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Washington State Court Rules Local Governments Can Ban Marijuana Businesses

Many 420-friendly states allow cities and towns to “opt-out” of participating in the legal cannabis industry.

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An appeals court in Washington state has ruled that a local county government has the right to ban retail cannabis stores from operating in their jurisdiction, a ruling that other jurisdictions are using to support the prohibition of similar businesses in their own communities. The ruling was delivered in the case of Sticky's Pot Shop, a recreational cannabis store located in the small town of Hazel Dell near the Oregon border.

Sticky's is fully legal under Washington state law, but in May 2014, Clark County commissioners passed an ordinance banning all retail pot businesses within the county. In December of 2015, John Larson, owner of state-licensed recreational canna-business Emerald Enterprises, chose to open Sticky's in Hazel Dell, which is in Clark County, in spite of the ban. Just nine months after opening, a local judge ordered the store to be closed.

In the appeal, Larson's attorney argued that the county's anti-cannabis ordinance is unconstitutional because it prohibits a business activity otherwise legal within the state. The appeals court ruled in favor of the county, however, explaining that recent amendments to the state's marijuana laws allow local jurisdictions to prohibit canna-businesses, at the cost of losing out on tax revenue from cannabis sales.

Larson intends to appeal his case to the state Supreme Court, according to the Columbian, but until that happens, the appeals court's decision will hold. Six Washington counties and 80 cities have passed moratoriums or bans on canna-businesses since the state legalized pot in 2012, but the Clark County case marks the first appellate court ruling to provide guidance on the matter.

Washington Attorney General Bob Ferguson has issued an opinion that local jurisdictions can indeed ban cannabis establishments because state law does not supersede local government in the matter. In a recent statement, Ferguson said that the court's decision reaffirms his opinion. Emboldened by the appellate court's ruling and Ferguson's guidance on the matter, authorities in Yakima County are now applying for abatement orders to shut down several cannabis establishments within their own jurisdiction.

Yakima County officials enacted a ban on marijuana firms in 2015, but there are currently 26 state-licensed canna-businesses operating in the area in spite of it. State officials have now taken legal action against two of these businesses, a pot shop and a grower-processor company. Last November, the county allowed voters to weigh in on whether or not to continue the ban, and 60% of voters supported it.

If the appeals court's decision is upheld, Washington’s cannabis industry will fall in line with other canna-legal states whose legalization laws explicitly allow jurisdictions to “opt-out” of legal cannabis sales. In Massachusetts, for example, where the legal retail industry has not even begun, a large number of municipalities have already voted to ban legal pot shops.

In California, local canna-business bans are causing headaches for businesses that have been legally operating in the state's previously unregulated medical marijuana market, who now find themselves banned from towns they've been doing business in for years.