OPINION: Liquor Cannabis Board Agents May be Operating Beyond Their Legal Authority

by Luna Reyna

Washington State is grappling with police violence and accountability issues. Over the past year, we have witnessed citizens' frustration spill into the streets, many demanding to defund the police entirely. Meanwhile, more than $24 million in cannabis taxes are going to the Washington State Liquor and Cannabis Board (LCB) whose Liquor Enforcement Officers (LEO) are issued uniforms with police patches and jackets with "POLICE" plastered in front and back despite not having adequate training or the authority these things allude to. LCB vehicles have also been modified with the same red and blue strobe lights as typical police cars. Until a security risk management firm review in 2019, all agents carried a mandatory firearm. Another $5.6 million goes to an actual drug enforcement task force run by Washington State Patrol.

After Initiative 502 (I-502) passed in 2012, which made Washington the second state in the country to legalize recreational cannabis, it was largely celebrated. Many supporters had hopes that Washington's recreational cannabis industry could be a template for other states that weren't far behind. In the excitement to legalize cannabis, the existing regulatory body, the Washington State Liquor Control Board, was renamed the Washington State Liquor and Cannabis Board (LCB) and tasked with the licensing and regulation of all marijuana production, processing, and sales. Within weeks, the newly appointed LCB leaders violated open public meetings law by meeting at least 17 times with local police and prevention groups privately.

This has colored the ways in which the LCB has operated since. Just a few months after I-502 was passed, the LCB attempted to classify LEO as a general authority Washington law enforcement agency through proposed legislation HB 1876, which would have amended current law to include a "peace officer or enforcement officer of the state liquor board" in the definitions of both "criminal justice personnel" and "law enforcement personnel." The amended language would have changed what was largely intended to simply be a regulatory agency into an agency with the authority to arrest lawbreaking individuals, write search warrants, access criminal databases, or perform similar key functions in conducting criminal investigations like any other state police officer.

Rick Garza, who was appointed LCB agency director in 2013, was present at the private illegal meetings with police that year. Garza remains in this position to this day and has continued in the effort to convert the LCB from a regulatory agency to one in line with the local police. When the first attempt failed, two new bills for general police authority were proposed in 2014, HB 2394 and SB 6130, which would have amended current laws in place for criminal justice training standards. During a House Public Safety Committee Meeting for HB 2394 in January of 2014, Justin Nordhorn, the chief for the enforcement and education division of the LCB at the time, candidly asked for full general authority police officer powers.

Both of the attempts in 2014 failed. As did the attempt in 2015 and the attempt in 2016 and in 2017. Every attempt the LCB has made to expand their enforcement powers has failed because it is generally perceived as an overreach, even by local police. The Senate bill report for SB 5132 in 2017 clearly states that "The ability to enforce laws around patron conduct are particularly concerning and duplicative of law enforcement powers." It goes on to state, "Law enforcement is concerned when an agency proposes to expand its limited authority beyond the scope of the regulatory purpose for which it was created." Those opposed included James McMahan of the Washington Association of Sheriffs and Police Chiefs (WASPC).

A 2007 job announcement detailed how newly hired LEOs would be required to participate in two training programs: Basic Law Enforcement Academy (BLEA) and a formal 12-month field training officer program. Because the LCB maintains that agents are limited-authority peace officers, many people applied thinking they would receive BLEA training through the Criminal Justice Training Commission (CJTC), but when then-LEO David Stitt requested BLEA training, he was told by his chief that he was already trained by the standard of the day and was denied the further training. "In the beginning I didn't know what the implications of that were. I just wanted to do my job. But later on what I found out was that they had put us into a risky liability situation," Stitt explained to me in an interview.

Stitt was concerned about potential lawsuits and civil claims that could arise out of the type of enforcement heavy work that was required of him, so when he was denied BLEA training in May 2015, he quit.

A current LEO at the LCB who asked to remain anonymous (I'll refer to them as Walter) explained these concerns further.

"We have in-house training officers that are carrying badges and guns. How is that even remotely possible when you haven't sent people to the police academy?" he said in an interview. "Eventually, if one of us pulls the gun out and shoots somebody and that report becomes a part of the defense attorney's evidence, who's going to pay for that risk-management-cost lawsuit?"

John Jung, a current LEO, began working for the LCB in March of 2008. Jung spent more than five years investigating organized criminals with the U.S. Department of Homeland Security Investigations with the LCB as a task force officer. When Jung became aware of the LCB's many attempts to obtain general police authority, he began asking questions. By 2014 he was raising concerns about the agency's lack of authority.

In a 2018 email between Jung and LCB Chief Nordhorn obtained through public records requests, Jung begins by stating, "I have always prided myself in serving the public and this state with distinction and integrity." Jung went on to request the BLEA training. Nordhorn claimed that Jung's requests for BLEA training were unwarranted. Nordhorn has overzealously interpreted four legislative statutes to provide the LCB with limited authority peace officer powers without the State-required certification by the CJTC — something Nordhorn himself admitted is the State standard. This email also details another LCB agent who was proven to have perjured themself in court by identifying as a peace officer.

In the same email, Jung attached an official LCB document that was obtained through a public records request, which gives "examples of where LCB officers could have acted if they had the appropriate authority." According to this document, the LCB cannot even intervene if they see a licensee smoking cannabis on a licenced premises. Instead, they should have to contact the local police since they are considered a limited-authority regulatory agency.

It is clear from this document — and others I have reviewed — that Jung and Stitt were right to be concerned about the overreach of the LCB and their roles as LEOs.

Jung's outspoken advocacy for the public's rights, which he believes are being violated, has resulted in him being harassed internally according to his March 2019 testimony before the Commerce and Gaming Committee in favor of SB 5318. "I could've remained silent about this action and allow this agency to continue to misuse its authority against the public," Jung said in his statement. "However, my personal integrity is greater than the fear of retaliation, and that's why I've decided to speak out in order to hold this agency accountable and transparent because the public deserves more."

Originally, SB 5318 would have set up a Legislative Work Group that would investigate the complaint against the LCB and reestablish cohesive training and guidelines as well as the required qualifications and experience necessary for LEOs, which would have completely restructured the LCB. Most importantly though, SB 5318 could have created an ombudsperson who would handle licensees' concerns about the LCB without threat of retaliation. None of this was included in the final bill, however, even after a bipartisan group of ten legislators wrote a letter to Governor Jay Inslee about the LCB's "toxic culture."

Less than a year later, the LCB attempted to pass HB 1626 in an effort to expand their authority. Once again, it failed. However, it seems the LCB may still be operating outside their authority.

"In fact, LCB has been serving search warrants at private homes related to marijuana grows; in essence, performing criminal investigations at unlicensed marijuana premises when they are currently seeking authority to conduct criminal investigations at licensed premises," Jung said in an email on November 1, 2019, to Representative Roger Goodman that was obtained through a public records request. "The most we are able to do is to cite businesses for allowing disorderly conduct, but never into specific criminal investigations such as prostitution, drug dealing, trafficking weapons, etc."

The 2019 independent review of enforcement operations and management of the LCB done by Hillard Heintze (HH) — one of the leading security risk management firms in the world — echoed the concerns of the WASPC in 2017, revealing that, "Current policies, training and metrics reflect law enforcement strategies, rather than those specifically developed for regulatory agencies." The HH review was commissioned by the LCB as a way to appease those who asked for accountability and major structural and cultural change through SB 5318. According to their own commissioned review, the emphasis on law enforcement has resulted in officers not fulfilling their roles as regulators and lacking in the training necessary for them to adequately regulate cannabis.

The HH review also details how the LCB hires ex-police officers without reviewing the necessary qualifications for them to work in a regulatory setting. These ex-police officers are BLEA-trained through the CJTC as police officers, but once they leave a general authority agency their peace officer status no longer stands. Yet once the officers are hired, they are given "a significant amount of autonomy in the field," according to the HH review, with little oversight to ensure accountability. This dangerous lack of oversight has resulted in "licensees' unwillingness to provide feedback or complaints because they have a fear of retaliation."

In February of this year a Government Accountability Institute (GAI) report titled "Cannabis Cronyism" ridiculed the LCB for the way the agency presents itself as having "cop" authority. The report details how "the agency has conducted criminal investigations and served warrants." It explains: "Judges who sign these warrants are under the mistaken impression that the LCB's officers have the legal authority to enforce laws, since they act like typical police. This issue is controversial because the LCB is a regulatory agency that has not been granted legal policing authority."

The HH review recommended 18 major structural changes that echo the changes outlined in SB 5319, which the LCB fought against. From the agency's mission statement and goals to training and education, every aspect of the agency is recommended for reconsideration, reorganization, and reassessment, the report says. Instead of hiring retired police officers — whose former jobs were to arrest and jail those who consumed, grew, and sold cannabis only nine years ago — the agency should be focused on regulation and "work with community members to protect public safety and improve the community," according to the HH review.

After the HH review highlighted the LCB's emphasis on law enforcement instead of the intended regulatory duties, the agency reduced the number of officers allowed to carry firearms to 50%. According to the GIA, the LCB also plans to "create a new group within the Cannabis Enforcement/Education Unit that would 'consist of unarmed, non-commissioned employees whose key objective will be to educate and work collaboratively with licensees to achieve compliance.'"

Brian Smith, the LCB communications director, pointed to this unit when asked why the LCB has not followed the HH review's recommendations. Smith claims that the agency has addressed and implemented all the recommendations of the HH review "to their satisfaction as well as the Board's and agency leadership." He went on to say by email, "The LCB welcomed and accepted the recommendations in the review."

But had SB 5319 passed, the LCB would not have had power over the restructure and an ombudsperson would be in place to investigate licensee reports of retaliation and "cop" conduct.

Smith also claimed that there has been a "marked increase in education and lower level corrective actions" since this new unit has been put in place.

However, according to Walter, "LEOs are told to mark all contacts, even for enforcement agents, as education because 'we are always discussing compliance issues.'" Which illustrates how potentially deceptive the LCB stats will be moving forward.

Moreover, Walter and others say the duties that will be assigned to the new unit mentioned in the GIA were already outlined for the LCB when I-502 was originally proposed.

These are duties that should have been a priority since the LCB's inception. There should be no need for a new unit. Outside of this tremendous oversight, requiring LCB agents to carry firearms at all is reckless.

Christopher King, an activist who worked as a journalist and private-practice attorney before moving to Washington in 2012, was excited about the new cannabis legislation and voted for I-502. "At that time I did not fully comprehend the negative consequences that would foreseeably flow from it," King explained in an interview.

In October 2020, King decided he had to create awareness about what he perceived as the LCB's violation of the public's 14th Amendment rights and filed a lawsuit against the LCB in hopes of exposing them. "They are fake cops in the business of unauthorized constitutional deprivation and the whole dang scheme needs to be taken down and any case involving non-certified peace officers needs to be wound back or damages provided to the innocent," King said. "As a former government lawyer, I know how slippery things can be, and the LCB is about the slipperiest agency I've ever witnessed on many fronts.".

King's case is currently at a standstill while a decision is being made about whether it should be heard in federal court.

As someone who has reported on the Washington cannabis industry for the last five years and who has been investigating this since December of 2020, it seems the LCB has chosen to cherry-pick certain statutes that often stretch into a legal gray area and have gotten away with it for a very long time. A Washington State attempt to track police accountability, SB 5051, "concerning state oversight and accountability of peace officers and corrections officers," was filed in December of 2020. When I reached out to the senators who sponsored this bill to ask if the bill would apply to the LCB, they needed to reach out to committee staff for the Senate Law & Justice Committee to clarify. Even legislators drafting and sponsoring these bills are unclear about where the LCB's authority lies. According to committee staff, LCB LEOs are reserve officers, which is a title that has not been claimed by the LCB at any point in the past.

Furthermore, when Smith detailed the highlights of the changes made since the HH review, he touted a new policy and external affairs director, Chief Justin Nordhorn. Nordhorn is the same agent who has been enforcement-focused and determined to obtain general authority for the regulatory agency since 2014 as the previous enforcement chief for the LCB's Enforcement and Education Division. According to Cannabis Law Report, "Nordhorn will be overseeing a newly formed outreach team consisting of existing LCB staff. That team is developing an outreach strategy to directly engage stakeholders and licensees to further education, understanding of and compliance with LCB rules and policies."

Given the HH review's recommendations to focus on regulation and develop better community relationships, appointing Nordhorn to this position — after a career of heavy enforcement — seems ill-fitted and contrary to the recommendations in the HH review.

Smith refused to respond to questions about how leadership was determined for Nordhorn's newly appointed position or about training expectations moving forward, and he refused to share detailed information about the outreach and education efforts. He explained that if I wanted further information I would need to submit a public records request.

In my view, these are not the actions of an agency that "welcomed and accepted the recommendations in the review." Transparency and accountability are the only way forward for the LCB in order for the agency to shed the reputation they have gained since its inception, for the "toxic culture" the agency has cultivated to be eradicated, and for the cannabis community to trust the agency. If this does not happen, the only way forward is through major legislation.

Featured image is attributed to CRYSTALWEED cannabis (under the Unsplash License).