Clark County’s authority to ban the retail sale of marijuana stands
March 13, 2018 – The Division II of the Court of Appeals published its opinion finding that Clark County can lawfully ban the retail sale of marijuana within its incorporated areas. Clark County passed an ordinance which banned the retail sale of recreational marijuana within unincorporated Clark County. Subsequently, Emerald Enterprises applied to the Washington State Liquor and Cannabis Board (Board) for a retail license to sell marijuana in unincorporated Clark County.
The County objected, but the Board issued a license to Emerald Enterprises anyway. Emerald Enterprises then challenged the ordinance in Cowlitz County Superior Court and lost. Emerald Enterprises appealed this decision with the Court of Appeals (Court). In its appeal, Emerald Enterprises asserts that the Ordinance is preempted by state law. Specifically, it argues that the Ordinance violates article XI, section 11 of the Washington Constitution because it conflicts with the Uniform Controlled Substances Act (UCSA).
The Court found that the Ordinance does not prohibit what state law permits. The UCSA permits the retail sale of marijuana but does not grant retailers an affirmative right to sell marijuana. While an activity may be licensed under state law, it does not mean that the activity must be allowed under local law.
Further, under state law, the Board may determine the maximum number of retail outlets in each county but does not set a minimum number. Therefore, receipt of a Board license does not give a specific right to open a retail location in a particular jurisdiction.
The Court also found that the Ordinance does not thwart legislative purpose. The Court states that the purpose of the UCSA is not to encourage the sale, production, or use of marijuana, but rather to allow and regulate the sale of marijuana.
The Ordinance in question does not frustrate the State’s mandate as there is no mandate to maximize or encourage sales. Furthermore, there is no legislative intent to regulate the location of retail stores within counties. The UCSA requires the Board to set a maximum number of retail stores, not the specific location of each store.
A ban on retail stores does not thwart the purpose and intent of the legislature. Moreover, subsequent statutory amendments indicate that the legislature intended to preserve local government authority to ban retail stores. This is most evident in language added related to the distribution of funds resulting from the sale of marijuana. Specifically, “[f]unds may only be distributed to jurisdictions that do not prohibit the siting of any state-licensed marijuana producer, processor, or retailer.” RCW 69.50.540(2)(i)(B). This language specifically allows local governments to share the tax revenues from marijuana retail sales in their jurisdictions. Those jurisdictions that ban marijuana do not. This language indicates that the legislature did not intend to strip local governments of their authority.
The Court found that the County did not exercise unauthorized power. Emerald Enterprises argued that local regulation cannot completely ban an activity permitted by state statute. The Court held that the Board has authority to license and regulate, not to guarantee that marijuana is sold in every unincorporated area in the state. Therefore, the Ordinance does not conflict with state marijuana laws.
Finally, the Court found that the UCSA does not preempt the Ordinance.