By Marcy Stamper
Cities and counties may restrict—or ban outright—marijuana businesses through local regulations, according to an opinion issued by the state attorney general on Thursday (Jan. 16).
After a review of Washington’s new law legalizing the growing, processing and sale of marijuana and other relevant statutes, Attorney General Bob Ferguson concluded that the voter-approved initiative does not give the state the authority to stop local governments from regulating businesses in their jurisdictions.
“While drafters [of the voter-approved initiative, I-502] could have structured I-502 to require local governments to accept marijuana businesses, they did not do so. If the Legislature wants to change that, it can amend the law,” wrote Ferguson in his opinion.
Ferguson concluded that the authority to regulate marijuana businesses is similar to that for sales of liquor, which local governments are allowed to ban.
Ferguson’s opinion is not binding, but opinions issued by the attorney general are usually given careful consideration by courts, according to his office.
Ferguson reviewed the law at the request of Sharon Foster, chair of the Washington State Liquor Control Board, which is overseeing and licensing marijuana businesses.
In a statement responding to the attorney general’s opinion, Foster said, “The legal opinion will be a disappointment to the majority of Washington’s voters who approved Initiative 502.”
Local bans could affect public safety by allowing the illicit market to continue and could reduce anticipated revenue from the legal marijuana market, said Foster.
Several cities and towns around the state, including Omak, have passed ordinances restricting or banning marijuana businesses. Omak changed its zoning ordinance last spring to prohibit any land use that would violate federal, state or local laws, effectively banning the possession or sales of marijuana in the city limits, according to City Administrator Ralph Malone. Wenatchee has also imposed a ban.
The Association of Washington Cities (AWC) called the attorney general’s opinion “a welcome affirmation of cities’ local authority,” but noted that it does not constitute a final resolution of the issue, since these bans are likely to be challenged in court.
Because a legal market for marijuana is without precedent, the AWC has been advising its members during the past year, as rules for legal marijuana have been under development. The association had informed members that if a jurisdiction prohibits all marijuana businesses, it could be sued by a person with a marijuana license who is denied the opportunity to conduct business there.
While few cities have banned marijuana outright, almost half of the larger cities in the state have imposed moratoriums on local decisions to have additional time to study the issue, according to a study by the Center for the Study of Cannabis and Social Policy.
The Okanogan County commissioners voted in December not to require special permits for people who want to grow, process or sell cannabis in unincorporated areas of the county.
Winthrop plans to treat applications for marijuana operations as it does any other business, and will be willing to issue a license if the applicant meets all requirements, according to Winthrop Town Planner Rocklynn Culp. (See related story: Winthrop considers zoning amendment for retail marijuana)
Twisp will approach applications from a land-use perspective and apply existing zoning codes, said Mayor Soo Ing-Moody.
The law authorizes the Liquor Board to set a maximum on the number of licenses for marijuana stores (there is no limit on licenses for growers or processors). But Ferguson noted that nothing in the law mandates a minimum number of licensees.
The Liquor Board is offering 334 retail licenses statewide, based on population. Okanogan County was allocated five stores, with one slated for Omak.
State law does restrict the location of marijuana businesses, which cannot be within a 1,000-foot radius of a school, playground, child-care center or library.
The conclusion that cities and counties can ban marijuana businesses could “interfere with the measure’s intent to supplant the illegal marijuana market,” which the Legislature or voters could seek to address, wrote Ferguson.
A state representative from Tacoma introduced a bill in the Legislature last week that would prohibit cities and counties from banning marijuana businesses.
The Liquor Board is discussing next steps and is already working with local governments, legislators and the governor’s office, said chairperson Foster.
132 seek licenses in Okanogan County
The 30-day period to apply for a marijuana license closed in December. In Okanogan County, 78 entities applied to produce (grow) marijuana, 42 to process it, and 12 to sell it. Eleven of the prospective growers provided addresses in the Methow Valley, as did seven of the processors, and two seeking a retail license.
Across the state, the Liquor Board received 2,818 applications for marijuana growers, 2,013 for processors, and 2,188 for retailers.
The Liquor Board is still reviewing all applications and expects to issue the first licenses within the next few months, according to a spokesperson.