City & county marijuana bans: What is the attorney general thinking?

Washington Attorney General - and chess master - Bob Ferguson Credit: Joe Mabel/Wikimedia Commons

In an opinion certain to provoke continuing debate, the state's top legal officials said Thursday that local governments can use zoning to ban marijuana establishments from their jurisdictions.

County, city and township governments can use land-use and business regulations to control where marijuana shops, processors and growers can be located, according to Washington's Attorney General Bob Ferguson and Solicitor General Noah Purcell. They issued their opinion after the Washington Liquor Control Board asked for formal advice regarding Initiative 502, which legalizes recreational marijuana in the state.

The opinion focuses narrowly on the land-use and business ordinance questions, and Ferguson said anything beyond that scope was not researched.

"I would not be surprised to see this tested in the courts. … I always anticipated court action no matter how we answered the question," Ferguson said.

The Liquor Control Board said it will examine possible next steps. And Alison Holcomb, the ACLU attorney who led the state initiative drive that legalized marijuana, told The Seattle Times that the opinion is mistaken. Seattlepi.com quoted an email from her as saying "The initiative specifically gives the Liquor Control Board, in determining the number of stores per county, the task of providing ‘adequate access to licensed sources … to discourage purchases from the illegal market.’ It’s hard to see how allowing counties to ban stores outright doesn’t directly conflict with state law."

The attorney general's office looked at existing laws, the state constitution and the wording of Initiative 502. In this particular case, state law cannot pre-empt a local ordinance, and I-502 does not contain language to nullify that, Ferguson and Purcell said.

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, the Associated Press reported. AP noted that 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 study by a Seattle-based marijuana think tank called The Center for the Study of Cannabis and Social Policy.

The liquor board has set quotas for the maximum numbers of licensed marijuana shops in each county. However, those quotas are maximums and not minimums for each county, so a local government does not have to meet that state quota. Thus, a city or county can legally have no shops, processors or growers, Purcell said.

The Legislature has the ability to pass a law that would nullify Thursday's opinion. On Wednesday, Rep. David Sawyer, D-Tacoma, introduced a bill to require local governments to cooperate with the Liquor Control Board on establishing licensed marijuana producers, processors and retailers. On Jan. 6, Rep. Cary Condotta, R-East Wenatchee, introduced a bill that would route 30 percent of the marijuana taxes collected in a municipality back to that jurisdiction, creating an incentive for local governments to green light marijuana businesses.

Sharon Foster, chairwoman of the state liquor board, said in a written statement that "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."

She said the board will examine its options. "We have already been working with local governments, legislators and the governor’s office on this issue and will continue to do so," Foster said. 

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