State attorney general says local pot bans legal

Staff writerJanuary 16, 2014 

A legal opinion released Thursday could open the way for a patchwork of access to marijuana across Washington.

Cities such as Seattle and Tacoma are creating zones where state-licensed pot growers and sellers can locate. But places such as unincorporated Pierce County and Lakewood are placing de facto bans on marijuana.

That arrangement can stand, according to the legal reasoning in a formal opinion by Attorney General Bob Ferguson’s office.

The Democrat said local communities can ban recreational marijuana businesses from locating within their jurisdictions. The upshot: A marijuana business could receive a license from the state Liquor Control Board, only to be denied the local business license or other permitting it needs to open.

A court may have the last word – if a business licensed under Initiative 502 sues a city or county that shuts it out.

Washington might end up looking similar to Colorado, where local bans have left some communities with stores and some without. Voters in the two states legalized pot at the same time in 2012.

With the opinion, Pierce County Council Chairman Dan Roach said the county will be able to prohibit those businesses and “not expend taxpayer dollars to defend it.”

“It’s a win for taxpayers and a win for my community,” said Roach, R-Bonney Lake. He said the county now may not take the state to federal court to keep marijuana businesses out of unincorporated areas, as he had threatened Tuesday.

But state Rep. Chris Hurst, D-Enumclaw, who has argued the initiative pre-empts local action, said if the ruling holds up it would threaten the state’s whole experiment with recreational marijuana.

“Without pre-emption, 502 will be a failure,” Hurst said. “You certainly can’t have a major county simply relying on the current criminal network to supply marijuana and have the county next door to it having licensed stores.”

Added state Liquor Control Board Chairwoman Sharon Foster: “If some local governments impose bans it will impact public safety by allowing the current illicit market to continue. It will also reduce the state’s expectations for revenue generated from the legal system we are putting in place.”

Foster requested the opinion from Ferguson. Her agency said it has yet to determine what the opinion means for its licensing plan. The board had planned to disregard local bans and regulations in awarding licenses in the coming weeks, and state lawyers said their opinion doesn’t keep the board from doing so.

The opinion said that not only can communities outright ban the businesses, they can also severely restrict those businesses to the extent that it makes their operation impractical.

Ferguson explained his legal reasoning to reporters Thursday.

State law has a strong presumption that cities and counties have the right to decide their own regulations unless explicitly forbidden by state law, Ferguson said. I-502 was silent on that issue.

“The drafters could have, in a single sentence, addressed this issue,” Ferguson said.

Alison Holcomb, the initiative’s lead author, said it did forbid local bans. The initiative says the liquor board must take adequate access to marijuana into account in setting a maximum number of retail stores in each county.

But state lawyers wrote that the initiative calls for a maximum, not a minimum, number of stores.

Ferguson said the Legislature could step in to address the omission.

A proposal to threaten reluctant cities and counties with loss of funding is under consideration in the Legislature. It would also allow the state to sue the local governments, but that would seem to be a less likely option after Thursday’s opinion.

Another option is to change the initiative, but that could require two-thirds supermajorities in the Legislature this year.

Tacoma lawyer Jay Berneburg, who represents about 30 applicants seeking to operate marijuana businesses in Pierce County, was disappointed by the opinion but said the issue ultimately will be settled in court.

He said lawyers “will formulate reasoned arguments contrary to the opinion of the attorney general.”

“Unfortunately, the legal battle will frustrate the implementation of the will of the voters who directed our governing authorities to make recreational marijuana accessible to the citizens of the State of Washington,” Berneburg said.

But Roach predicted the opinion could “fend off lawsuits against the county.”

“Right now we are not facing litigation,” Pierce County Prosecuting Attorney Mark Lindquist said. “This opinion lessens the chances that we will face litigation.”

Lindquist also said the opinion reduces the county’s “incentive to preemptively take the issue to federal court.”

The city of Lakewood issued a short statement in response to the ruling Thursday. The city said it appreciated the opinion, but the ruling “doesn’t change the city’s approach as to whether marijuana business may operate within Lakewood.”

In November, city attorney Heidi Ann Wachter advised the Lakewood City Council it didn’t need to take action on allowing recreational marijuana sales in the city because the city’s existing regulations require all businesses to show they comply with local, state and federal laws to legally operate in the city.

Staff writer Brynn Grimley contributed to this report.

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