Pubdate: Wed, 22 Jan 2014
Source: Stranger, The (Seattle, WA)
Copyright: 2014 The Stranger
Contact:  http://www.thestranger.com/
Details: http://www.mapinc.org/media/2241
Author: Goldy

DOPE DECISION

Why Attorney General Bob Ferguson's Opinion That Cities Can Ban Pot
Businesses Might Be Great for Seattle

Pot activists and state regulators were understandably disappointed
when Washington State attorney general Bob Ferguson released a formal
opinion January 16 concluding that Initiative 502 does not preempt
local governments from regulating or banning marijuana businesses
within their jurisdiction. Attorney general opinions are not legally
binding, but they generally guide state and local agencies in
implementing law.

"If some local governments impose bans, it will impact public safety
by allowing the current illicit market to continue," fretted
Washington State Liquor Control Board chair Sharon Foster in response.
Dozens of Washington municipalities already have pot bans or
moratoriums in place, including unincorporated Pierce County. (It is
nearly inevitable that pot entrepreneurs will try to challenge those
bans in court, regardless of the AG's opinion.) Letting those bans
stand and new ones be approved by local governments, Foster warned,
"will also reduce the state's expectations for revenue generated from
the legal system we are putting in place."

Most likely. But while Ferguson's narrow reading may run counter to
the spirit of I-502, the pro-pot crowd needs to take a big hit, chill
out, and try to focus on the bigger picture. Ferguson's opinion isn't
as much anti-pot as it is pro-local-and that's a line of legal
thinking that cities like Seattle will welcome as they attempt to
enact an ever-broader local legislative agenda in the face of inaction
and obstruction in Olympia.

"Under Washington law, there is a strong presumption against finding
that state law preempts local ordinances," Ferguson's formal opinion
determines. "Initiative 502... 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."

That "strong presumption" in favor of local authority is a precedent
that Seattle's attorneys will no doubt cite in the face of inevitable
lawsuits challenging our city's authority to regulate the minimum
wage, enact universal preschool, or even tax the rich. (Some might be
surprised to learn that there is no state statute explicitly
prohibiting cities from imposing an income tax-thus a locally approved
income tax combined with a presumption against preemption may be the
key to getting the underlying constitutional question back before the
state supreme court.) So while we may not like this particular
application of the doctrine, we would be better off in the long run
embracing it in principle rather than challenging it in court.

Instead, pot activists should focus on lobbying legislators to pass HB
2322, a bill introduced by Representative David Sawyer (D-Tacoma),
which would enact explicit language imposing the preemption provisions
that I-502's authors say were always their intent.
- ---
MAP posted-by: Matt