Cities can block pot business, state AG says

SEATTLE — Cities and counties can block licensed marijuana businesses from operating within their borders, Washington state’s top lawyer said Thursday in a much-anticipated legal opinion that complicates the state’s efforts to undercut the black market for pot.

Attorney General Bob Ferguson determined that the state’s voter-approved measure legalizing recreational marijuana allows local governments to adopt rules that are more strict than those set out in the law — up to and including outright bans.

“Although (the law) 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 pre-empt local authority to regulate such businesses,” the opinion stated.

The opinion was requested by the Washington Liquor Control Board, which has been worried that local bans could restrict access to legal marijuana and make it difficult to funnel pot users into the regulated, taxed market.

In a conference call with reporters, Ferguson said drafters of the measure “could have in a single sentence addressed this issue.”

The lead author of the measure, American Civil Liberties Union of Washington lawyer Alison Holcomb, bristled at that contention.

“The initiative explicitly and specifically gives the Liquor Control Board the task of providing ‘adequate access to licensed sources … to discourage purchases from the illegal market,’” Holcomb said. “It is hard to see how allowing cities and counties to ban stores does not directly conflict with this provision of the state law.”

Some jurisdictions, including unincorporated Pierce County, Lakewood and Wenatchee, have effective bans on pot businesses, because their local ordinances require businesses to follow state, federal and local law, and marijuana remains illegal under federal law.

Nearly three dozen of the state’s 75 biggest cities, from Redmond to Pullman, have adopted moratoriums of up to a year on marijuana businesses, according to a recent study by a Seattle-based marijuana think tank called The Center for the Study of Cannabis and Social Policy. Some have been dropping those temporary bans as they adopt zoning regulations for pot-related businesses.

By contrast, in Colorado, the only other state to approve marijuana for recreational use by adults over 21, the law expressly allows local governments to adopt bans. Large swaths of the state have opted out of the legal-pot regime, including Colorado Springs, the state’s second-largest city.

In a written statement, Washington state liquor board Chairwoman Sharon Foster said the opinion would be a disappointment to the majority of voters who approved the law.

“If some local governments impose bans it will impact public safety by allowing the current illicit market to continue,” she said. “It will also reduce the state’s expectations for revenue generated from the legal system we are putting in place.”

Lawmakers are already working on a couple of approaches for boosting access to legal pot.

Under one bill introduced in Olympia, cities could lose out on their share of liquor-license revenue if they don’t play ball with pot businesses. Another measure attempts to lure those cities into allowing the establishments by promising them a slice of excise taxes on marijuana sales.