State Attorney General rules cities, counties can ban recreational marijuana businesses

Washington cities and counties can ban recreational marijuana businesses from operating in their jurisdictions, according to a formal State Attorney General's Opinion released Thursday.

Kent, Auburn and other cities have banned recreational marijuana businesses. Voters in 2012 approved Initiative 502 to legalize the possession and sale of marijuana in the state.

“Under Washington law, there is a strong presumption against finding that state law preempts local ordinances," Attorney General Bob Ferguson said in a statement. "Although Initiative 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. We therefore conclude that I-502 left in place the normal powers of local governments to regulate within their jurisdictions.”

Ferguson issued the response after a request from the state Liquor Control Board Chair Sharon Foster for a ruling. The liquor board will issue licenses later this year for retail, producer and processing businesses.

Ferguson said that while I-502’s drafters could have structured the initiative to require local governments to accept marijuana businesses, they did not do so. If the Legislature wants to change that, it can amend the law.

Ten state representatives introduced a House Bill 2322 on Tuesday in Olympia that would prohibit local governments from banning recreational marijuana businesses.

Cities and counties also can establish land use regulations or business license requirements that make it impractical for a marijuana business to operate within a jurisdiction.

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

Foster, the liquor board chairwoman, issued a statement in response to Ferguson's opinion.

“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," Foster said. "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.”

Formal Attorney General’s Opinions are statements of the Attorney General’s official views on legal questions relating to the duties of a public officer. They are not binding on the courts, but are usually given careful consideration and respect.

When an opinion is requested the office first decides whether the request is appropriate for an opinion. If so, there is a lengthy research, drafting, and review process.

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