State attorney general says cities can ban pot-related businesses

By Kristi Pihl, Tri-City HeraldJanuary 16, 2014 

Tri-City elected leaders can ban pot-related businesses within city and county boundaries, state Attorney General Bob Ferguson ruled Thursday.

But that may change if the state Legislature adopts House Bill 2322, a measure introduced by 11 Western Washington representatives that would require cities, counties and towns to allow licensed pot businesses.

The Kennewick, Pasco, Richland and West Richland city councils have been waiting for the attorney general to issue an opinion ever since Initiative 502 legalized recreational marijuana in the state. All four cities have passed temporary moratoriums preventing marijuana-related businesses from opening.

"The decision by the attorney general's office is the right decision," said Kennewick Mayor Steve Young. "It certainly aligns with the constitution of the state to allow local jurisdictions to make the important decisions that affect their communities."

The topic is likely to come up at a future council workshop, Young said. The city council has the ability to revoke the 12-month moratorium early.

"It is the guidance we were seeking," said Lisa Beaton, Kennewick's city attorney.

The attorney general, in response to a request by the state Liquor Control Board, said state law does not pre-empt local jurisdictions from banning pot businesses. The rules make it clear that state licensees still have to abide by local laws.

Local governments can also adopt land use regulations or business licensing requirements that would make it impractical for a licensed marijuana business to open, the opinion said.

Only four of Washington's 75 largest cities -- Kent, Lakewood, Wenatchee and SeaTac -- have permanently banned marijuana businesses, according to a recent survey by The Center for the Study of Cannabis and Social Policy, a nonprofit research-action think tank. The city of Omak and Pierce County also have issued permanent bans.

The attorney general's opinion did say that the Legislature or another voter-approved initiative could change whether local governments can ban pot businesses.

Young hopes state legislators will be considerate of the impact initiatives can have on local communities, he said.

House Bill 2322, which was introduced earlier this week and sent to the Government Accountability & Oversight committee, would allow the Liquor Control Board to penalize local governments that ban pot or make it impossible for pot businesses to open. The state agency would be able to withhold shared liquor revenue from offending local governments and sue them in court.

Liquor Control Board Chairwoman Sharon Foster said in a statement Thursday, "The legal opinion will be a disappointment to the majority of Washington's voters who approved Initiative 502."

A majority of the Tri-City electorate voted against I-502, though it passed with 56 percent of the vote statewide. In Benton County, 56 percent of voters, or about 44,700 people, voted no. In Franklin County, 61 percent of voters, or 13,800 people, said no.

Foster isn't sure how the attorney general's decision will affect implementing I-502, she said.

"If some local governments impose bans it will impact public safety by allowing the current illicit market to continue," Foster said. "It will also reduce the state's expectations for revenue generated from the legal system we are putting in place."

The Liquor Control Board has already hired 14 licensing investigators. State officials plan to inspect premises where businesses plan to grow, process or sell marijuana before issuing a license.

State officials are working through a backlog of applications for licenses. The 30-day window to apply closed last month.

The state has received applications for 71 pot farms, 47 processors and 45 retail shops in Benton and Franklin counties, according to data released Tuesday. A lottery is planned to select retail stores. Licenses may start to be issued by the end of February or the beginning of March. Retail locations may be able to open around June.

Locally, the Liquor Control Board plans to allow up to four stores each in Kennewick and Pasco, three in Richland, one in West Richland, two in Benton County outside the three larger cities and one in Franklin County outside Pasco.

Some of the local residents who have applied to run pot-related business have asked the Kennewick City Council to take time to craft reasonable rules for pot businesses within city limits. But other residents have urged banning such businesses altogether.

Pasco has been waiting on the attorney general's opinion and the outcome of the current legislative session, said Rick White, Pasco's community and economic development director. Having the answer will help clarify the discussion for city officials.

Richland City Attorney Heather Kintzley said the opinion will be another perspective to consider as city officials discuss how to implement I-502.

West Richland officials also are waiting on more clarification from the state and federal government, said West Richland Mayor Brent Gerry. The city council wants to make sure its decision is in accordance with state and federal laws.

The federal government still considers recreational pot illegal, and many banks are saying they will not be able to accept revenue from marijuana transactions.

The attorney general's opinion may not change much for unincorporated Benton and Franklin counties.

Franklin County commissioners have essentially left marijuana licensing to the state, said Bob Koch, Franklin County commission chairman. They've been told they really couldn't control where marijuana is grown.

Benton County commissioners have treated marijuana as a crop, said Jim Beaver, Benton County commission chairman. The commission adopted a resolution last month that outlines the different zones where production, processing and retail sales will be allowed.

Beaver said the commission will likely talk about the attorney general's opinion at its next meeting.

w Kristi Pihl: 582-1512; kpihl@tricityherald.com

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