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Thursday, January 16, 2014

WA Attorney General Bob Ferguson Says Local Governments Have Power to Regulate or Ban Marijuana Businesses

Posted by on Thu, Jan 16, 2014 at 11:24 AM

Washington State Attorney General Bob Ferguson released a formal Attorney General's Opinion (pdf) stating that Initiative 502 does not preempt local governments from regulating or banning marijuana businesses within their jurisdiction:

Under Washington law, there is a strong presumption against finding that state law preempts local ordinances. 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.

The opinion concludes that I-502's drafters could have structured the initiative to explicitly require local governments allow marijuana businesses, but did not, and that the state legislature is free add this requirement to state law if it chooses. In fact, a bill has already been filed in the state House to this effect. HB 2322 would prohibit local governments from "preventing or impeding the creation or operation of commercial marijuana businesses licensed by the liquor control board."

Formal AG opinions are issued at the request of lawmakers and public agencies, and while they generally guide the interpretation of law, they are not legally binding. That said, a cursory reading of this opinion suggests that it is fairly well reasoned.

UPDATE: The Washington State Liquor Control Board, tasked with implementing I-502, responds to Ferguson's opinion:

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.


Comments (19) RSS

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Cato the Younger Younger 1
And the cities that ban those businesses will not receive any tax dollars from marijuana sales, right?
Posted by Cato the Younger Younger on January 16, 2014 at 11:36 AM · Report this
Joe Szilagyi 2
Not so fast. Multiple legislators from both parties have a bill pending to STOP towns and cities from doing this: HB 2322.

Sponsors: Representatives Sawyer, Condotta, Appleton, Kirby, Fey, Farrell, Fitzgibbon, Hunt, Reykdal, Springer, Ryu.
Posted by Joe Szilagyi on January 16, 2014 at 11:37 AM · Report this
Joe Szilagyi 3
Oops. I should have read before posting. And @1, no, it doesn't work like that. It should.
Posted by Joe Szilagyi on January 16, 2014 at 11:39 AM · Report this
Don't some cities ban the sale of fireworks? What other businesses could cities ban? Could cities also ban alcohol sales within their limits? Adult entertainment? Gun sales? Could a city make it illegal to sell cigarettes?

What would be the reaction if Seattle tried to outlaw gun sales within the city limits? Would it become a 2nd amendment issue?
Posted by Charlie Mas on January 16, 2014 at 11:44 AM · Report this
Fnarf 5
No pot for you, Eastern Washington. I doubt HB 2322 has a chance.

@4, gun nuts control every facet of the political process. Seattle's already tried to ban carrying guns in city parks, and failed at the State Supreme Court. Yes, there are gun assholes who like to walk around in city parks with guns strapped to their tiny dicks just to prove they can.
Posted by Fnarf on January 16, 2014 at 11:53 AM · Report this
Goldy 6
@4 State law explicitly preempts tougher local gun regulations. That's what the AGO says is missing from I-502: An explicit preemption.
Posted by Goldy on January 16, 2014 at 11:56 AM · Report this
Since this law isn't even possible unless you believe that its okay for state law to override federal law, it's kind of hard for it's proponents to argue that local laws shouldn't be able to override it in turn.
Posted by David Wright on January 16, 2014 at 12:33 PM · Report this
Clara T 8
Why 7? Because law concerning federalism is supposed to work like a set of Russian nesting dolls?
Posted by Clara T on January 16, 2014 at 12:44 PM · Report this
Max Solomon 9
there was always going to be a backlash. republicans are in charge of local governments almost everywhere in WA besides the liberal bubble over puget sound.

and wahkiakum county. kris novaselic is in charge there.
Posted by Max Solomon on January 16, 2014 at 12:55 PM · Report this
Joe Szilagyi 10
@7 that makes zero sense. Our national structure is:

US Constitution/Federal law > State Constitutions/charters unless where the latter interferes with the former, and then a court settles the dispute.

On the State level below that, what you describe is entire a matter for each State Constitution to settle internally. Some states may have that prescription, some may not. If they don't, they don't. In our case, we don't.
Posted by Joe Szilagyi on January 16, 2014 at 12:57 PM · Report this
Pope Peabrain 11
I can't believe localities will keep any bans as time progresses. The same thing happened with the end of alcohol prohibition and local governments caved to the demands of the locals. Besides, it means jobs!
Posted by Pope Peabrain on January 16, 2014 at 1:03 PM · Report this
sloegin 12
All those Dry counties in Washington are keen to ban the Mary Jane.

Posted by sloegin on January 16, 2014 at 1:12 PM · Report this
There are, in fact, no dry counties in Washington. Perhaps some folks living in the areas where marijuana sales are banned would like to promote a ban on alcohol sales as well. I believe the rationale would be same, only stronger.
Posted by Charlie Mas on January 16, 2014 at 1:23 PM · Report this
@12, It's lefty culture hating. After all, these people moved to those Dogpatch USA armpit towns to get away from the hedonism of city life and mores.
Posted by neo-realist on January 16, 2014 at 1:42 PM · Report this
Will in Seattle 15
Regulation as in restrictive zoning: Yes

But banning will lead to successful lawsuits that will bankrupt certain cities and counties.
Posted by Will in Seattle on January 16, 2014 at 1:45 PM · Report this
For once, I don't care what Eastern Washington is doing. If Yakima doesn't want pot, so what? My only concern would be if their refusal to participate in legalization results in illegal activity that might violate the conditions that Holder & the Justice Dept laid out to allow our experiment to proceed.
Posted by wxPDX on January 16, 2014 at 2:00 PM · Report this
Fnarf 17
@16, except that Eastern Washington isn't a monolithic bloc. If someone in Yakima wants to purchase pot, the law says he can, and there are plenty of people in Yakima who want to. But a tiny Republican minority sez "fuck you, hippie". That's not really very democratic, is it?
Posted by Fnarf on January 16, 2014 at 3:48 PM · Report this
@17 Those counties all voted by healthy majorities to reject 502. It isn't a tiny minority unfortunately.
Posted by wxPDX on January 16, 2014 at 5:26 PM · Report this
Fnarf 19
@18, it is a tiny minority. Most residents of Yakima and Chelan counties don't vote at all, especially poor residents and people of color (Chelan is 20% Latino, Yakima is 35% Latino).
Posted by Fnarf on January 16, 2014 at 6:09 PM · Report this

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