Franklin commissioners allow marijuana moratorium to expire - for now

Tri-City HeraldMarch 5, 2014 

Franklin County commissioners couldn't agree Wednesday on whether to extend the county's moratorium on marijuana-related businesses for six months.

Brad Peck supported the ban and Bob Koch opposed it, creating a 1-1 tie because Rick Miller was attending a national counties conference in Washington, D.C.

A motion needs two votes to pass. That means the ban is set to expire Tuesday night.

Selling, growing and processing recreational marijuana is prohibited in unincorporated parts of the county. Attorney General Bob Ferguson issued an opinion in January that nothing in Initiative 502, passed by Washington voters in 2012, prohibits cities and counties from banning marijuana businesses.

Marijuana remains illegal under federal law, but the U.S. Justice Department has said it will not interfere with plans to sell marijuana for recreational use in Washington or Colorado.

Peck wants to extend the moratorium in case the state Legislature takes action that would impact marijuana laws in the closing days of its session, he said.

"From the macro perspective, you've got the federal government which says, 'No it's illegal, but we're not going to enforce it, and you've got the state saying, 'It's legal, but we haven't figured out the rules yet,'" Peck said.

"And here we are at the county level trying to make yet another set of rules that further complicates the situation," he said. "It seems to me to be one of those cases where legislative discretion makes sense."

The moratorium would have also allowed Franklin officials to see what happens with other cities and counties who ban marijuana businesses, Peck said.

"I'm frankly not inclined to have Franklin County be one of the leading counties in the state when it comes to the commercial production of marijuana," he said.

But Koch argues the county shouldn't ban or regulate marijuana businesses.

"There's nothing we can do about it," Koch said. "It's all up to the state as far as who's going to be licensed and who isn't."

Miller told the Herald via telephone that he is likely to bring the moratorium back up for a vote next week. He is concerned that business owners who win state licenses could be grandfathered in if the county allows the ban to lapse too long, he said.

"I see Bob's point, but if we don't extend that moratorium, we keep it open for anything to happen to us," Miller said.

Miller would be more likely to support marijuana businesses if counties received tax revenue, he said. Local governments are not slated to see any of the 25 percent tax that will be collected when marijuana is sold from producer to processor, from processor to store and from store to consumer.

Unincorporated Franklin County is allowed only one marijuana retailer by the Liquor Control Board, but the same restrictions don't apply to processors or growers.

The state Liquor Control Board issued its first marijuana license Wednesday to Sean Green, who plans to grow 21,000 square feet of cannabis at his Spokane facility.

Ferguson told the Herald that he signed off on the opinion allowing local jurisdictions to opt out of the marijuana law because they are given broad deference under the state constitution to enact laws they feel are appropriate, unless the state specifically says they can't.

"We looked at that Initiative 502 very carefully to see if there was language that said a local jurisdiction must provide or sell marijuana, and in our view it's simply not there," he said.

Still, Ferguson expects a local government that has banned marijuana businesses to be sued by a prospective marijuana business owner "relatively soon."

"We'll see if our analysis is correct or not," he said. "That said, I'm certainly aware of the policy implications of that opinion if it's upheld by the court. When I issue an opinion like that, it's my job to look at the law and not the policy implications."

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