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City Ban on Pot Gardens Upheld in Wash. State

SEATTLE (CN) - Medical marijuana is still illegal in Washington state, an appeals court ruled as it upheld the City of Kent's ban on medical marijuana collective gardens.

The Cannabis Action Coalition and four individuals challenged Kent's prohibition of medical marijuana collective gardens in 2012. They claimed the city's regulation conflicted with the state's Medical Use of Cannabis Act, or MUCA.

In 2011, the state Legislature passed an amendment aimed at legalizing medical marijuana by creating a state registry of users. But Gov. Christine Gregoire vetoed more than half of the bill, leaving intact only the sections that protected qualifying patients and growers from state prosecution or civil suits.

Washington voters passed an initiative legalizing small amounts of marijuana for recreational use in 2012, but the law doesn't address medical marijuana use.

The state superior court dismissed the claims of the Cannabis Action Coalition and three of the individuals for lack of standing.

Kent resident Deryck Tsang, who currently participates in a collective garden there, proceeded with the lawsuit.

The lower court held that the ordinance is not preempted by state law and did not violate Tsang's rights. It also granted Kent's request for an injunction barring the plaintiffs from violating the ordinance.

That injunction was stayed on appeal.

The Washington Court of Appeals ruled Monday that the governor's vetoes effectively voided the sections that made possession and use of medical marijuana legal. Medical marijuana users and growers are only entitled to an affirmative defense to criminal prosecution, according to the ruling.

"Thus, the plain language of the statute does not legalize the use of medical marijuana," Judge Stephen Dwyer wrote for the court. "Instead, it provides a defense to an assertion that state criminal laws were violated. As such, medical marijuana use, including collective gardens, was not legalized by the 2011 amendments to the MUCA."

Kent's ordinance "prohibits an activity that constitutes an offense under state law," and is not in conflict with the Medical Use of Cannabis Act, the court found.

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