In the meantime, thousands of previously protected people will in all likelihood live their lives in fear and stress because the law has changed, even if few will get arrested and prosecuted.

It’s that simple. What’s done is done: access for patients has been disrupted against the letter of SB 5052. The politics of access must consolidate around a sane homegrow provision in 2017. There are six months to organize. Go.

by Dominic Corva, Social Science Research Director

This blog post skips the politics of 5052’s legislative process and focuses instead on how 5052’s mandated “merit process” for approving new I 502 retailers, ostensibly as a window for existing Medical Access points, was defined and implemented, between July 2015 and February 2016. It’s a post about an unfinished process, given that three of our interview subjects aim to be part of that transition but their individual processes are not completed. Dockside has two locations open from the first application window and three from the second wave in process; and Herban Legends transitioned to a new I 502 location almost as soon as the second wave application process achieved lift-off in January.

One of our other three applicants remains unapproved to transition and has a lawsuit pending against the WSLCB over whether there was in fact a merit process; another has fought to remain open in their current location until a Jul 1 switch over, and the fifth interview subject has closed her Access Point down while working to open in another location by July 1. All three in this group received letters from the WSLCB in January 2016 stating that they would remain open at their peril, since they were too far down the Priority I merit list to expect to be approved for Seattle. A flurry of media coverage ensued, as well as a different lawsuit, and about a week later two of these three applicants were informed that they were approved for Seattle, after all.

Which is to say that our Transitioner sample had a very diverse experience with the second retail application round. One of them made the top of the Priority I application list for Seattle; one of them and each of his two other business partners cleared the approval bar right away (two in Seattle and one elsewhere); and the other three have had to fight for Transition approval for different reasons with one of those still fighting.

Now that you know the current status of the results, let’s review the context for these highly variable outcomes.

SB 5052 directed the WSLCB to create a second retail application window based one merit criteria, which the WSLCB would also develop. This process began early summer 2016, not long after the bill was signed by the governor. Interestingly, the merit language appears to have been developed in the legislative process by UFCW, who intended merit criteria to include stringent labor standards. Those merit standards were recently folded into the renewal process, after closed-meeting pressure from the UFCW. It would have been bureaucratically difficult, if not impossible, to triangulate labor standards when the LCB’s main legislative obligation was to re-create Medical Cannabis access for the State by July 1, 2016.

So the initial challenge faced by the LCB was to define merit criteria that was focused on defining what criteria could plausibly be used to identify Medical “good actors” who deserved a chance to get into the I 502 system — especially since the previous window’s lottery process made such qualifications irrelevant.

However, the lottery results were still active — all of the lottery applications from the previous window had numbers, and had been promised that if their numbers came up, their applications would be processed. A second window had to fold the first window in to avoid lawsuits from hundreds of still-pending applicants further down on the lottery draw.

As a result, the LCB settled on two merit criteria that would define three Priority Tiers. The first criteria was, did you apply in the lottery round? And the second was, had you been paying taxes since before January 1, 2013 — roughly, the timeframe in which I 502 had become a reality. Priority I was the list for applications that met both criteria; Priority II was for applications that met the second criteria without the first; and Priority III was for applications that met neither criteria.

Effectively, the primary merit consideration became, did the application include someone who had applied in the lottery round. The secondary merit consideration had to do with whether someone on the application had belonged to an Access Point collective garden, evidenced by tax receipts. The prioritization of lottery applicants meant that every existing I 502 retail store had in hand the primary merit consideration. And that every access point that hadn’t applied did not. Those with the easiest route to Priority I status were access points open and paying taxes before 2013 AND a lottery application in hand. Four of our five Transitioners met those criteria.

A marketplace developed for applicants that had one of the stated merit criteria and not the other. This became especially clear when most of the new retail allocation went to existing I 502 recreational stores, all of whom partnered with a criteria-eligible access point business partner or collective garden employee to meet both merit criteria. Applications were cobbled together to meet both criteria, usually in exchange for business partnership or payout, to such an extent that by mid-November more than 800 retail applications had been received by the WSLCB. That number increased considerably through the March 31, 2016 closure of the second retail window. In the book, we will look more in depth at merit criteria and the way it affected who was able to transition and who was not.

Parallel to the development of the merit criteria, the WSLCB found its retail window process challenged unexpectedly by another powerful State political force, the Association of Washington Cities. The new window was originally conceived as uncapped and indefinitely open: applications would be accepted, assigned a Priority Tier, and then approved on a rolling basis, at LCB discretion. Jurisdictions revolted en masse, individually and through the AWC, citing concerns about clustering and not willing to leave it to the LCB how many could open in each jurisdiction. Even Seattle pressured the LCB for a capped process that would specify how many per jurisdiction would be available, and to close the window sooner rather than later. Some of this pressure was amplified by a new I 502 trade association representing existing I 502 retail stores that clearly didn’t wan’t more competition. But jurisdictions backed up their concerns with a promise to limit new retail stores by zoning them out of possible locations and establishing minimum distance to existing retail stores.

As a result, the LCB initiated a process for determining how many new retail stores could open, and in mid December announced specific allotments per jurisdiction as well as an end-date to the window process. That’s a story for another post, but the takeaway point to this narrative is that the second window application process was shaped considerably by political pressure on the LCB after 5052 was passed. The messiness and discontinuity of that process can’t be laid at the feet of 5052 itself, nor the bureaucracy charged with its implementation. The difficulties with defining merit and the ease with which existing I 502 retailers gamed the system to grab new stores at the expense of possible Medical Transitioners is not strictly the fault of the legislature, nor of the LCB, but broader political and economic developments concerning I 502 in the rest of the State. In the book, we address the complexity of these power relationships as they were experienced by our interview subjects.

by Dominic Corva, Social Science Research Director

NOTE: this excerpt is from a work in progress, as indicated by the first paragraph. We will adjust our analysis going forward, without a doubt.

This post addresses a section of the retail chapter that is a recently discovered blind spot, and for which we have just begun to re-envision, through focused archival research and a few phone calls out. Until recently, Dr. Corva has understood SB 5052, the Rivers vehicle that ended “parallel” cannabis systems as of July 1, 2016, as coming a bit out of the blue due to Senate capture by Republicans in November 2015. In fact neither parts of that narrative are true, although they aren’t completely false either. This post provides a starting point for revising that history, that will be developed completely in the book.

First, let’s start with why it matters. The approximately biannual (because in Washington, bills have a two year life-cycle) tradition of Senator Kohl-Welles’ amendments to RCW 69.51.A since the 00s produced amendments in 2007 and 2010, but generally those amendments were aimed at increasing and/or improving patient access. For example, the 2010 amendment that liberalized authority to write authorizations may have had a great deal to do with the explosion of retail access points, in two ways. First, authorized patients were necessary for medical access points to function in compliance with State law, and now there could be a lot more of them. And second, for collective gardeners (some of whom were vertically integrated into retail spots), there was a surge of demand through less underground “off the street” outlets. Patients could be authorized to grow their own, but that didn’t mean they had the skill, time, or inclination to do so.

Senator Kohl-Welles’ 2011 bill, SB 5073, was a comprehensive reform of the Medical Cannabis legislation in that it sought to improve through regulating the increased and improved patient access to which her previous efforts contributed. There were a LOT of other factors, and it’s impossible to say what percentage each contributed, but here are a few: the election of “choom gang” veteran Obama to the presidency; the financial crisis that had most of our country trying to figure out how to pay mortgages and bills; the Ogden Memo and its successor Federal memos of which the Cole Memo is only the most recent and clearly spelled out; the bankruptcy of State and local budgets including for law enforcement against a plant; the widespread availability of information on how to grow cannabis on the internet; the completion of years-long prosecutions in favor of Medical Marijuana defendants that set a more liberalized precedent; and so forth. If not perfect, it was a hell of a storm for evolving social and policy conditions. And our subjects, along with many others, certainly found those conditions amenable to choosing Medical Cannabis livelihoods.

Certainly, the choices made by more and more people to practice civil disobedience against a racist, unjust and genocidal Federal prohibition meant more and more storefronts becoming visible in the landscape. They not only served a burgeoning number of authorized patients: they channelled cannabis markets off the streets and into a space of visibility that itself may have served to discipline violence associated with street corner dealing and turf warfare. They served to employ an army of unemployable people in the middle of the greatest financial crisis of our lifetime. In the book, we go into more detail about the social benefits of visible access points and the commercialization of domestic sinsemilla. But the point of this paragraph is to highlight the social conditions that, indisputably, made cannabis markets much more visible to policymakers and the public.

But prohibition culture did not recede as rapidly as the post-prohibition economy. Some lawmakers chose the old fashioned response to “seeing cannabis like a prohibition State” (see anthropologist James Scott on “seeing like a State“). Cannabis could be tolerated as long as it remained in the social closet, but the emergence of retail access points in the urban landscape began to promote a politics of “moral panic” that joined with other political currents (I 502 being one of them) to demand something be done. Senator Kohl-Welles SB 5073 caught the State legislature at a moment when the politics of regulation were just beginning to sort themselves out, when those politics could only be framed in terms of reforming the current system rather than attempting to re-create it via not just “recreational” law (I 502, one year later) but the subsumption of Medical into a Recreational legal framework (5052, four years later).

What seems clear is that SB 5073 represented a reformist turn for Senator Kohl-Welles, for which the legislature was ready (but not the Governor); that the Medical Cannabis community had started to go its own way via Representative Appleton in a “improve patient access” vehicle that went nowhere but siphoned energy from the previously unified Kohl-Welles Medical Cannabis front; and that power in the State legislature shifted away from Democrats (and therefore towards Republican lobbyist-recently-turned Senator Ann Rivers. Legislative focus shifted definitively away from “increasing patient access” towards “regulating patient access,” ostensibly in order to “improve patient access” via quality control.

At this point it is obligatory to state that the objective of improving patient access via quality control was always necessary and could have been a focus of legislative energy starting in 1998. It’s not the basic meaning of the discourse that became a point of major social conflict, it’s how the discourse was mobilized in a way that could not improve patient access because it was busy tearing up the access system that had evolved organically over 15 years, through Senator Ann Rivers.

In 2013, Rivers successfully killed Kohl-Welles’ efforts to resurrect SB 5073 and introduced her own vehicle, SB 5887, that definitively shifted how Medical Cannabis would be handled in the legislature right through to 5052’s radical re-writing of what it meant, legally, in Washington State. SB 5887 was introduced late in the 2013 session and re-introduced for the biennial 2014 session, when most of the legislative work that ultimately proved futile was done. It died when revenue sharing disagreements in the context of the ongoing State budget crisis proved irreconcilable. The end of the two-year legislative cycle meant that legislative reform efforts would begin again in 2015 with a clean slate.

Senator Rivers’ majority party advantage established through the “Majority Caucus Coalition” formed with two renegade Democrats 2012 was cemented by the November 2014 elections, when Republicans gained an outright majority. Any cannabis legislative vehicle would have to go through her, and thus the 2015 session began with a radical one: SB 5052. It was economically radical because it sought to re-create cannabis markets in Washington State, rather than align the old with the new via regulation; it was politically radical because it accepted no input or amendment from the political representatives and stakeholders that had been increasing and improving patient access since 1998; and it was culturally radical in that it relied on a campaign of “moral panic” to characterize the Medical Cannabis policy experiment in Washington State a total failure because Medical Cannabis people were “Bad Actors” creating a “Wild West,” “unruly,” and “out of control” environment. Collective gardens were unredeemably greedy, patients were 90% fakers and gamers of the system, and so forth. The only verifiable fact associated with this discourse was that yes, the State could finally begin to see Cannabis culture out of the closet and, over more than 20 years, totally invested in Medical Cannabis in all its definitions, and these just weren’t the people it wanted to regulate. Well, maybe some of them — but just a few.