Will Local Bans Undermine Marijuana Legalization in Washington?


Office of the Attorney General

Washington's liquor control board, charged with regulating that state's newly legal marijuana businesses, will soon begin issuing licenses to producers, processors, and retailers. The applicants include more than 30 would-be growers in Yakima, a city of about 93,000 in central Washington where the liquor control board also plans to license five marijuana retailers. But this week the Yakima City Council made it clear that none of those new businesses is welcome, approving a ban on cannabis suppliers by a 6-to-1 vote.

Can they do that? Yes, according to an opinion issued last week by Washington Attorney General Bob Ferguson. Unlike Colorado's legalization initiative, Washington's, known as I-502, does not explicitly authorize local governments to ban cannabusinesses. But neither does it explicitly say they can't, and Ferguson concluded that no such pre-emption is implied either.

"Under Washington law," Ferguson notes, "there is a strong presumption against finding that state law preempts local ordinances." Washington courts have approved local bans on activities, such as hunting and motor boating, that are licensed by the state. Ferugson says "a challenger must meet the heavy burden of proving that state law creates an entitlement to engage in an activity in circumstances outlawed by the local ordinance." In 2005, for example, the Washington Supreme Court struck down a local ordinance that banned smoking in areas where state law explicitly said business owners had the discretion to allow smoking. By contrast, Ferguson says, the marijuana regulations issued under I-502 constitute "regulatory preconditions to engaging in such businesses," rather than "an entitlement to engage in such businesses regardless of local law."

Since Ferguson says local governments may impose explicit bans on cannabusinesses, it is not suprising that he also concludes they are free to impose prohibitive regulations, as long as the rules can be said to promote "public safety, health, or welfare." He notes that I-502 anticipates local regulation of marijuana businesses, saying "the issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances," including "building and fire codes, zoning ordinances, and business licensing requirements." So even if the courts do not agree with Ferguson that local bans are consistent with I-502, they might still approve restrictions that amount to bans in practice.

In addition to Yakima, Pierce County and the cities of Wenatchee and Mossyrock have banned marijuana businesses, while more than 20 others have imposed moratoriums that may be allowed to expire. Since the state attorney general is taking the position that local jurisdictions are under no obligation to accept growers, processors, or sellers, challenging bans presumably will fall to licensees. Brian Smith, a spokesman for the liquor control board, says the agency has not yet decided how to handle applicants in jurisdictions with bans.

Last week Sharon Foster, the board's chairwoman, said Ferguson's opinion "will be a disappointment to the majority of Washington's voters who approved Initiative 502." She noted that local bans will "reduce the state's expectations for revenue generated from the legal system we are putting in place." Foster also argued that bans "will impact public safety by allowing the current illicit market to continue." In his opinion Ferguson acknowledges that possibility. "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," he says. "The legislature, or the people by initiative, can address this potential issue if it actually comes to pass."