AG: local jurisdictions can effectively ban pot businesses

By Tyler Graf and Stephanie Rice

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Updated: January 16, 2014, 6:57 PM

 
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AG's ruling on Initiative 502

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Washington Attorney General Bob Ferguson said Thursday that local jurisdictions have the authority to shut out licensed marijuana businesses.

The attorney general’s opinion hinged on the fact that Initiative 502, which legalized the production and retail sale of marijuana, did not include language that would preclude local jurisdictions from preempting state law.

“Drafters in a single sentence could have addressed this,” Ferguson said Thursday at a joint press conference with Washington State Solicitor General Noah Purcell.

Ferguson’s opinion backs Clark County commissioners, who have signaled they want to follow Pierce County’s lead and not accept any applications for growers, processors or retailers of marijuana until the federal government legalizes the drug. The Liquor Control Board said Clark County can have up to 15 marijuana retailers, including six in the unincorporated areas governed by county commissioners.

Ferguson and Purcell did not rule out the possibility of future litigation, but said the state would defend Initiative 502 as it interprets it —including the power of local jurisdictions to ban marijuana businesses — if the measure was challenged in the courts.

Opinions from the attorney general’s office are not legally binding, Ferguson said, but are usually given careful consideration in court.

“I’m not in the business of predicting. There’s always the possibility of a court action,” Ferguson said. “I don’t think our opinion changes the fact this issue could be resolved in the courts, and potentially our state Supreme Court.”

Marijuana regulations will also be discussed by state lawmakers.

Earlier this week, a bill was introduced in the state House of Representatives to prohibit local jurisdictions from “preventing or impeding” the operation of commercial marijuana businesses licensed by the Liquor Control Board.

The bill was sponsored by nine Democrats and one Republican, including representatives from Pierce County.

For now, though, Ferguson’s opinion answers some questions that have arisen from local governments’ recent attempts to regulate recreational marijuana.

Liquor Control Board Chairwoman Sharon Foster, who had asked Ferguson to weigh in on whether local jurisdictions could effectively ban businesses, issued a written response Thursday to Ferguson’s opinion.

“The legal opinion will be a disappointment to the majority of Washington’s voters who approved Initiative 502. We’re not yet sure how this opinion will change the implementation of the initiative. 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 wrote. “The Board will be discussing next steps. We have already been working with local governments, legislators and the governor’s office on this issue and will continue to do so. As we have throughout this process, we will clearly communicate our intentions along the way.”

Stores in Vancouver?

I-502, which allows adults ages 21 and over to possess up to 1 ounce of marijuana, was approved by voters in 2012. The Liquor Control Board has capped the maximum number of pot shops statewide at 334. It also requires pot businesses to be at least 1,000 feet from schools, playgrounds, recreation centers, child care centers, public parks, transit centers, libraries and arcades.

In his 10-page opinion, Ferguson wrote that while I-502 “establishes a licensing and regulatory system for marijuana producers, processors and retailers in Washington State, it includes no clear indication that it was intended to preempt local authority to regulate such businesses. We therefore conclude that I-502 left in place the normal powers of local governments to regulate within their jurisdictions.”

Ferguson wrote that the argument could be made that a local jurisdiction’s prohibition on marijuana licensees conflicts with the initiative, but “there is no irreconcilable conflict here, because the (Liquor Control Board) is allowed to set only a maximum, and nothing in I-502 mandates a minimum number of licensees in any jurisdiction. The drafters of I-502 certainly could have provided for a minimum number of licensees per jurisdiction, which would have been a stronger indicator of preemptive intent, but they did not,” he wrote.

Whether local governments can outright ban pot shops and grow operations has been one of many questions posed by several jurisdictions. While the attorney general’s opinion answers two of the questions, it leaves others open to interpretation, government officials said.

In addition to the potential for six marijuana retailers in unincorporated Clark County, the Liquor Control Board has said six stores could be in Vancouver and one store apiece in Camas, Washougal and Battle Ground.

The city of Vancouver has already said growing and processing can be done in light and heavy industrial districts — under the same rules placed on collective gardens allowed for medicinal purposes — and appears on track to allow retail stores in commercial districts.

The Vancouver City Council will address the issue at a Feb. 3 work session, then would need to have a public hearing at a regular meeting before adopting an ordinance.

On Thursday, Vancouver Mayor Tim Leavitt said he has “a hard time believing that voters of Washington approved of this initiative believing that retail sales could still be disallowed due to a technicality of preemptive intent,”

In Washougal, Mayor Sean Guard said the attorney general’s opinion won’t heavily sway the city’s zoning process. The city plans to draft zoning provisions for I-502-related businesses by the time its temporary moratorium expires in June. But it’s unlikely, Guard said, the city will approve a business permit for a retail of processing operation after that point.

“Until someone at the federal level says, ‘We will not prosecute you,’ I don’t think we’ll see the (city) coming out and saying we should outright allow these businesses,” Guard said.

Camas Mayor Scott Higgins had a more optimistic take, saying Thursday’s opinion gave city officials guidance on what they’re allowed to do. In Camas, that could happen following the expiration of the city’s temporary moratorium in May.

So far, Battle Ground is the only jurisdiction in the county, in which processing and retail sales are permitted, that hasn’t passed a temporary moratorium.

And it could become the first to see the development of an I-502-related business.

In December, a Battle Ground developer submitted an application on behalf of a brokerage group to build an 18,000 square-foot processing facility. City officials have said the proposal must first receive approval from the state.

A representative from Clark County did not respond to an email seeking comment.