Washington Cannabis: Court Rules that Counties Can Prohibit Recreational Sales

An appeals court docket in Washington ruled last 7 days that Clark County has the authority to ban the retail sale of recreational marijuana, settling any remaining dispute as to regardless of whether nearby governments in Washington can ban marijuana things to do. The ruling was a extensive time coming, and not sudden.

Washington regulation and rules promulgated by the Liquor and Hashish Board (LCB or the Board) give nearby authorities the solution to item to regardless of whether the LCB will grant a license. Having said that, the LCB receives to make the closing conclusion. In 2014, Legal professional Typical Bob Ferguson issued a General Opinion that opined that condition regulation experienced not preempted nearby jurisdictions from banning marijuana. Shortly immediately after the Legal professional General’s opinion, Clark County passed its prohibition ordinance.

The dispute in Emerald Enterprises LLC v. Clark County stems from Clark County’s ordinance prohibiting the retail sale of recreational marijuana in unincorporated Clark County. In spite of the ordinance, Emerald Enterprises used for a retail marijuana license at a locale in Clark County. The Board granted the license but Clark County revoked Emerald’s business enterprise permit for violating the ordinance by selling recreational cannabis.

Emerald challenged the ordinance in court docket, professing that condition regulation preempted Clark County’s ordinance and the County could not ban all retail sales. The demo court docket dominated in favor of the County and Emerald appealed, arguing that condition regulation preempts nearby regulation with regard to permitted sales of cannabis.

“Preemption” happens in predicaments when a greater authority will take priority about a law passed by a reduced authority. This will come up when condition and federal regulation conflict but also applies to condition and nearby regulation. Preemption is restricted to regulations that are really in conflict. The Court of Appeals summarized when preemption happens under Washington regulation:

A nearby regulation ought to generate to a condition statute on the very same issue matter if a conflict exists these types of that the two can not be harmonized. The emphasis of the inquiry is on the substantive perform proscribed by the two regulations. For case in point, . .  an ordinance may possibly punish littering a lot more harshly than condition regulation because both prohibit the very same fundamental perform. No conflict exists if the provisions can be harmonized.  Here,the County’s nearby ban on retail marijuana stores can be harmonized with condition regulation.

(Citations and quotations omitted.)

According to the Court, very little in Washington regulation either expressly or implicitly preempted Clark County from passing its ordinance. Initiative 502 (I-502) and relevant statutes grant the LCB the authority to issue marijuana retail licenses but do not grant an affirmative correct to provide cannabis. In other words, the regulation does not involve the Board to issue licenses. The court docket mentioned that the truth that an action can be licensed does not indicate that the action ought to be authorized under nearby regulation.  The Court also dominated that Clark County’s ban did not thwart the intent of I-502 because the purpose of legalization was to control and tax marijuana, not persuade the sale of cannabis.

On top of that, the Court identified that the State legislature viewed as the probability that nearby governments would prohibit marijuana sales because it made a system where by nearby governments that let the sale of marijuana could share in the tax earnings derived from cannabis sales and metropolitan areas and counties that prohibit retail sales can not. In 2015, when the condition legislature made this tax system, we wrote that this settled the concern of regardless of whether or not nearby authorities could prohibit marijuana action.

Shortly immediately after the Court of Appeals published its opinion, the Washington Legal professional Typical issued a push release reiterating the truth that Bob Ferguson has extensive held the opinion that nearby governments have the authority to prohibit marijuana corporations and highlighting that his office intervened in the scenario. The push release also argued that enabling nearby governments to prohibit cannabis could help hold marijuana legal in Washington inspite of a hostile federal administration:

Neighborhood governments like Clark County that have banned marijuana corporations have indicated that if I-502 calls for them to let marijuana corporations, then they will challenge I-502 and argue that it is preempted by federal regulation. If courts agree with this argument, it could likely threaten I-502 and Washington’s controlled marijuana system. But if courts continue on to agree with the Back opinion that Washington’s marijuana regulation does not involve nearby governments to let marijuana corporations, this menace will be averted, because courts will not want to rule on the concern of federal preemption. This enables legalized marijuana to continue on in Washington, in accordance with voters’ needs.

This end result is not stunning and for the most aspect, marijuana corporations are not seeking to run in spots where by metropolitan areas or counties have banned marijuana action. Hashish corporations in Washington want to be mindful of nearby rules and regulations in addition to the state’s strong regulations. For persons residing in Clark County (or any other jurisdiction that bans retail sales) who don’t like this end result, this conclusion tends to make it apparent that you will want to get it up with the County Commissioner, not the courts.

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