Posted by: Patricia Salkin | April 8, 2018

WA Appeals Court Finds Local Ordinance Prohibiting the Retail Sale of Marijuana in Its Unincorporated Areas was not Preempted

This post was authored by Matthew Loeser, Esq.

In 2012, Washington voters approved Initiative 502, which was codified within Washington’s Uniform Controlled Substances Act (UCSA). The UCSA legalized the limited production, processing, and sale of recreational marijuana to persons twenty-one years and older, and created a regulatory state licensing system through the Washington State Liquor and Cannabis Board. In 2014, Clark County passed an Ordinance, which banned the retail sale of recreational marijuana within unincorporated Clark County. Emerald challenged the Ordinance and sought declaratory and injunctive relief in Cowlitz County Superior Court. Emerald argued that the UCSA preempted the Ordinance. The Superior Court ruled that the UCSA did not preempt the Ordinance, and Emerald appealed. While that appeal was stayed, Emerald began Board-licensed retail sales of marijuana in the County. The County ordered Emerald to cease all sales of marijuana and marijuana products and revoked Emerald’s building permit. The Clark County Hearing Examiner and the Clark County Superior Court affirmed the County’s decision.

In its preemption argument, Emerald first argued that the Ordinance prohibited what the UCSA permitted. The court found that while the UCSA permitted the retail sale of marijuana, it did not grant retailers an affirmative right to sell marijuana; nor did the UCSA create a specific right to a retail license in the County, or authorize retail stores in the unincorporated parts of every county. Furthermore, nothing in the UCSA stated that a county could not prohibit retail recreational marijuana sales.

Emerald next contended that the Ordinance unconstitutionally conflicted with the UCSA because it went against the will of voters and the legislative purpose of the state law. Here, however, there was no evidence of legislative intent to regulate the location of retail stores within counties. Thus, a ban on retail stores within unincorporated Clark County did not, by itself, go against the purpose and intent of the legislature. Moreover, subsequent amendments to the Ordinance indicated that the legislature intended to preserve the right of local governments to ban retail stores.

Lastly, the court found that the UCSA did not expressly or implicitly preempt the County Ordinance. Here, absent clear statutory language to the contrary, the court found that the County retained jurisdiction in all matters not explicitly delegated to the Board. Furthermore, the court held that the Board’s authority to determine the maximum number of retail locations allowed under state law did not give it the power to determine where a store is located within a given jurisdiction. Moreover, the legislature rejected a proposed I-502 amendment containing explicit zoning preemption language. Because the court determined that state law had not explicitly or impliedly occupied the entire field, the County retained its zoning authority. The trial court’s order granting summary judgment was therefore affirmed.

Emerald Enterprises, LLC v Clark County, 413 P 3d 92 (WA App 3/13/2018)


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