Pubdate: Thu, 16 Jan 2014
Source: Columbian, The (WA)
Copyright: 2014 The Columbian Publishing Co.
Contact:  http://www.columbian.com/
Details: http://www.mapinc.org/media/92
Authors: Tyler Graf and Stephanie Rice

AG: 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."

The attorney general's opinion hinges on the fact that Initiative 502,
which legalized the production and retail sale of marijuana, did not
include language that would preclude local jurisdictions from
preempting state law.

"Drafters in a single sentence could have addressed this," Ferguson
said Thursday at a joint press conference with Washington State
Solicitor General Noah Purcell.

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

Ferguson and Purcell did not rule out the possibility of litigation
but said the state would defend Initiative 502 if it ended up in the
courts.

"I'm not in the business of predicting. There's always the possibility
of a court action," Ferguson said. "I don't think our opinion changes
the fact this issue could be resolved in the courts, and potentially
our state Supreme Court."

The opinion answers some questions that have arisen from local
governments' recent attmpts to regulate recreational marijuana.

I-502, which allows adults ages 21 and over to posses up to 1 ounce of
marijuana, was approved by voters in 2012. The Liquor Control Board
has capped the maximum number of pot shops statewide at 334.

Liquor control board Chairwoman Sharon Foster asked Ferguson in a Nov.
1 letter to answer whether local governments were preempted by state
law in setting more restrctive rules and whether they could establish
land-use regulations in excess of the the I-502 buffer.

That buffer says pot businesses must be 1,000 feet from schools,
playgrounds, recreation centers, child care centers, public parks,
transit centers, libraries and arcades.

In his 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."

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.

Whether local governments can outright ban pot shops and grow
operations has been a question hanging over several county
jurisdictions. 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.  
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MAP posted-by: Jo-D