Washington State House Commerce and Gaming Committee – Public Hearing
(January 21, 2019)

Here are some observations from the January 21st Washington State House Commerce and Gaming Committee public hearing for the home grow bill.

My top 3 takeaways:

  • Committee staff outlined HB 1131, an act relating to residential marijuana agriculture, and Representative Brian Blake, the bill sponsor, offered brief remarks to his fellow Committee members.
    • Washington State House Commerce and Gaming Committee Counsel Peter Clodfelter took members through the basics: “The bill would authorize home cultivation of marijuana subject to some restrictions included in the bill” (audio – 3m, video).
      • Six marijuana plants for an adult.
      • Production and possession limits for products derived from the plants.
      • A 15 plant limit per housing unit.
      • Provisions on marking cannabis containers and plants produced with the grower’s name, residential address, and date of birth plus the date of planting.
      • Containers with one ounce or less of usable cannabis would not be required to be labeled. Containers with more than an ounce would have to be labeled with similar information.
      • Processing from plants would be subject to the same rules that apply to the extraction and separation for qualified patients and designated providers.
      • The bill doesn’t restrict a property owner from prohibiting tenants from producing plants if addressed in a lease or contract.
      • It amends seizure and forfeiture statutes to protect the marijuana and plants produced.
    • The bill’s primary sponsor, Representative Brian Blake, talked about his history with the issue and the bill’s new structure. “Washington is a very progressive state, we allow folks to brew their own beer, make their own wine, grow their own gardens. And I think this is just an extension of that.” (audio – 1m, video)
    • Read Cannabis Observer’s January 14th legislative review of the bill.
  • A number of activists, business owners, and experts testified in favor of the bill along with the group behind the bill’s updated language, Homegrow Washington.
    • The first panel consisted of Danica Noble, Bailey Hirschburg, and Don Skakie (audio – 12m, video).
      • Danica Noble, chair of the Washington State Bar Association’s Antitrust and Consumer Protection section and founder of it’s Cannabis Law section, explained she had started the National Organization for the Reform of Marijuana Laws (NORML) Women of Washington chapter to bring together women advocating for “sensible and evidence-based” cannabis laws. She described home cultivation as a “health and moral imperative” as products in the legal market had labeling problems and could contain harmful chemicals. Citing Washington State Department of Agriculture (WSDA) tests of cannabis products showing illegal pesticides, Noble argued there was legitimate concern meriting a consumer right to home grows. Noble claimed the right was important for patients and voters who supported a cannabis approach that didn’t rely on criminalization: “If this law isn’t passed, we know exactly who will be arrested, and that burden will be disproportionately borne on the shoulder of black, and brown, and low-income communities.”
      • Bailey Hirschburg of Washington NORML and volunteer organizer on I-502’s 2012 New Approach campaign pointed to original campaign literature to remind lawmakers that voters told the state to stop treating marijuana as a crime. Hirschburg said discussions about home grow in 2012 were contentious and the campaign focused on cannabis possession to decriminalize the most prevalent cannabis-related activity in Washington. Acknowledging interest in cannabis revenues, Hirschburg asserted: “If this is only about the bottom line, then we’ve missed the point.”
      • Don Skakie, a patient activist and member of Homegrow Washington who worked with Blake to craft the legislation, considered the concerns of growers, law enforcement, and the public. Skakie showed the bill’s limits were in line with law in other jurisdictions and established constraints on accumulating crop so as to avoid diversion. Skakie outlined changes to seizure and forfeiture statute based on similar exceptions for legal cannabis businesses, and a new definition of “commercial activity.”
      • Vice Chair Kristine Reeves tried to ascertain who would enforce this law, how home grow laws were enforced in other states, and the cost. Skakie shared his conversations with WSLCB about enforcement of home brewing in Washington: “They get a couple of calls a year about homebrewers or home wine makers that say ‘Hey, it seems like there’s an awful lot of alcohol over here.’” Citing minimal enforcement in the area currently, Hirschburg added: “So what we’re looking at is formalizing the informal practice of continuing a focus on large grows, on criminally connected grows, or on grows that endanger the public.”
    • The next panel in favor consisted of Jedidiah Haney and John Kingsbury (audio – 15m, video)
      • Jedidiah Haney, a cannabis advocate, said the proposed law wouldn’t disrupt the legal market. He cited the state’s positive experience with micro brewing as a model for how the bill could help the cannabis industry, as well as being a basic civil liberty issue. Haney reminded members that jurisdictions with home grow rights included Washington, D.C.
      • John Kingsbury, a member of Homegrow Washington, agreed with others who pointed out how common home grow was to other states. “The only problems have been in Colorado, and they addressed them through reducing their plant count to 12. We’re asking for six, putting us in line with most other states.” He argued the cost and difficulty of home growing successfully would dissuade many from trying given the accessibility of 502 stores. On diversion: “I do not believe diversion happens from 6 plant gardens. Diversion happens from 100, 300 plant gardens and this bill does not legalize that.” In weighing the bill, Kingsbury said the committee should ask, “Should we make felons of people who grow a few plants for their own use of a substance we sell like beer?”
      • Assistant Ranking Member Kelly Chambers asked about the “dollar value on each plant.” Kingsbury pointed to the variations between outdoor and indoor plant quality and yield. Haney agreed and added that the harvesting and curing process created a narrow window of value.
      • Asking about the plant limit per housing unit, Reeves inquired how people would know if multiple growers were in a single building, and who enforced the limits. Saying that was a conversation about the definition of “housing unit” Haney concluded, “My experience being a renter, that’s stipulated in most of rental agreements.”
      • Representative Shelley Kloba inquired about seizure and forfeiture language being a source of concern. Kingsbury outlined the problem, “The Controlled Substances Act (CSA) says that if a person possesses five plants and, or more than 16 ounces and there is evidence of commercial activity, their property is subject to seizure. … How do you eliminate that conflict? How do you say ‘You can grow [six plants] legally, but we can take your stuff?” He explained the template the bill uses is the type of exception in law created for cannabis licensees or medical patients with personal grows. Kingsbury said the bill’s exemption was “very clean, very small, it’s defined.”
      • Representative Bill Jenkin asked about sourcing seeds and clones for first time growers. Haney identified a broad definition in the recent legalization of hemp in the federal Farm Bill meant seed breeders were selling openly. Haney said low tetrahydrocannabinol (THC) content of seeds and clones meant people weren’t exposed to potent cannabis until harvesting was completed. Kloba inquired about cannabis gifting, and if that could apply to seeds or clones. Clodfelter said existing law could be interpreted to allow for that. Haney added that registered cannabis patients and medical cooperatives could buy from producers directly.
    • Later, business owner Nik Grobins and Jim MacRae encouraged passage. The hearing concluded with testimony from Bob Costello (audio – 16m, video).
      • Nik Grobins with Hefty Harvest, a garden supply chain, said his business worked with both legal cannabis licensees and home growers. He’d noticed significant decline in sales over recent years; his business had lost 10 full time employees, and other stores around the state had already closed. Grobins tied home growing to a general lack of horticultural engagement by the public. He warned as businesses like his go under, the ability of licensees or potential home growers to buy equipment, nutrients and supplies within the state diminishes.
      • Jim MacRae said the only thing working about legal cannabis in Washington was the increased state revenue. MacRae pointed to the state’s failing medical cannabis system as a symptom of the industry’s problems and public lack of trust in it. Pointing to WSDA data on pesticide contamination in the legal market, MacRae tied home growing to pesticide concerns. He questioned earlier testimony (detailed below) equating large criminal grows with the small home grows proposed.
      • Bob Costello was a late addition to testimony. A retired school teacher, Costello found medical cannabis treated pain and improved his health. As a gardner and patient, he advocated “re-legalizing” the plant as common sense and an issue of justice (audio – 2m, video).
  • The Washington State Liquor and Cannabis Board (WSLCB), law enforcement, and prevention community representatives spoke in opposition to the home grow bill, while a panel of concerned activists raised questions.
    • The first group in opposition was WSLCB’s Chris Thompson, Steve Strachan, and Captain Monica Alexander (audio – 17m, video).
      • Chris Thompson, Director of Legislative Relations for WSLCB, testified about concerns the agency had on the issue. His agency believes continued illegality of small grows were “a modest help” to their mission and federal oversight. Thompson said the federal Cole Memorandum guided agency policy making on home growing, despite being rescinded last year. Thompson told members, “We think that helps protect our system from federal intervention.” The agency is also worried, he said, that home growing would provide cover to illicit grows. Thompson said WSLCB anticipated complaints about home grows and it wasn’t clear who would respond to those complaints. “We’re concerned it would be assumed that our agency would, and we do not have the resources to exercise enforcement in this area. Generally, law enforcement agencies and prosecutors are currently using discretion in not prosecuting small-scale marijuana grows because there are more serious crimes on which to focus.” Reminding the committee that patients already had the right to grow, Thompson concluded consumers were “well served” by the marketplace.
      • Washington Association of Sheriffs and Police Chiefs (WASPC) Executive Director Steve Strachan echoed fears from Thompson, cautioning against a “permissive environment” in the bill. Strachan described problems of cannabis diversion, money laundering, and human trafficking and said low-level illicit cannabis trade persisted in the state. “Because of the permissive environment, because of the view of the public that ‘Well, this is legal now. Why would law enforcement and prosecutors spend their time on this?’ There’s relatively low risk to that, so that is continuing.” He concluded the bill was not about personal use, but criminal markets.
      • Captain Monica Alexander with the Office of Government and Media Relations for the Washington State Patrol (WSP) said her agency opposed the bill because of questions over enforcement. In her view, the bill would “eliminate the ability to enforce illegal marijuana growing production.” Alexander said WSP felt illegal grow enforcement of any size would become “next to impossible” if home grows were legalized.
      • Representative Blake asked Thompson if diversion was a problem in the home brewing market. Thompson answered that he hadn’t spoken with enforcement about that specific concern, but that cannabis’s federal Schedule 1 status was a “major difference” between the substances. He said diversion, federal attitudes and “we can only assume, youth access” were why Colorado scaled back home grow limits.
      • Vice Chair Reeves asked the panel to share “homework” on the pros and cons of other legal states’ experiences with home grows. “I’m particularly interested in either the ripple effect or the ramifications of enforcement of this in other states.” She was interested in data with an emphasis on impacts to communities of color.
      • Representative Kloba was curious if federal enforcement differed in legal states which allowed home grows and if WSLCB had authority to enforce cannabis laws outside of 502 licenses. Thompson said they had no jurisdiction over illegal grows, but the agency did get involved if any licensee or employee of one engaged in illegal activity. He was unsure if any law enforcement agency wanted to “enter homes of people growing small-scale and engage in significant enforcement in that area.” He summarized federal attitudes on home grow between other states and Washington as a “small difference.”
      • Representative Brandon Vick noted all the panelists mentioned law enforcement entering homes. “Who’s asking for that? … Who cares?” Strachan responded that part of the issue was that voters wanted a “regulated” market for cannabis. He said lack of interest in enforcement by prosecutors and the public left a “grey area” where there wasn’t sufficient activity by law enforcement for small- or large-scale offenses. He said legal home growing changed that for the worse. Alexander added that WSP was forming task forces to target illicit grows in eastern and western Washington. She promised to share updates on task force efforts with the committee.
    • A panel of patients and advocates representing VIPER PAC raised questions about the structure of the bill and potential for abuse. Near the end, prevention lobbyist Seth Dawson weighed in against the legislation (audio – 8m, video).
      • Kirk Ludden, co-founder of VIPER PAC, patient, and self-proclaimed cannabis “outlaw,” spoke out in favor of the underground patient market. Warning that pesticide contamination in the legal market was a risk to his health, Ludden said cannabis should not be treated as a crime, pointing to prior legislation making cannabis consumption in parks a felony as evidence the legislature wasn’t honoring the public’s intent. He hoped new legislators would better uphold the public’s will. Ludden supported home growing rights, but felt the bills limits weren’t suitably progressive.
      • John Novak, another VIPER PAC co-founder, pointed to the “ultimate user” definition in the CSA that the bill references as needing to be expanded to all “lawful consumers of cannabis” in the state. Novak said the numbers in the bill’s seizure/forfeiture section had a serious flaw based on antiquated definitions of personal use. He said patients had experience with this flaw by having plant limits high enough to trigger seizure/forfeiture. Warning that multi-jurisdictional task forces could exploit this distinction, Novak urged members to raise the limit in the CSA.
      • John Worthington warned that a High Intensity Drug Trafficking Area (HIDTA) task force could end up enforcing the bill’s grow limits. He said federal grants meant to target large criminal grows ended up targeting patient grows, enforcing federal cannabis laws over state ones. Worthington urged diligent oversight by the legislature to thwart a bad habit of law enforcement using HIDTA and other federal task forces in this way.
      • Seth Dawson, representing the Washington Association for Substance Abuse and Violence Prevention (WASAVP) supported earlier opposition by law enforcement. He said it was difficult to gauge voter intent, then argued voters backing the New Approach campaign didn’t intend further steps after it. He said the plant limit wouldn’t be enforced, and that the legislature should address contaminated legal cannabis to make it “safe for the consumer” (audio – 2m, video).

Here are shared documents for your review:

Follow Up (January 28, 2019)

Here is more information about the January 21st Washington State House Commerce and Gaming Committee (COG) public hearing for HB 1131 and the home grow bill.

  • Complete Transcript. At the request of Homegrow Washington, Cannabis Observer generated a transcript of the public hearing for HB 1131. The transcript includes links to the video and audio recordings of each speaker’s testimony as well as the committee member question and answer segments.

The Washington State Liquor and Cannabis Board (WSLCB), law enforcement, and prevention community representatives spoke in opposition to the home grow bill, while a panel of concerned activists raised questions.

  • “Home Grow” Research Topic. We’ve gathered together information on home grow including the current bill(s), prior legislation, relevant primary sources, mentions or discussions in public meetings we have observed, plus select media coverage. We’ll continue tracking this cannabis topic and welcome suggested additions.

If you have a cannabis-related hearing you’d like observed, a transcript you’d like generated, or a research topic fulfilled: contact Cannabis Observer.

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