Appeal: Attorneys for dispensary denied license say public safety hazard not proven

Lawyers for Lacey Cross – a store on Pacific Avenue that sells medicinal marijuana – have filed an appeal in Thurston County Superior Court seeking to overturn the city’s denial of its business license application.

The land-use petition filed by Seattle attorneys Charles Moure and Hilary Bricken states that the Lacey City Council erred during a Dec. 1 hearing when it upheld a land-use hearing examiner’s denial of Lacey Cross’s application for a business license.

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The appeal takes aim at Lacey police officers’ contention that allowing Lacey Cross to operate with a business license would constitute a public safety hazard.

Bricken said in a phone interview Tuesday that during Lacey police officers’ testimony to the city, they did not make their case.

“It has to be justifiable evidence that it poses a public safety hazard, which it has certainly failed to do,” Bricken said.

The appeal also alleges that the city relied upon an “arbitrary and erroneous” interpretation of both the Federal Controlled Substances Act and Washington medical cannabis laws in arriving at its decision to deny Lacey Cross a business license.

State law provides for “collective gardens for the purpose of producing, processing, transporting and delivering cannabis for medical use,” under a number of conditions, including limits on how many patients may participate at a time and how much marijuana a collective garden may produce.

Lacey Cross and other Thurston County medicinal marijuana establishments argue that they are protected under the collective gardens provisions of the state’s medicinal cannabis statute.

However, law enforcement officials say there is no provision under Washington law that legalizes the sale of marijuana to anyone, including medicinal marijuana patients.

They also argue that under federal law, possessing or selling marijuana is illegal.

Lacey Cross is one of five so-called medicinal marijuana dispensaries that were shut down Nov. 15 during raids by the Thurston County Narcotics Task Force, with assistance from the Drug Enforcement Administration.

Although police made 17 arrests at the five dispensaries, including several at Lacey Cross, no one has been formally charged.

Attorneys for Lacey Cross have said that the appeal of the Lacey City Council’s business license denial places a stay on the proceedings, allowing it to remain open without a business license.

Lacey Cross was open for business Tuesday morning. But Lacey Police Lt. Phil Comstock said there is nothing in the city’s municipal code that would allow for a stay in proceedings until Lacey Cross’ appeal is heard in Superior Court.

He added that Lacey Cross or any other medicinal marijuana store operating without a business license is subject to a misdemeanor citation.

Comstock declined to comment on what, if any, actions police might undertake to close Lacey Cross or other medicinal marijuana establishments in Lacey.

Lacey Cross’ new owner, Casey Lee, 36, said Tuesday that his business was warned by police to close after the city upheld the denial of its business license on Dec. 1.

He said the store stopped selling medical cannabis after the police warning, but remained open to offer advice and counseling to medicinal cannabis patients.

He confirmed that Lacey Cross had reopened as of Dec. 27, under the legal argument that his attorneys’ appeal placed a stay on the denial of his business license.

“We’re trying to (do) everything right and follow all the rules,” Lee said.

It is unclear what impact having or not having a business license has on any of the medicinal marijuana establishments’ practical ability to remain open in Thurston County.

A downtown Olympia medicinal marijuana store, The Healing Center at 316 Capitol Way, does not have a business license, according to city officials, and it reopened the day after the Nov. 15 raid at its premises.

Another Lacey medicinal marijuana store, Cannabis Outreach Services at 5709 Lacey Blvd., had its temporary business license revoked over the summer, and it also has remained open in the aftermath of the Nov. 15 raids, according to its proprietor.

Another Thurston County medicinal marijuana establishment that was closed during the Nov. 15 raids, The Olympia Patient Resource Center at 420 Steele St., has remained closed.

Employees at the fifth establishment that was closed during the raids, Triple D’s at 21530 Old Highway 99 in Rochester, could not be reached for comment Tuesday.

Law enforcement officials in Thurston County, including Prosecuting Attorney Jon Tunheim, have said that the any establishment that sells marijuana, even if it’s being sold to a medical cannabis user in possession of a valid green card from a doctor, is breaking the law.

Tunheim has said that it’s his understanding that criminal charges will be filed in connection with the narcotics task force’s investigation that led to the Nov. 15 raids in Thurston County.

Capt. Dave Johnson of the Thurston County Narcotics Task Force has said that he would not comment on whether there are any pending law enforcement investigations of the medicinal marijuana establishments in Thurston County that remain open for business.

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Lacey Cross is the only one of the five Thurston County medicinal marijuana establishments closed during the Nov. 15 raids that was subject to a federal search warrant, filed in U.S. District Court in Tacoma.

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In a news release, the U.S. Attorney’s Office states that its participation in the Nov. 15 raids across Western Washington targeted “commercial enterprises that purport to operate as ‘medical’ marijuana establishments but also fail to comply with applicable state law.”

The unsealed federal search warrant affidavit for Lacey Cross stated that undercover detectives with the Thurston County Narcotics Task Force “made numerous controlled buys” of marijuana from Lacey Cross during its investigation.

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The affidavit also states that narcotics detectives monitored a Facebook page of one of Lacey Cross’ proprietors, which was not set to private.

A photo on the suspect’s Facebook page showed three duffel bags full of cash, and underneath the photo, a caption read, “This gonna take all night to (Laugh Out Loud),” according to the affidavit.

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