Will Local Bans Undermine Marijuana Legalization in Washington?

Washington’s liquor control
board, charged with regulating that state’s newly legal marijuana
businesses, will soon begin issuing licenses to producers,
processors, and retailers. The applicants
include more than 30 would-be growers in Yakima, a city of about
93,000 in central Washington where the liquor control board also
plans to license five marijuana retailers. But this week the Yakima
City Council made it clear that none of those new businesses is
welcome,
approving a ban on cannabis suppliers by a 6-to-1 vote.

Can they do that? Yes, according to an opinion
issued last week by Washington Attorney General Bob Ferguson.
Unlike Colorado’s legalization initiative, Washington’s, known as
I-502, does not explicitly authorize local governments to ban
cannabusinesses. But neither does it explicitly say they can’t, and
Ferguson concluded that no such pre-emption is implied either.

“Under Washington law,” Ferguson notes, “there is a strong
presumption against finding that state law preempts local
ordinances.” Washington courts have approved local bans on
activities, such as hunting and motor boating, that are licensed by
the state. Ferugson says “a challenger must meet the heavy burden
of proving that state law creates an entitlement to engage in an
activity in circumstances outlawed by the local ordinance.” In
2005, for example, the Washington Supreme Court struck down a local
ordinance that banned smoking in areas where state law explicitly
said business owners had the discretion to allow smoking. By
contrast, Ferguson says, the marijuana regulations issued under
I-502 constitute “regulatory preconditions to engaging in such
businesses,” rather than “an entitlement to engage in such
businesses regardless of local law.”

Since Ferguson says local governments may impose explicit bans
on cannabusinesses, it is not suprising that he also concludes they
are free to impose prohibitive regulations, as long as the rules
can be said to promote “public safety, health, or welfare.” He
notes that I-502 anticipates local regulation of marijuana
businesses, saying “the issuance or approval of a license shall not
be construed as a license for, or an approval of, any violations of
local rules or ordinances,” including “building and fire codes,
zoning ordinances, and business licensing requirements.” So even if
the courts do not agree with Ferguson that local bans are
consistent with I-502, they might still approve restrictions that
amount to bans in practice.

In addition to Yakima, Pierce County and the cities of Wenatchee
and Mossyrock have banned marijuana businesses, while more than 20
others have imposed moratoriums that may be allowed to expire.
Since the state attorney general is taking the position that local
jurisdictions are under no obligation to accept growers,
processors, or sellers, challenging bans presumably will fall to
licensees. Brian Smith, a spokesman for the liquor control board,
says the agency has not yet decided how to handle applicants in
jurisdictions with bans.

Last week Sharon Foster, the board’s chairwoman,
said Ferguson’s opinion “will be a disappointment to the
majority of Washington’s voters who approved Initiative 502.” She
noted that local bans will “reduce the state’s expectations for
revenue generated from the legal system we are putting in place.”
Foster also argued that bans “will impact public safety by allowing
the current illicit market to continue.” In his opinion
Ferguson acknowledges that possibility. “We are mindful that if a
large number of jurisdictions were to ban licensees, it could
interfere with the measure’s intent to supplant the illegal
marijuana market,” he says. “The legislature, or the people by
initiative, can address this potential issue if it actually comes
to pass.”