Marijuana as Nuisance?

This week we’ll hear the final reading of the newest incarnation of Tacoma’s attempts to address the issue of medical cannabis. The City recently scrapped its attempt to zone for medical cannabis-related uses within City limits in favor of an addition to the nuisance code listing marijuana-related uses that will be considered nuisances.

The amendment includes a reminder of the legal distinction between an “affirmative defense” (under state, but not federal law), and outright legalization, including an explanation that any production, possession, use, etc of marijuana is still illegal, but certain activities relating to medical use are classified differently from recreational use.

Producing, manufacturing, processing, delivering, distributing, possessing, and using marijuana are crimes under the municipal code, state law, and federal law. Washington state law, Chapter 69.51A RCW, provides an affirmative defense for certain marijuana-related crimes. There is no affirmative defense under federal law. This section is a civil remedy and does not alter or affect any criminal law governing the production, manufacture, processing, delivery, distribution, possession, or use of marijuana.

The production, manufacture, processing, delivery, distribution, possession, or use of marijuana for medical purposes for which there is an affirmative defense under state law may be a nuisance by unreasonably annoying, injuring, or endangering the comfort, repose, health, or safety of others; by being unreasonably offensive to the senses; by being an unlawful act; by resulting in an attractive nuisance; or by otherwise violating the municipal code or state law.

The proposed amendment identifies circumstances under which marijuana-related uses would be considered nuisances, but doesn’t do much to address those uses that would not be categorized that way.

The following specific acts, omissions, places, and conditions are declared to be a public nuisance, including, but not limited to, any one or more of the following:

1. Any marijuana garden is a nuisance per se.
2. Any dispensary is a nuisance per se.
3. Any place where marijuana is visible to the public or is visible from property owned or leased by another person or entity. This includes smoking malijuana in a manner that it is visible from public property or from property owned or leased by another person or entity.
4. Any place that marijuana can be smelled from a public place or from a property owned or leased by another person or entity.
5. Any collective garden located closer than the distance noted below to any of the following, whether in or out of the City:
   • Within 1,000 feet of any public or private elementary or secondary school;
   • Within 1,000 feet of any daycare, nursery, or preschool;
   • Within 1,000 feet of any church or other facility or institution used primarily for religious assembly purposes;
   • Within 1,000 feet of any drug rehabilitation facility, substance abuse facility, or detoxification center; or
   • Within 1,000 feet of any drop-in center for youth.
   • The separation required between the collective garden and other uses identified in this subsection shall be measured from the nearest edge or comer of the property of each use.
6. Any collective garden located in any of the following zoning districts: R-l, R-2, R-2SRD, HMR-SRD, R-3, R-4, R-4-L, R-5, PRD, T, C-l, C-2, HM, PDB, NCX, RCX, CIX, NRX, URX, HMX.
7. Any collective garden where any person under the age of eighteen years is present or is permitted to be present.
8. Any collective garden or medical marijuana garden that is not fully enclosed within a structure.
9. Any parcel containing more than one collective garden, medical marijuana garden, or combination of collective garden and medical marijuana garden.

10. Any collective garden or marijuana garden where any violation of Chapter 69.50 RCW occurs and for which the affirmative defense created by Chapter 69 .51A RCW would not apply.

11. Any place bearing a sign or placard advertising marijuana for sale or delivery.
12. Any place where any production, manufacture, processing, delivery, distribution, possession, or use of marijuana occurs for which there is not an affilmative defense under state law.
13. Any place other than a private residence where marijuana is smoked or ingested.

From the sound of this amendment, it would give the City a way to deal with complaints from neighbors and members of the public with objections to the presence of marijuana-related activity. It also appears to outline for those wishing to grow or use marijuana for medical purposes a set of parameters within which they could reasonably expect to do so without complaints (doing so in a manner where nobody knows about it).

Any non-medical use is automatically considered a nuisance as is any use where the drug is visible or otherwise observable by the public or other property owners. Medical-related uses are considered nuisances if they are too close to a “sensitive use,” visible or otherwise observable to the public or minors, or otherwise in violation of related state laws. The rules included in the proposed amendment, particularly those making outwardly visible activity a nuisance, could be interpreted as a bit of a “don’t ask, don’t tell” style compromise, which might be the best that can be done unless federal law changes.

So, does this ordinance only go half way to dealing with the challenge? Or is it the best available compromise?