In The Matter Of: Michael Schermerhorn And Roxanna Larson

• Court: Court of Appeals of Washington
• Decided: March 10, 2025
• Docket: 86120-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Forfeiture of Cannabis Grow Equipment No. 86120-4-I

MICHAEL A. SCHERMERHORN and DIVISION ONE ROXANNA M. LARSON, UNPUBLISHED OPINION Appellants,

v.

SKAGIT COUNTY INTERLOCAL DRUG ENFOREMENT UNIT,

Respondent.

BIRK, J. — Michael Schermerhorn and Roxanna Larson (the Appellants)

appeal the hearing examiner’s order of forfeiture of their personal property, arguing

the hearing examiner erred in concluding the Appellants were engaged in the

illegal manufacturing of medical cannabis. Finding no error, we affirm.

In 2015, the Appellants, along with two other individuals, created

Cooperative 138 to produce medicinal cannabis to address their individual medical

requirements. At that time, pursuant to the Washington State Medical Use of

Cannabis Act, ch. 69.51A RCW, qualifying medical cannabis patients could create

and participate in “collective gardens” for the purpose of producing, processing,

transporting, and delivering cannabis for medical use. Former RCW 69.51A.085

(2011). Under the former statute, collective gardens were not required to register

with the state. Id. Effective July 1, 2016, the legislature enacted RCW 69.51A.250, No. 86120-4-I/2

which updated the statutory requirements to establish a cooperative to produce

and process medicinal cannabis. LAWS OF 2015, ch. 70, §§ 26, 50. Qualifying

patients wishing to form a cooperative must register the location with the

Washington State Liquor and Cannabis Board (LCB), which, among other

restrictions, must not be located within one mile of a cannabis retailer and must be

the domicile of one of the cooperative members. RCW 69.51A.250(2), (3)(a), (7).

On April 12, 2019, an Anacortes police officer was dispatched to the

Appellants’ cooperative site to investigate a reported burglary. Along with the

burglary, the police began investigating whether the cooperative had the proper

licensing. The police department requested assistance from the Washington State

Patrol regarding their investigation into the cooperative’s legality.

On May 31, 2019, the Appellants applied to the LCB for a license to register

Cooperative 138. On June 6, 2019, the LCB notified the Appellants that their site

location did not meet the requirements to be a registered cooperative because it

was within one mile of a cannabis retail outlet and none of the cooperative

members were domiciled at the site address. The Appellants had 14 days to

change the cooperative location to a compliant location, or the application would

be withdrawn. The Appellants did not submit a change to a new compliant location,

and the LCB sent a letter on June 26, 2019 indicating it was withdrawing the

application. The following day, the Appellants sent an e-mail indicating they were

appealing the decision. In a letter dated July 12, 2019, the LCB sent the Appellants

a statement of intent to deny the cooperative application registration, and provided

2 No. 86120-4-I/3

information if the Appellants wished to request a hearing. The Appellants

submitted a request for a hearing to challenge the withdrawal of the application.

On July 25, 2019, law enforcement contacted the LCB and inquired about

the Appellants and Cooperative 138. The LCB responded, stating the Appellants

and the location were not licensed, the Appellants’ property was associated with a

cooperative registration application that was withdrawn on June 26, 2019, and the

Appellants were in the process of appealing the withdrawal.1 On September 3,

2019, the Skagit County district court issued a search warrant for the search of the

Appellants’ property, finding that there was probable cause to believe that there

was evidence of illegal cannabis manufacturing, a violation of RCW 69.50.401.2

The search warrant was executed on September 5, 2019, the day before a

prehearing conference was scheduled to set the hearing date over the LCB’s

withdrawal of their license application. The Appellants were found to be in

possession of over 60 cannabis plants and various pieces of equipment used for

growing. The Skagit County Interlocal Drug Enforcement Unit (the Unit) took

1 In response to the Appellant’s request for a hearing, the LCB filed a motion

for summary judgment. On February 13, 2020, an administrative law judge issued an initial order on summary judgment, affirming the LCB’s decision to withdraw the cooperative application. In an order dated March 11, 2020, the LCB affirmed the administrative law judge’s initial order, and ordered that the application for the cooperative registration was withdrawn. 2 “Except as authorized by this chapter, it is unlawful for any person to

manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance.” RCW 69.50.401(1).

3 No. 86120-4-I/4

custody of the various grow equipment pursuant to proper service of seizure and

forfeiture notification.3

In a letter dated September 11, 2019, the Unit notified the Appellants of the

seizure and intended forfeiture. The Appellants responded, claimed interest in the

seized property, objected to the intended forfeiture, and requested a hearing on

the matter. The Unit filed a motion for summary judgment. In their response to

the motion for summary judgment, the Appellants argued the forfeiture was not

justified because the Appellants were licensed to operate their cooperative, the

Appellants did not intend to violate the law, and seizure of the equipment violated

the Eighth Amendment of the United States Constitution. The hearing examiner

granted the Unit’s motion for summary judgment, finding that the Unit established

probable cause to seize the property, and the Appellants failed to prove that the

property was not used or intended to be used in an illegal drug activity. The

hearing examiner found that the Appellants “failed to apply for a permit until May

of 2019 . . . [the Appellants] did not live at the warehouse property, and [the

3 RCW 69.50.505(1)(a-b) states,

(1) The following are subject to seizure and forfeiture and no property right exists in them: (a) All controlled substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of this chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as defined in RCW 64.44.010, used or intended to be used in the manufacture of controlled substances; (b) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW.

4 No. 86120-4-I/5

Appellants] operated two separate locations where [cannabis] was grown, stored

and processed in excess of that allowed by relevant law.” The hearing examiner

ordered that the Appellants’ equipment was forfeited.

The Appellants petitioned for judicial review of the order, arguing the

hearing examiner committed legal error by determining they were engaging in an

unlawful act. Following oral argument, the superior court affirmed the hearing

examiner’s judgment and order of forfeiture and denied the appeal. The Appellants

filed a motion for reconsideration, which was denied. The Appellants appealed to

this court.

The Administrative Procedure Act (APA), chapter 34.05 RCW, governs our

review of administrative decisions in forfeiture proceedings. RCW 69.50.505(5).

We review the original forfeiture order entered by the hearing examiner, not the

superior court’s decision. City of Sunnyside v. Gonzalez, 188 Wn.2d 600, 607-08,

398 P.3d 1078 (2017). Under the APA, we may grant relief from the hearing

examiner’s order based on one of nine reasons listed in RCW 34.05.570(3). The

Appellants bear the burden of showing the forfeiture order was erroneous. RCW

34.05.570(1)(a).

“[W]here the original administrative decision was on summary judgment, the

reviewing court must overlay the APA standard of review with the summary

judgment standard.” Verizon Nw., Inc. v. Wash. Emp’t Sec. Dep’t, 164 Wn.2d 909,

916, 194 P.3d 255 (2008). “Summary judgment is appropriate only where the

undisputed facts entitle the moving party to judgment as a matter of law.” Id. We

5 No. 86120-4-I/6

review the facts in the administrative record de novo and in the light most favorable

to the nonmoving party. Id. And we review the examiner’s legal conclusions using

the APA’s “error of law” standard, which allows this court to substitute its view of

the law for that of the examiner. Id. at 915; RCW 34.05.570(3)(d).

The Appellants argue law enforcement erred in executing a search warrant

to seize the Appellants’ property while they were amid the administrative process

of obtaining a cooperative license.4 During the burglary investigation, the

Anacortes police department contacted the LCB to confirm whether the address

had an active license to grow cannabis. The LCB responded on May 2, 2019, and

stated that the operation appeared to be an “illegal grow operation” and the only

way the operation could be legal at that location was “if they were a cooperative

and at this point there are no Cooperative licenses that have been issued in Skagit

County.” The Appellants did not apply to register their cooperative until May 31,

2019, and were subsequently notified their application was withdrawn due to their

noncompliant location. The Appellants sought to appeal the withdrawal of their

application, however, at no point did they have a valid cooperative license.

Though the Appellants had medical cannabis authorization forms at the time

the search warrant was executed, these allowed the Appellants to grow at their

domicile up to 15 cannabis plants for personal use. See RCW 69.51A.210 (if

4 The Appellants attached numerous exhibits to their opening brief to support their arguments. However, this court’s review is confined to the agency record. RCW 34.05.558. The APA’s provisions set forth the circumstances in which a reviewing court may receive additional evidence, none of which apply here. See RCW 34.05.562.

6 No. 86120-4-I/7

determined necessary, the health care professional must specify on the

authorization it is recommended that the patient be allowed to grow, in their

domicile, up to 15 plants for their personal medical use). The cooperative property

was not the Appellants’ domicile. At the time the search warrant was obtained and

executed, the Appellants did not have a registered cooperative as required under

RCW 69.51A.250, nor were they authorized to grow cannabis at that location for

their personal use pursuant to their medical cannabis authorization cards, RCW

69.51A.210. The hearing examiner’s order that the Appellants’ equipment was

subject to forfeiture was not erroneous.

The Appellants also argue that (1) there was a conspiracy between law

enforcement and the LCB, (2) law enforcement failed to provide correct information

in the application for a search warrant, (3) law enforcement failed to contact the

Appellants’ insurance agent, (4) Schermerhorn was attacked by Anacortes police

officers, (5) law enforcement failed to authenticate the Appellants’ cannabis

recognition cards, and (6) law enforcement failed to serve all four cooperative

members before seizing the grow equipment. However, the Appellants provide no

analysis or citation to authority on these claims. We will not consider issues that

are not supported by argument or citation to authority. RAP 10.3(a)(6); Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). And,

these arguments would not appear to negate the fact the Appellants lacked the

licensure that would have been required for production at the cooperative’s

7 No. 86120-4-I/8

location to be legal. The production not in conformity with law rendered Appellants’

property subject to forfeiture.

Affirmed.

WE CONCUR: