Washington State Legislature – Cannabis Bill Activity
(March 25-26, 2019)

House committees heard testimony on SB 5605 to vacate misdemeanor marijuana convictions and recommended a new version of SB 5318 to reform WSLCB enforcement powers.

Here are some observations from Monday March 25th and Tuesday March 26th Washington State Legislature public meetings.

My top 3 takeaways:

  • The House Public Safety Committee hosted a public hearing for SB 5605, “Concerning misdemeanor marijuana offense convictions.”
    • See details on the Senate policy committee public hearing and executive session, and the Senate fiscal committee public hearing and executive session. SB 5605 was passed by the full Senate on March 11th without amendments.
    • Committee Counsel Kelly Leonard briefed members (audio – 3m, video); from the House Bill Analysis:
      • Requires a court to vacate a misdemeanor marijuana possession conviction upon the application of a person who was age 21 or older at the time of the offense.
    • Committee Chair Roger Goodman asked staff if the bill impacted municipal code cannabis misdemeanors. Leonard replied the bill cited state statute and “does not speak to municipal ordinances, either equivalent municipal ordinances or those that adopt the [Revised Code of Washington (RCW)] by reference.” Goodman stated that further changes might be necessary as “probably the vast majority of marijuana misdemeanor convictions were in municipal areas” (audio – 3m, video)
    • Ranking Member Brad Klippert asked how the bill stacked up to HB 1500, which the committee heard and passed in February. Leonard stated the companion bills had been initially identical and, while SB 5605 remained unchanged, the committee adopted a proposed substitute for HB 1500 which was then amended. HB 1500 was not subsequently taken up by the House Appropriations Committee.
    • Noting that the statute referenced in the bill dated to 1998, Goodman said “there were quite a number of convictions before 1998” that would have to be “added in.” SB 5605’s sponsor, Senator Joe Nguyen, immediately declared “I’m in, that sounds fantastic.”
    • Goodman said he didn’t plan to amend this bill to require local prosecutors to file on behalf of people vacating misdemeanors because prosecutors represented the state “and it would be kind of awkward for them to be filing on behalf of former defendants.”
    • Senator Nguyen then spoke to his bill saying it was “righting the wrong of an injustice in the past of a law that disproportionately impacted communities of color.” He felt compelled to act because “the war on drugs was a failed effort that largely impacted communities that I care about a great deal.” Nguyen said this led to “complications” in peoples’ lives for behavior now legal, “everything from finding housing, finding jobs, even going to school and supporting their kids in a field trip” (audio – 1m, video).
      • Goodman inquired if vacation of misdemeanor possession convictions for people with additional criminal history was acceptable to Nguyen. The senator replied, “That sounds great to me because I think oftentimes it’s a cycle. Once you get caught up in our judicial system you are put in this vicious cycle where your hardships oftentimes define your outcomes.” He believed the bill could impact recidivism for those having served a sentence (audio – 6m, video).
      • Representative John Lovick asked how many cases would be impacted by the bill. Nguyen responded there were “about 68,000 misdemeanor convictions which impacts about 40,000 people.”
      • Klippert, citing his experience as a Superior Court Deputy in Pierce County, questioned if the bill’s language “Permitting the applicant to withdraw the applicant’s plea of guilty and to enter a plea of not guilty” would create situations where defendants would perjure themselves before the court. Staff replied that “there is a distinction between testimony in court and a plea that’s entered in a particular case. My understanding is that perjury does not apply to your plea, it only applies to the testimony that you provide.”
      • Representative Robert Sutherland asked about statistics supporting Nguyen’s claim of racial disparity in arrests. Nguyen said that while cannabis use has been roughly equivalent between racial groups, for arrests “about 1.7 to two times as much” were from communities of color. Sutherland asked Nguyen to get an “exact number” for racial disparities in arrests among the 40,000 people affected by the bill.
    • Lara Kaminsky, Executive Director of the Cannabis Alliance, reported that vacation of misdemeanors was voted the organization’s top legislative priority by the group’s members. She said she was “very happy” to be supporting the measure and hoped that it moved forward (audio – 1m, video).
    • Logan Bowers, owner of retailer Hashtag Cannabis, urged passage of the legislation. He claimed “the voters spoke in 2012” and the legal industry in the state had shown that public safety concerns around the plant were “unfounded” making the misdemeanors in question similarly unjustifiable (audio – 1m, video).
    • William Gipson, a concerned citizen, offered a personal view of the issue. He explained he was “one of the 40,000” impacted by the bill. Gipson said he’d “tried to move forward in my life” but experienced “difficulties” even after serving a sentence handed down when he was a juvenile. He said he’d been “coerced into pleading guilty” as a teenager when a prosecutor and lawyer told him such a plea was the best way to get a conviction “behind him.” Instead, the charge followed Gipson, keeping him from employment and business loans. He described it as something that “hunts you the rest of your life” (audio – 2m, video).
      • Representative Jenny Graham asked Gipson if he was guilty of the cannabis offense. “Circumstances,” he said and indicated his social circle at the time did “not [want] to run from the police.” Graham persisted in her request for an admission of guilt and Gipson complied. Graham said, “I’m somebody that supports trying to help…people, but I think that’s part of it, coming to the realization – were you guilty or were you not guilty at that point? And then I think, moving on from there, thanks” (audio – 2m, video).
    • Goodman said the committee would address the bill during executive session “next week.”
  • The House Commerce and Gaming Committee amended and passed SB 5318 regarding WSLCB enforcement powers.
    • See details on the bill’s Senate policy committee public hearing and executive session, and the Senate fiscal committee public hearing and executive session. Engrossed Substitute SB 5318 (ESSB 5318) was passed by the full Senate on March 11th with a striker amendment. In the House, the Commerce and Gaming Committee hosted a policy committee public hearing prior to the executive session scheduled for Tuesday March 26th.
    • Committee Counsel Peter Clodfelter briefed members on the bill’s amendments (audio – 5m, video).
      • Amendment H-2434.3, offered by Representative Steve Kirby, was a striking amendment with the following effects on the bill:
        • Amends one of the enumerated circumstances in which the Liquor and Cannabis Board (LCB) may issue a civil penalty to a marijuana licensee without first issuing a notice of correction, may cancel a license for a single violation, or may consider certain prior violations when making negative licensing decisions, so the LCB may do so when the LCB can prove by a preponderance of the evidence the violation is the diversion of revenue to criminal enterprises, gangs, cartels, or parties not qualified to hold a marijuana license based on criminal history requirements.
        • Eliminates from the enumerated circumstances in which the LCB may issue a civil penalty without first issuing a notice of correction, may cancel a license for a single violation, or may consider certain prior violations when making negative licensing decisions, the act of using firearms in a facility licensed by the LCB that poses a direct and significant threat to public safety.
        • Amends the new limitation that applies to escalating penalties for violations so an escalation of penalties applies only to multiple violations that are the same or similar in nature.
        • Replaces the new clear, cogent, and convincing evidence standard with a preponderance of the evidence standard in the context of the LCB proving violations that are punishable with license cancellation, denial, suspension, revocation, or nonrenewal.
        • Provides that the LCB may not consider any violation that occurred more than two years prior (rather than occurred before April 30, 2017), as grounds for denial, suspension, revocation, cancellation, or nonrenewal, unless one of the enumerated circumstances applies.
        • Authorizes the LCB to consider a public safety administrative violation history record with the LCB in the context of reviewing a marijuana license application and for considering the denial, suspension, revocation, cancellation, or nonrenewal of a marijuana license (so the LCB is not limited to only considering arrests, convictions, and a criminal history record check).
        • Eliminates, from the new limitations on the LCB’s use of settlement agreements, the provision that the LCB may only disapprove, modify, change, or add to the terms of a settlement agreement if the LCB finds an agreement to be clearly erroneous.
        • Retains the requirement that the LCB must give the terms of a settlement agreement substantial weight.
        • Eliminates the creation of the Legislative Work Group on Cannabis Enforcement and Training Processes and Procedures.
      • Amendment 5318-S.E AMH COG CLOD 044, from Chair Derek Stanford, was an amendment to Kirby’s striking amendment that:
        • Changes the use of the terms “responsible party” and “person” to say “licensee” in the context of notices of corrections and civil penalties issued by the Liquor and Cannabis Board (LCB).
        • Codifies Section 3 of the bill, relating to the LCB’s issuance of civil penalties, in chapter 69.50 RCW instead of chapter 43.05 RCW.
        • Changes the use of the term “hearing examiner” to “hearing officer” in the context of the settlement conferences that may be held between a hearing officer of LCB designee and the licensee that received a notice of an alleged violation.
    • Stanford said his amendment would “make a few technical changes in wording” without changing policy in the bill. It was passed unanimously by a voice vote (audio – 1m, video).
    • Next, the committee discussed Kirby’s striking amendment, as amended by Stanford (audio – 4m, video).
      • Kirby explained the amendment was “[the] result of a great deal of stakeholder work.” Kirby admitted “I went out there pretty far” on HB 1237, the House companion bill he sponsored, likening it to “squashing a fly with a sledgehammer.” However, he added, “it provided a really excellent opportunity for everybody to get together and come to agreement over the senate bill.” Pronouncing the bill “ready to go,” he highlighted one change: “I have it on good authority that we needed to take out the legislative work group if we wanted to have any bill at all.” While not elaborating on the source of that message, Kirby said “for the most part” stakeholders wanted the bill even without the work group.
      • Representative Brandon Vick called the bill a “first step” in “a subject matter that’s only growing” while conceding there were “still some corrections to make in the grander scheme” of cannabis policy beyond the bill.
      • Kirby’s amendment was adopted unanimously by voice vote.
    • The roll call vote for passage of the amended bill recorded all committee members in favor except Representative Bill Jenkin. Representative Jesse Young was not present for the vote.
    • The amended bill was referred to the House Rules Committee with a “Do Pass” recommendation.
  • Executive sessions were scheduled but no action was taken on two other cannabis-related bills: SB 5298 (labeling) and HB 1430 (SMP account).
    • SB 5298“Regarding labeling of marijuana products.”
    • HB 1430“Concerning the licensing and enforcement system modernization project (SMP) account.”
      • HB 1430 was passed by the full House on March 7th without amendments and the Senate Ways and Means Committee hosted a public hearing for the bill on March 19th. HB 1430 was scheduled for executive session on Monday March 25th but no action was taken.
      • HB 1430 is WSLCB agency request legislation seeking to retain access to the remaining $1.2M allocated for the Systems Modernization Project (SMP). The SMP is intended to update antiquated computing infrastructure the WSLCB Licensing and Enforcement divisions depend on. The recently released House budget allocated an additional $8.7M for the SMP project which was initiated in February 2016. WSLCB Deputy Director Megan Duffy recently noted implementation of the SMP project had been further postponed because of on-going failures to deliver the contracted features of the traceability system.
Here are shared documents for your review: