The Washington State Attorney General issued a formal opinion today on one of the biggest questions facing Washington's new recreational marijuana market: Can cities or counties who don't want pot shops prevent them from opening? In the AG's opinion, yes.
Citing precedent set by other Washington state cases and the lack of clear language in Initiative 502, State Attorney General Bob Ferguson argues that local jurisdictions can ban marijuana businesses or create land-use regulations that make it impractical for them to operate as long as they are "reasonable exercise[s] of a jurisdiction's police power."
"Finally," Ferguson writes in his opinion, "in reaching this conclusion, 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. But this potential consequence is insufficient to overcome the lack of clear preemptive language or intent in the initiative itself. The drafters of the initiative certainly could have used clear language preempting local bans. They did not."
Initiative 502 Author Alison Holcomb told the Seattle Times she believes the language tasking the state with determining the appropriate amount of marijuana stores for each county clearly establishes state — not city or county — authority on the issue.
A list of local marijuana regulations from the Municipal Research and Services Center of Washington shows a number of local bans, but most of them (including Spokane's) were temporary as local lawmakers waded through zoning for new marijuana businesses. Some jurisdictions, like Pierce County, are looking to ban the businesses altogether, which has prompted this discussion and a legislative effort to stop such efforts.
Sharon Foster, who requested Ferguson's opinion and who chairs the Washington State Liquor Control Board, which is overseeing I-502 implementation, released this statement in response:
“On behalf of my fellow board members, I would like to thank Attorney General Ferguson for providing a thorough legal analysis of our request as to whether a local government could formally or effectively ban a marijuana business from its jurisdiction. The formal opinion indicates that they have the ability to do so.
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.
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.”
Read the attorney general's full opinion here.