Attorney General: Local jurisdictions can effectively ban pot


In a written opinion issued today, Washington Attorney General Bob Ferguson said local jurisdictions “have broad authority to regulate within their jurisdictions, and nothing in I-502 limits that authority with respect to licensed marijuana businesses.”

Ferguson’s opinion backs Clark County commissioners, who have signaled plans to follow Pierce County’s lead and not accept any applications until the federal government legalizes marijuana.

Ferguson, and Washington State Solicitor General Noah Purcell, planned to answer questions during a media conference call following the release of his opinion.

Ferguson was asked in a Nov. 1 letter from the chairwoman of the Washington State Liquor Control Board to determine whether local jurisdictions have to authority to ban state-licensed sellers and producers.

Initiative 502, which legalized possession of up to 1 ounce of marijuana for adults ages 21 and older, was approved by voters in 2012.

LCB Chairwoman Sharon Foster asked Ferguson to answer these questions:

—Are local governments preempted by state law from outright banning the location of a WSLCB licensed marijuana producer, processor, or retailer within their jurisdiction?

—May a local government establish land use regulations (in excess of the I-502 buffer and other WSLCB requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction?

In a 10-page opinion, Ferguson wrote that while 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 Liquor Control Board has capped the maximum number of pot shops statewide at 334.

Ferguson wrote that the argument could be made that a local jurisdiction’s prohibition on marijuana licensees conflicts with the initiative, but “there is no irreconcilable conflict here, because the (Liquor Control Board) is allowed to set only a maximum, and nothing in I-502 mandates a minimum number of licensees in any jurisdiction. The drafters of I-502 certainly could have provided for a minimum number of licensees per jurisdiction, which would have been a stronger indicator of preemptive intent, but they did not,” he wrote.

The Liquor Control Board said Clark County can have up to 15 marijuana retailers, including six in the unincorporated areas governed by county commissioners.

The rest would be in cities: six stores in Vancouver and one store apiece in Camas, Washougal and Battle Ground. The city of Vancouver has already said growing and processing can be done in light and heavy industrial districts — under the same rules placed on collective gardens allowed for medicinal purposes — and appears on track to allow retail stores in commercial districts.

The state already says the businesses must be at least 1,000 feet from schools, playgrounds, recreation centers, child care centers, public parks, transit centers, libraries and arcades.

 

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