Thursday, January 16, 2014

Local governments can ban marijuana businesses says the Attorney General

Today, Bob Ferguson, the Washington State Attorney General, released an opinion stating that local governments can ban marijuana businesses from their jurisdictions.

In the fall the Washington State Liquor Control Board sent a letter to the Attorney General asking the following two questions:

1. Are local governments preempted by state law from banning the location of a Washington State Liquor Control Board licensed marijuana producer, processor, or retailer within their jurisdiction?

2. May a local government establish land use regulations (in excess of the Initiative 502 buffer and other Liquor Control Board requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction?

The short answers are:

1. No.  Under Washington law, there is a strong presumption against finding that state law preempts local ordinances.  Although Initiative 502 (I-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.

2.  Yes.  Local governments have broad authority to regulate within their jurisdictions, and nothing in I-502 limits the authority with respect to marijuana businesses.

The Attorney General's news release and full statement are available online.  The WASAVP Marijuana Policy Toolkit includes links to many of the moratoria and bans on marijuana businesses that local jurisdictions have instituted.

A few members of the Washington State Legislature were ready for this.  House Bill 2322 would prohibit local governments from taking actions preventing or impeding the establishment of marijuana businesses in their jurisdictions.

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