Marijuana businesses can be banned by cities, counties, official says

OLYMPIA – Cities and counties can say no to recreational marijuana businesses even though Washington voters have said yes, Attorney General Bob Ferguson said Thursday.

In a formal response to questions from the Liquor Control Board, Ferguson and his staff said Initiative 502 doesn’t pre-empt a local government’s right to restrict or ban businesses that want to grow, process or sell the drug. The state constitution gives cities and counties broad authority to control activities inside their borders unless a law specifically pre-empts that.

I-502, as written and passed by voters in 2012, didn’t.

The board has allocated a maximum number of recreational marijuana stores for each county and most major cities. “Nothing in I-502 mandates a minimum number of licensees in any jurisdiction,” the attorney general’s opinion said. The initiative also is patterned after state liquor statutes, and local jurisdictions can ban the sale of liquor, it added.

The Legislature could add that pre-emption if it chooses, Ferguson said. One bill, HB 2322, introduced this week, would prohibit cities and counties from impeding the liquor board in setting up recreational marijuana businesses.

The opinion is narrowly focused and only deals with recreational marijuana businesses. It does not address recreational marijuana use or any aspect of medical marijuana, which is a separate statute.

Spokane County, the city of Spokane and Spokane Valley do not have bans on recreational marijuana businesses, although in some cases they have approved zoning restrictions that limit the businesses to certain areas, going beyond state rules that keep them at least 1,000 feet from schools, parks and other facilities frequented by children. The three jurisdictions were allotted a maximum of 18 retail outlets and have 160 applications for those licenses.

Only a few cities and counties have outright bans on marijuana businesses. A recent report by the Center for the Study of Cannabis and Social Policy says four of the state’s 75 largest cities have bans and 34 have some form of moratorium; the opinion supports their right to maintain them. It also could provide a de facto ban for any city or county that requires a business to comply with local, state and federal laws as a condition of holding a license or a registration, because marijuana remains illegal under federal law.

Sharon Foster, chairwoman of the liquor board, said in a prepared statement the attorney general’s opinion “will be a disappointment to the majority of Washington voters who approved Initiative 502,” but she didn’t know how it would change the board’s efforts to get the law up and running. License applications are still being reviewed, with the first grower’s licenses expected to be awarded in late February or early March and stores opening in June or July.

Counties and cities, however, welcomed the opinion. “One of our paramount values has always been local control,” said Brian Enslow, senior policy director for the Washington Association of Counties.

Candice Bock, of the Association of Washington Cities, said while the opinion supports local control, the conflict between local jurisdictions that want to restrict marijuana businesses and those who want to start them will continue, possibly in the courts.

“I don’t think it’s the final word on this,” Bock said.