Jurisdictions can ban marijuana sales under Washington law

OLYMPIA — A three-judge state court of appeals panel today ruled that local jurisdictions have the authority to ban marijuana sales, agreeing with Attorney General Bob Ferguson’s arguments and a 2014 Attorney General Opinion.

This is the first appellate court to rule on the issue. Judges in five trial-court cases have also agreed with the attorney general’s interpretation. The Attorney General’s Office intervened in the case to uphold the will of the voters and ensure proper interpretation of Washington’s marijuana law.

“My office is aggressively working to uphold the will of the voters,” Ferguson said. “Today’s ruling affirms my office’s position and formal opinion. I have said from the beginning: If the Legislature or the drafters of Initiative 502 had intended to require local jurisdictions to allow the sale of recreational marijuana, they could have done so in a single sentence. They did not.”

In its ruling on Emerald Enterprises v. Clark County, the state Court of Appeals Division II panel held that while Washington law “permits the retail sale of marijuana, it does not grant retailers an affirmative right to sell marijuana.”

The plaintiffs in the case sought to open a marijuana retail business in unincorporated Clark County, despite the county’s ban on such businesses in unincorporated areas (several cities in Clark County, including Vancouver, allow marijuana businesses). The county argues it is not required to allow marijuana retailers under voter-approved law legalizing marijuana.

Local governments like Clark County that have banned marijuana businesses have indicated that if I-502 requires them to allow marijuana businesses, then they will challenge I-502 and argue that it is preempted by federal law. If courts agree with this argument, it could potentially threaten I-502 and Washington’s regulated marijuana system. But if courts continue to agree with the AGO opinion that Washington’s marijuana law does not require local governments to allow marijuana businesses, this threat will be avoided, because courts will not need to rule on the question of federal preemption. This allows legalized marijuana to continue in Washington, in accordance with voters’ wishes.

Ferguson described this threat in detail in an op-ed to The Seattle Times in 2015. He wrote: “While a patchwork system might not be perfect, allowing local bans of marijuana businesses actually protects the initiative against legal challenges.”

Deputy Solicitor General Jeff Even presented arguments to the court.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Brionna Aho, Communications Director, (360) 753-2727; brionna.aho@atg.wa.gov