Cannabis Legalization: Whatever Happened To Democracy?

Occasionally, the epic battle between marijuana and the repeal of its prohibition shifts from the Federal government to the locals. In How To Handle A Neighbor Who Wants To Shut Down Your Cannabis Business, we wrote about how marijuana businesses should deal with “Not in My Back Yard” neighbors, but what we did not mention in that post is that the worst NIMBYs are often cities and counties.

Multiple cities and counties in Washington and Colorado have banned legal marijuana businesses in their communities. In fact, so many cities and counties in those two states are opting out of their state laws legalizing cannabis that they are putting the efficacy of legalization at risk..

In Washington, the question of whether cities and counties can legally prohibit legal marijuana businesses outright is still being litigated in the courts. See Lawsuit To Stop Cities From Banning Marijuana, How to Sue a City or County Over Cannabis and We’ve Sued Wenatchee Over Its Cannabis Ban Because The Voters Should Decide. In Colorado, there is no doubt that the cities and counties may prohibit marijuana businesses in their communities where state law patently allows it.

In Oregon and Alaska — the newest recreational marijuana states — the legality of local bans is cut and dry: both states explicitly permit local bans in their state legislation. In Oregon, cities and counties are free to ban cannabis businesses, but they can do so only by a vote of their citizens. We do not like this law, but at least it makes a modicum of sense. In Alaska, cities and counties can ban cannabis either by local ordinance or by a local vote.

Unfortunately, even before the ink is dry on their states’ yes to adult use marijuana votes, cities and counties in both Alaska and Oregon are threatening either to ban cannabis entirely, or to impose local taxes that will push it into near oblivion. In Alaska, Anchorage is contemplating prohibition. Since 300,000 of Alaska’s 735,000 people live in Anchorage, a ban there could be devastating. The decision whether Anchorage bans cannabis will ultimately be made by an eleven person assembly. Think on that for a second.

I have testified in front of state legislatures and presented on the topic of legal marijuana businesses nearly fifty times in multiple states (and even before the US Congress), and my message regarding local control never wavered: if you want legalization to replace the black market, you have to take control from the municipalities regarding implementation. Voters in multiple states have now voted to both legalize cannabis and to see whether legalization will work, and the states should not allow these bold democratic experiments to be derailed by the will of the few. It is not fair to allow six to eleven people to nullify — even partially — state-wide votes of the people.

We are not against local control, don’t get us wrong. Zoning, nuisance, and local licensing and permitting ordinances for marijuana businesses are fine by us. In fact, nine times out of ten, we work with our clients and the local governments to make sure that our clients are abiding by such local ordinances or that such local ordinances are being sensibly enacted and enforced. We actually believe that many local ordinances will help marijuana legalization in the long term by maintaining the support of the people. It is not good for any of us to turn the community against marijuana by surrounding an elementary school with 24 hour pot shops with large neon lights. But we vehemently believe that it is unfair, undemocratic, and unnecessary to allow locals to ignore state-wide votes.

An Anchorage Assemblyman was quoted as saying, “we want to be in the driver’s seat of how the community responds to the statute.” But who is the “we” to which this Assemblyman is referring? We know it is not the city of Anchorage because 51 percent of city residents voted to legalize. In other words, the “we” to which this Assemblyman is referring is actually himself and six to ten of his compatriots.

Bruce Schulte, an Anchorage resident and a spokesman for the Coalition for Responsible Cannabis Legislation had this to say about the Anchorage Assembly usurping the vote of the people: “[the Anchorage’s Assembly] told 51 percent of the Anchorage voters who passed this that their time and energy has been wasted because 11 members of the Assembly know better … that’s not good governance.”

And, of course, he’s right.