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May 16, 2021

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Judge upholds ban on marijuana businesses in Clark County

Decision follows similar ones rendered in cases involving other counties

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A Cowlitz County judge upheld Clark County’s ban on marijuana businesses Wednesday, making it the fourth court in Washington to uphold local government bans on those types of businesses.

In the court case, Emerald Enterprises and John M. Larson v. Clark County, the judge agreed with an Attorney General’s Office opinion earlier this year that concluded there is nothing in Initiative 502, which legalized recreational marijuana in the state, that overrides local government authority to ban such businesses.

The county ban covers unincorporated parts of Clark County but not cities in the region, which each have authority over their own territory. Vancouver, Battle Ground and parts of Woodland, for instance, allow some marijuana businesses. Other towns, such as Camas and Washougal, have their own bans.

Larson owns Stucky’s, 7831 N.E. Highway 99, a state-permitted marijuana shop in Hazel Dell that can’t sell pot because of the ban. Larson declined to comment on this story.

Brandon Brock, who owns Mary Jane’s House of Glass at 212 N.E. 164th Ave., also has a license for a business that could open in a ban area — the city of Washougal.

His application was chosen in a state lottery for pot shop licenses. Brock said he’s not planning on challenging that ban.

Asked about the county ruling, he said it wasn’t a big surprise that it was upheld.

“Washougal has its own ban, so Clark County doesn’t affect me, but I think with time things will loosen up on their own, especially with legalization in Oregon,” Brock said.

He and his family also own a chain of local paraphernalia stores — which are legal in Washington and Oregon. Mary Jane’s, which sells pipes and other smoking supplies, recently opened its 11th store in Northeast Portland’s Concordia neighborhood.

Brock said he’d love to open a full-service pot shop in Washougal, but he’s OK waiting a while and seeing how the industry plays out as Oregon starts taking its first recreational marijuana business applications in 2016.

“Right now my feelings aren’t hurt having to wait,” Brock said. “I’d like to see Washington change their tax laws so we can better compete with Oregon. Right now it looks like our taxes will be much higher.”

There has been some talk of changing the Washington tax structure, which charges a 25 percent excise tax at three stages. But a change will have to come through the state Legislature.

As for local bans, in January, the state attorney general issued a formal opinion, concluding that the law legalizing marijuana in Washington does not prevent cities or counties from excluding marijuana businesses.

Similar challenges to that opinion were made in Benton, Pierce and Chelan counties earlier this year, and in all cases, the bans were upheld.

If courts continue to agree with the attorney general’s opinion, they will need to decide in these cases whether federal law pre-empts I-502, according to the Attorney General’s Office.

“My office is working aggressively to uphold the will of the voters,” Attorney General Bob Ferguson said in a press release. “As I have said from the beginning, the drafters of Initiative 502 could have required local jurisdictions to allow the sale of recreational marijuana … Now it is up to the Legislature to decide whether to require local governments to allow for the sale of marijuana.”

In the Pierce County case, where the ban was upheld, plaintiffs have appealed to the Washington Supreme Court. The court will likely decide whether to review that case, MMH v. Fife, sometime early next year.

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