Pubdate: Fri, 17 Jan 2014
Source: Seattle Times (WA)
Copyright: 2014 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Bob Young
Page: A1

STATE AG'S OPINION STIRS POT OVER WHO CAN BAR IT

Says Counties, Cities Could Keep Out Legal Pot Businesses

Clouds Issuing of Licenses

State Attorney General Bob Ferguson said Thursday that cities and
counties are allowed to effectively ban recreational-marijuana businesses.

In an advisory opinion sought by the state Liquor Control Board,
Ferguson said Washington's law allowing legal pot under Initiative 502
did not preempt local governments from banning or effectively blocking
marijuana retailers, producers or processors.

The Liquor Control Board (LCB), in charge of implementing I-502, now
faces difficult questions, as it is processing more than 7,000
applications for pot-business licenses.

The board planned to license 334 pot stores statewide and allocated
stores in every county and in cities that already have de facto bans,
such as Kent and Lakewood. Will the board now reallocate those
licenses to other jurisdictions? Or, does it stay the course? Either
decision could lead to lawsuits.

Board Chairwoman Sharon Foster said voters would be dismayed by
Ferguson's opinion, which could keep legal pot merchants from
undercutting illicit dealers in some jurisdictions.

But the board has not decided the next steps, said agency spokesman
Brian Smith.

"The law is more clear today than it was yesterday but it remains
cloudy in numerous areas," said Mark Lindquist, prosecuting attorney
for Pierce County, which has banned legal pot businesses in
unincorporated areas until the federal government changes its stance
on pot. State Rep. Chris Hurst, D-Enumclaw, said a deep breath was in
order.

Ferguson's opinion is nonbinding, noted Hurst, chairman of the House
committee that oversees I-502. What's more, lawmakers have time to
make adjustments, he said.

One bill already has been filed that would compel cities and counties
to allow legal pot businesses or lose state revenue.

Of the state's 75 most populous cities, three have effective bans on
legal pot businesses and 36 have moratoriums, according to a report
from the Center for the Study of Cannabis and Social Policy. An
additional 14 have taken no action, the center said, while 22 have
begun to regulate legal pot businesses.

Officials in resistant cities say the federal prohibition of marijuana
prevents them from allowing pot businesses in their
jurisdictions.

Ferguson's rationale

In explaining his opinion, Ferguson said the state constitution gives
cities and counties broad authority and I-502 did not intend to
pre-empt that. If the authors of I-502 wanted to, they could have done
so.

Alison Holcomb, chief author of I-502, disagreed.

Authors of the law thought it would be redundant, Holcomb said, to
specify that local bans weren't allowed.

The law, she maintained, gives state officials the authority to
determine the maximum number of stores per county to ensure consumers
have adequate access to pot. "You can't say counties are allowed to
ban businesses without conflict with the provision that there be
adequate access," she said.

The LCB should proceed as planned in licensing businesses, she said,
even in resistant cities and counties. If the board reallocated stores
to other jurisdictions, it would risk lawsuits from entrepreneurs who
have incurred expenses by following the state's rules.

On the other hand, some say the board risks a different problem if it
proceeds as planned: Entrepreneurs licensed by the LCB in Kent and
Lakewood might sue the cities. That could lead to a court case based
on the idea that federal law trumps state law, which, given the
federal prohibition of marijuana, might end with a court finding the
state's recreational-pot law illegal.

"The conflict between federal and state law remains," Lindquist said.
"The irony here is that while the advisory opinion strengthens the
legal position of local governments if they take the issue to federal
court, it also lessens their incentive to take the issue to federal
court."

Predictions on fallout

Seattle lawyers Ryan Espegard and Hilary Bricken, who both advise pot
entrepreneurs, predicted Ferguson's opinion would embolden resistant
cities.

But Candice Bock of the Association of Washington Cities said some
cities may still be wary of being sued by a licensee. "That's why
every city has to look at the issue more broadly."

Cities that ban legal pot merchants are only helping illegal dealers
in their communities, said Hurst. "I find that laughable," he said.

Dan Roach, chairman of the Pierce County Council, said pot use that
was discreet before legalization has become brazen in a way that's
negatively impacting neighborhoods.

Although 54 percent of the Pierce County electorate backed I-502,
Roach believes they weren't fully informed, and unaware the initiative
didn't earmark tax revenues for local law enforcement. "If voters knew
what I knew, they would side with me," he said.

Lakewood Mayor Don Anderson offered a similar rationale. He predicted
Lakewood would incur costs related to I-502, as it does with
alcohol-related issues. "We'd have no real control over it, and no
revenue from it," he said.
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MAP posted-by: Matt