Kent city officials favor state attorney general’s marijuana business ban opinion

Kent city officials quickly sided with the state attorney general’s opinion that cities and counties can ban recreational marijuana businesses.

“Much of the analysis, in fact, comports with the position that the city has taken all along in this matter,” said David Galazin, assistant city attorney, in an email.

Kent and other cities have banned recreational marijuana businesses. Voters in 2012 approved Initiative 502 to legalize the possession and sale of marijuana in the state.

“Regardless of the fact that the opinion was crafted under the umbrella of I-502, this is really a cities’ rights issue,” Galazin said. “The opinion correctly recognizes that under the Washington State Constitution, local governments possess very broad authority to regulate businesses and provide for proper zoning of land uses within their borders.”

Attorney General Bob Ferguson said in a statement released Jan. 16 that, “Under Washington law, there is a strong presumption against finding that state law preempts local ordinances.”

The state Liquor Control Board is expected to start issuing licenses in March, said Brian Smith, spokesman for the liquor board. He said the first retail stores could open around June.

The liquor board has received more than 60 applications to open retail, processor or producer facilities in Kent.

Galazin said the liquor board has not yet notified the city of any applications for marijuana licenses seeking to locate in Kent, as required by the initiative and the board’s administrative rules.

“The city is aware that a number of hopeful licensees have listed Kent addresses in their applications, but given the sheer number of applicants it will likely take some time for the board to separate the non-qualifying applicants from the potentially qualifying ones and even begin the formal notification process,” Galazin said.

Smith said the state has sent out many notification letters.

“We send notifications to cities once the application makes its way to a marijuana licensing investigator,” Smith said. “It’s one of the first things we do. The local authority (cities, counties, etc.) have 20 days to respond.”

Even if the liquor board issues a license, the city of Kent can stop the business from opening because of its ban. The Kent City Council approved the six-month ban in November because marijuana remains illegal under the federal Controlled Substances Act.

“It is presumed that cities are not preempted by state law when it comes to these kinds or regulations,” Galazin said. “Absent specific legislative language that explicitly curtails local control, the bar is very high to overcome that presumption, no matter what the activity might be.”

A proposed House bill would penalize cities and counties by taking away liquor board funds if the jurisdictions do not allow marijuana businesses.

“The city is concerned, however, that were the Legislature to pass any bill effectively penalizing cities for choosing to comply with the federal Controlled Substances Act (CSA), such a bill would almost certainly be invalid and unenforceable given 9th Circuit and U.S. Supreme Court jurisprudence regarding federal preemption under the CSA,” Galazin said.

Galazin added that one of the most significant portions of Ferguson’s opinion doesn’t even mention the word marijuana.

“As the attorney general stated ‘… it is important to remember that cities, towns, and counties derive their police power from article XI, section 11 of the Washington Constitution, not from statute. Thus, the relevant question is not whether the initiative provided local jurisdictions with such authority, but whether it removed local jurisdictions’ preexisting authority.’”