The Take Away from Cannabis Delivery Services in Washington: Clear as Mud

The other day I received a phone call from someone befuddled about the legality of cannabis delivery in the recreational market in Washington state. “What is going on? I didn’t think you could do delivery but there are delivery services popping up all over… there are rumors they don’t have business licenses, that they are delivering more than marijuana, they are online, accepting credit cards, what the…” I am paraphrasing but speaking with other customers in the area, with similar questions, rumors, innuendo, even accusations are top of mind and though no one wants to go on the record, everyone seems to be talking about it.

The topic has been discussed so much so that an article written by Hunter Stuart for the Huffington Post aked Washington NORML’S executive director what the heck was going on. He told them, “I’m amazed these services are allowed to operate, knowing what the law is….” which is that cannabis delivery services are against the rules.

Sorting through the laws and regulations about cannabis can be daunting. Statutes are long and contain a lot of seeming superfluous language making it exhausting to find the answer to a simple question, “Can I deliver products to qualified customers?” Some may say this is why we have lawyers, but we can’t all afford to phone the lawyer every time we have a simple question, not to mention, lawyers answers are often long and contain a lot of seeming superfluous language. Laws regarding the cannabis industry are further complicated by the regulations enacted by boards which, when reading these regulations, often make one wonder if the board actually read the statute.

With this in mind, it’s no wonder Washington dispensary owners have been confused by the laws about and rules around delivery. And perhaps, why so many dispensary and delivery service business owners are reluctant to talk about their experiences. I’m not a lawyer, but I have wifi and learned to read at an early age, so let’s take a walk through Washington’s sixty-five page Initiative Measure No. 5021: “AN ACT Relating to marijuana; amending RCW 69.50.101, 69.50.401, 69.50.4013, 69.50.412, 69.50.4121, 69.50.500, 46.20.308, 46.61.502, 46.61.504, 46.61.50571, and 46.61.506; reenacting and amending RCW 69.50.505, 46.20.3101, and 46.61.503; adding a new section to chapter 46.04 RCW; adding new sections to chapter 69.50 RCW; creating new sections; and prescribing penalties.”2 (oh my…) and see if we can sort it out. I am referencing the Initiative Measure rather than the statute itself3 because, quite frankly, I wish to finish writing this post in my lifetime.

The very first section tips us off that if we really want to know what the actual rules are, we have to go to the Liquor Control Board and read their enacted regulations:

“This measure authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older…”4

But before we head over there, lets finish our look over the Initiative to see why dispensaries may have thought it was OK to offer delivery service. If you thought, “I’ll scan the Initiative to find the answer the question, is it OK to offer delivery?” it seems logical that you might download the document and do a search for “deliver.” Seems reasonable. If you did this, this is what you would find:

(f) “Deliver” or “delivery,” means the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship.”5

OK. Great! They are going to address the question of cannabis delivery. Not cannabis delivery, vis a vis how it is introduced into a person’s body, but delivery vis a vis transferring it from from one person to another. This is good news. We’re on the right track.

Next, the definition of “Dispense” includes all the activities associated with preparing a cannabis “prescription or order for delivery.”6 Yes, delivery means from one person to another and perhaps the legislature meant handing it over the counter but one can understand a business owner thinking delivery may mean taking it to the customer where they are.

The Initiative goes on to empower the Liquor Control Board (LCB) to make rules specific to “times and periods when, and the manner, methods, and means by which, licensees shall transport and deliver marijuana, useable marijuana, and marijuana-infused products within the state.”7 Given that usable marijuana and marijuana-infused products are items dispensaries sell it would be reasonable to think, as an owner, that the LCB would chose times and periods these items could be delivered rather than just saying the times and periods are never. Particularly when the Initiative goes on very specifically charing the LCB to “take into consideration: the provision of adequate access to licensed sources of marijuana, useable marijuana, and marijuana-infused products to discourage purchases from the illegal market.”8

The fact is the old system of cannabis sales is largely made up of delivery service. If you are already high and want marijuana are you going to travel to a dispensary or are you just going to call someone who delivers? Not only is the LCB asking an entire demographic to change the way they shop overnight, couldn’t the argument be made that it is safer for the public for marijuana to be transported by delivery drivers with safety measures in place? And, given the charge to ensure adequate access, until, as with liquor you can buy marijuana at any corner store, doesn’t delivery ensure adequate access? But, I am getting ahead of myself.

Finally, there is Part 3 Section 15 which ensures the following is not a violation of state law when performed by a “validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board:

Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older:
(a) One ounce of useable marijuana;

(b) Sixteen ounces of marijuana-infused product in solid form; or
(c) Seventy-two ounces of marijuana-infused product in liquid form.”
9

OK, so maybe after all the discussion of delivery prior to Section 15 one can say that here, in Section 15, the legislature makes clear that by delivery they mean from one person to another inside a retail outlet, however, one might also note that the Initiative doesn’t specifically exclude delivery outside this area but, neither does it include it.

Of course this is why regulations are so important: to interpret statutes, make the rules, and explain those rules in clear understandable language. But reading the rules after reading a statute which seems so clearly to anticipate delivery, from one person to another, is sobering. Read slowly, because the prohibition is swift (blink and you’ll miss it).

314-55-079
What is a marijuana retailer license and what are the requirements and fees related to a marijuana retailer license?

(1) A marijuana retailer license allows the licensee to sell only usable marijuana, marijuana-infused products, and marijuana paraphernalia at retail in retail outlets to persons twenty-one years of age and older.

(3) Internet sales and delivery of product to customers is prohibited.10

So there you have it. Confusion made clear. We can only hope that the LCB will come to understand the benefits of delivery and change the rules. In the meantime, keep exploring, questioning, and challenging!

 

 

 

1 http://lcb.wa.gov/publications/Marijuana/I-502/i502.pdf
2 Code Rev/AI:crs I-2465.1/11
3 http://apps.leg.wa.gov/RCW/default.aspx?cite=69
4 Code Rev/AI:crs I-2465.1/11, Pt. 1 Sec. 1
5 Code Rev/AI:crs I-2465.1/11, Pt. 2 Sec. 2
6 Code Rev/AI:crs I-2465.1/11, Pt. 2 Sec. 2
7 Code Rev/AI:crs I-2465.1/11, Pt. 3 Sec. 9
8 Code Rev/AI:crs I-2465.1/11, Pt. 3 Sec. 10