Editorial: Minor violations shouldn’t close cannabis growers

By The Herald Editorial Board

When the rules were being made following the passage in 2012 of Initiative 502 — which legalized recreational marijuana and provided for its production and sale — uncertainty about how the federal government would react led to some no-nonsense and necessary regulations that attempted to show that Washington and other states took seriously their responsibilities to keep cannabis from falling into the hands of kids, crossing state lines or finding its way into the black market.

During the span of the Obama and Trump administrations the attitude at the federal level has shifted from one of eased enforcement under Obama’s Justice Department, swinging to threats of a crackdown by Trump’s first Attorney General Jeff Sessions, and back again to guidance from new Attorney General William Barr that he won’t go after growers in states where marijuana is legal.

Some of that no-nonsense attitude, however, may have led to some rules and policies and their enforcement that has verged on harsh.

The Herald’s Janice Podsada reported last month how an Arlington cannabis grower, the Clone Zone, now faces a state-mandated loss of its license because it had been cited by the state Liquor and Cannabis Board four times between 2015 and 2017 for what the business, which employs 30 workers, considered “clerical errors” in labeling marijuana plants.

More than 25 producers state wide have seen their licenses revoked after also receiving four non-criminal violations in a two-year period. Marijuana plants are tracked “seed-to-sale” to assure there’s no diversion, but some violations can seem minor. A Clone Zone official said the company had been cited in one case for a smudged tag and in another for not tagging eight plants of 1,000 as soon as they had reached eight inches in height.

Many in the industry as well as lawmakers are questioning whether that heavy a hand on enforcement is necessary and whether its driving otherwise responsible growers out of the businesses.

Bills in the House and Senate — House Bill 1237 and Senate Bill 5318 — seek to emphasize compliance of state rules rather than aggressive enforcement that leads to loss of a license, while maintaining enforcement of violations related to sales to minors or diversion of produce. Both bills have been passed out of the original committees, but now need to be scheduled for subsequent committee hearing before a cutoff deadline Thursday.

Sen. Ann Rivers, R-La Center, sponsor of the Senate version, compared the needed reforms to the practice the state Department of Labor and Industries now uses in addressing violations, in which it works to ensure compliance rather than rack up violations.

Sen. Guy Palumbo, D-Maltby, also a sponsor, specifically referred to the example of the Arlington grower during a Senate committee hearing.

“There are people who are losing their livelihood and their investment because of (minor) violations. We have to move to a compliance mindset and not a law enforcement mindset in this industry,” Palumbo said, noting that one Clone Zone violation involved a handful of plants that were two inches too tall and just needed to be moved to another room.

“We should be able to let those people fix the violation and not lose their livelihood,” he said.

In some cases, as investigations follow complaints, businesses can be targeted by competitors and disgruntled employees, an industry representative said during a House committee hearing.

For its part, representatives of the Liquor and Cannabis Board said during the House committee hearing that the board is now going through rule-making that would modify the penalty structure for violations by growers, but also challenged lawmakers to be specific about how they defined a minor violation.

Shifting guidance from the federal Department of Justice gets much of the blame for uncertainty among state regulators about how strictly to enforce state rules that protect the public yet continue to support a fledgling industry.

Yes, serious violations, at all points of the “seed-to-sale” process, need to be investigated and enforced to — if you will — weed out the bad actors.

But responsible growers shouldn’t be driven out of business based on violations that wouldn’t have necessarily led to legitimate concerns about the safety of children and teens or the diversion of marijuana into the black market.

The loss of such businesses will only cost communities jobs that pay well and then play into the hands of illegal growers and sellers, removing the advantages that were sought in making recreational cannabis legal in the first place.