State official: Cities can ban recreational pot businesses

THE BELLINGHAM HERALDJanuary 16, 2014 

Recreational pot use

Bellingham resident Dustin Hughes smokes marijuana, Wednesday, Dec. 18, 2013 in Bellingham. "A lot of whether I go to the stores depends on the price," Hughes said. "I would feel like they need to stay competitive with current prices, but I would go check out the new stores for sure and probably buy some."

MATT MCDONALD — THE BELLINGHAM HERALD Buy Photo

Local governments can ban or restrict recreational pot businesses, Washington state Attorney General Bob Ferguson stated in a formal opinion released Thursday, Jan. 16.

Ferguson tackled the question of whether cities or counties could essentially opt out - either through an outright ban or too-strict regulations - of the state initiative approved by voters in November 2012.

The answer is yes.

"Under Washington law, there is a strong presumption against finding that state law preempts local ordinances," Ferguson's opinion stated.

"Although Initiative 502 (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."

That's because the initiative didn't contain the language to do so.

"Local governments have broad authority to regulate within their jurisdictions, and nothing in I-502 limits that authority with respect to licensed marijuana businesses," the opinion stated.

In a conference call with reporters, Ferguson said drafters of the measure "could have in a single sentence addressed this issue."

"It is not my role to read language in the initiative that's not there," Ferguson said.

The lead author of the measure, American Civil Liberties Union of Washington lawyer Alison Holcomb, bristled at that contention.

"The initiative explicitly and specifically gives the Liquor Control Board the task of providing 'adequate access to licensed sources ... to discourage purchases from the illegal market,' " Holcomb said. "It is hard to see how allowing cities and counties to ban stores does not directly conflict with this provision of the state law."

The opinion isn't legally binding but does carry weight with public officials and the courts, which is where the measure could be headed.

"It would not surprise me if it was tested in court," Ferguson said.

Some applicants for marijuana licenses have indicated that they plan to sue if they're granted licenses from the state but then barred by local authorities from doing business.

The Attorney General's Office took up the matter at the request of the Washington State Liquor Control Board, which is overseeing the licensing for marijuana growers, processors and retailers.

The liquor board is processing license applications for the fledgling pot industry, including the 309 in Whatcom County so far. The agency doesn't yet know how the opinion will affect its issuing of licenses.

"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," said Sharon Foster, the chair of the liquor control board who asked for an opinion.

"If some local governments impose bans it will impact public safety by allowing the current illicit market to continue," she said in a news release. "It will also reduce the state's expectations for revenue generated from the legal system we are putting in place."

Some jurisdictions, including unincorporated Pierce County, Lakewood and Wenatchee, have effective bans on pot businesses, because their local ordinances require businesses to follow state, federal and local law, and marijuana remains illegal under federal law.

Nearly three dozen of the state's 75 biggest cities, from Redmond to Pullman, have adopted moratoriums of up to a year on marijuana businesses, according to a recent study by a Seattle-based marijuana think tank called The Center for the Study of Cannabis and Social Policy.

"I project that these moratoriums will fall organically as locations realize they are missing out on jobs and revenue through the bans. This will take a while as the 502 system gets sorted," Dominic Corva, the center's executive director, said Thursday.

Unincorporated Whatcom County, Bellingham and Blaine have made way for pot businesses, while Lynden enacted a six-month moratorium in September to wait for clarity on state rules.

Lynden Mayor Scott Korthuis said the matter could come up before the City Council on Tuesday, Jan. 21.

"It's almost too new ... to tell you what we're going to do. This opens up a variety of options," he said Thursday of Ferguson's opinion.

The City Council could, at some point, extend the moratorium.

"We just want to see what everybody is doing and how it's going to play out. Rather than us being on the cutting edge we like to sit back," Korthuis said of what he called a conservative approach.

Bellingham officials said Thursday that they were studying the legal opinion but aren't likely to put a ban in place.

"We expect to uphold the will of the voters while balancing public health, safety and quality of life," city spokeswoman Janice Keller said.

The Ferndale City Council voted in November to allow marijuana businesses along the city's Interstate 5 corridor.

Jon Mutchler, one of two Ferndale council members opposed to doing so, said Thursday in an email that he wanted to revisit the issue.

"This (attorney general). decision may not change the view of my colleagues, but I am willing to have the discussion," he said.

In November, Mutchler said he wanted to wait for an opinion from the Attorney General's Office. He then proposed barring a pot store - the state allotted one for Ferndale - from opening near businesses that draw children and families.

The city's ordinance "was as generous and as permissive as I-502 would allow," he said Thursday. "We added no additional restrictions or limitations from the city of Ferndale to the marijuana industry."

Lawmakers already are working on a couple of approaches for boosting access to legal pot.

Under one bill introduced in Olympia, cities could lose out on their share of liquor-license revenue if they don't play ball with pot businesses. Another measure attempts to lure those cities into allowing the establishments by promising them a slice of excise taxes on marijuana sales.

Legal marijuana sales are expected to begin in Washington in June or July.

The Associated Press contributed to this story.

READ THE OPINION

Click here to see a copy (PDF) of the Washington state Attorney General's formal opinion.

Reach Kie Relyea at 360-715-2234 or kie.relyea@bellinghamherald.com .

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