Posted by: Patricia Salkin | January 30, 2020

WA Court of Appeals Finds Applicant’s Proposed Location For Retail Marijuana Store Exceeded 1,000 Feet Separation Requirement

This post was authored by Matthew Loeser, Esq.

In this case, Top Cat sought review of Washington State Liquor and Cannabis Board’s (“WSLCB”) decision to issue City of Arlington’s only retail marijuana license to its competitor. Specifically, Top Cat argued that applicant’s proposed location did not meet the regulatory requirement that there be a 1,000 feet separation between property lines of licensees’ businesses or buildings and restricted entities, which included secondary schools. The superior court affirmed WSLCB’s final order, and Top Cat appealed.
On appeal, Top Cat argued that the WSLCB erred in concluding that the term “property line” within WAC 314-55-050(10) included lease lines and lot lines, instead of merely formal, recorded, boundary lines. Pursuant to I-502, the WSLCB was prohibited from issuing “a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school.” The record reflected that the legislature also empowered WSLCB to adopt regulations regarding retail outlet locations. Here, the WSLCB found that the dictionary definition of property line included the boundary lines delineating different types of property interests, including a lease lot line.
The court found that the WSLCB’s interpretation of the term property line was consistent with the stated legislative purpose of ensuring marijuana businesses were physically located at least 1,000 feet away from the “perimeter of the grounds” of any elementary or secondary school or other restricted entity. While the statute at issue did not mention “property line”, it set forth that a marijuana business must be 1,000 feet from “the perimeter of the ground” of a restricted entity. As the WSLCB’s measurement of the distance between the perimeter of Weston High School’s lot 301 and 172nd Street Cannabis’s lot 500B was over 1,600 feet, the court held that the WSLCB did not err in determining the location exceeded the 1,000 feet separation requirement.
Top Cat Enterprises, LLC v. City of Arlington, 455 P.3d 225 (WA App. 2020)

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