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Local Government Authority and the New Marijuana Industry

November 13, 2013 by Jim Doherty
Category: Marijuana

On November 5th, the state attorney general’s office posted a notice of a request for an opinion from Sharon Foster, chair of the state Liquor Control Board, regarding the authority of local governments - cities and counties - to directly or indirectly prohibit recreational marijuana uses in their jurisdictions. The purpose of the notice is to seek public input on the requested opinion. Here are the questions that are asked in the request:

1. Are local governments preempted by state law from outright banning the location of a WSLCB licensed marijuana producer, processor, or retailer within their jurisdiction?


2. May a local government establish land use regulations (in excess of the I-502 buffer and other WSLCB requirements) or business license requirements in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction?

Obviously, many local governments have an interest in these issues. The Association of Washington Cities is coordinating a response on behalf of cities, and I presume that input will also be provided by county prosecutors.

Unfortunately, the process of issuing an attorney general opinion can sometimes take a while, particularly where the issues are complicated. In the meantime, cities and counties need to proceed with the ongoing process of adopting zoning for marijuana businesses, if they have not already done so. Keep in mind that an attorney general opinion is advisory only, and a court facing the same issues might come to a different conclusion. In other words, don’t hold your breath for final answers any time soon.

But can’t the legislature step in and give cities and counties the right to decide whether they want marijuana businesses in their jurisdiction? Yes, but not easily. Article 2, section 1 of our state constitution provides that initiatives passed by the people cannot be amended for two years after their enactment (not until the 2015 legislative session for I-502) except by a two-thirds vote in both the house and senate. That two-thirds approval requirement can be a high hurdle.

If you are interested in commenting regarding the requested opinion, here is the process to do so:

If you are interested in commenting . . . you should notify the Attorney General’s Office of your interest by November 28, 2013. This is not the due date by which comments must be received. However, if you do not notify the Attorney General’s Office of your interest in commenting on an opinion request by this date, the opinion may be issued before your comments have been received. You may notify the Attorney General’s Office of your intention to comment by calling (360) 586-0728, or by writing to the Office of the Attorney General, Solicitor General Division, Attention Jeff Even, Deputy Solicitor General, P.O. Box 40100, Olympia, Washington 98504-0100.

About Jim Doherty

Jim has over 24 years of experience researching and responding to varied legal questions at MRSC. He is the lead attorney consultant and has special expertise in transmission pipeline planning issues, as well as the issues surrounding medical and recreational marijuana.



"How other states deal with alcohol availability is not directly relevant to our marijuana issue. A Washington court reviewing this issue will look to the wording of our state's marijuana law to see if local government choice over participating in the marijuana market would be consistent with the intent of the law. Because the intent of the law is to replace the unregulated market with a statewide regulated market, prohibiting local retail marijuana stores would appear to frustrate the intent of I-502 and support the unregulated, untaxed market - but that's just my opinion."

Jim Doherty on Dec 12, 2013 9:31 AM

"So, how is it that there are "dry" counties and towns in the South when the states they are in allow for the sale and consumption of alcohol? Has not precedent already been set in the US??"

Wade Farris on Dec 10, 2013 9:53 AM

2 comments on Local Government Authority and the New Marijuana Industry


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