Wash. attorney general offers opinion on pot business bans

SEATTLE - State Attorney General Bob Ferguson said Thursday cities and counties can ban licensed marijuana business from operating.

Under the opinion released, Ferguson said the state's legal marijuana initiative does not prevent local governments from regulating or banning marijuana businesses in their jurisdictions. The state Liquor Control Board previously requested a formal opinion.

"Under Washington law, there is a strong presumption against finding that the state law preempts local ordinances," the opinion states. "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 added I-502 could have been structured to require local governments to accept marijuana businesses, but it was not done and can only be changed if lawmakers vote to amend the law, which could happen. It's because House Bill 2322 was introduced Wednesday, which prohibits local governments from taking actions preventing creation or operation of marijuana businesses licensed by the state. The bill would require cities, counties and towns to cooperate with I-502.

Attorney Katherine Kenison, who represents several jurisdictions in Grant County, expressed concern prior to the attorney general's opinion that banning licensed marijuana businesses could lead to legal action. She expressed the same concerns Thursday in an interview with the Columbia Basin Herald, despite the attorney general's opinion.

"It certainly helps for those jurisdictions that adopted moratoriums and gives them something to supply a court if they end up in court, but it's not a bulletproof defense by any means," she said. "You have to remember the (Attorney General's Office's) opinion is not binding on any courts. They will give it consideration but they are not bound by it."

While the City of Moses Lake has passed an ordinance to allow recreational marijuana business, Kenison said not all jurisdictions have taken the same course, adding many have six-month moratoriums in place or six-month ordinances that allow the business.

Kenison said the state, primarily the Liquor Control Board, expressed concern that allowing cities or counties to ban the pot business could completely undermine the state regulatory scheme.

"If you allow dry and wet counties and cities, you're going to encourage black markets to continue in some of those jurisdictions that ban the legal business," she said.

Kenison added issues could arise on how to fairly distribute revenue from the business to cities and counties when certain jurisdictions decide on a ban. Although current plans call for much of the potential revenue to return to the state, a bill was introduced to share a portion of the revenue with local governments.

Kenison doesn't expect any jurisdictions to make any changes right away, as she anticipates more activity at the legislative level to address potential issues.