Cities and Counties Banning Cannabis: Why Not Let The People Decide?


Colorful Seal of George Washington 1889Washington State cities and counties continue to implement bans and temporary moratoria to prevent recreational marijuana from becoming a reality within their borders. How can these local governments even opt out of I-502? According to municipalities, they can prohibit I-502 for the following reasons:

+ The opinion from the office of the State Attorney General (AG) regarding I-502

+ Inherent police powers

+ Federal prohibition

We briefly analyze each of these alleged sources of banning power in the context of I-502 as follows:

The State AG’s opinion. In January 2014, the AG’s office formally opined that, among other things, nothing in I-502 prevents local authorities from banning I-502 facilities. In turn, cities and counties have used that opinion to justify prohibiting State-licensed marijuana businesses. We sued Wenatchee over its ban (which is based almost entirely on the AG’s opinion) and we are confident that this will not be the last anti-marijuana city against which one of our clients takes legal action. Though the A/G’s opinion is influential, it is certainly not binding and it has no legal power. It is one attorney’s interpretation of I-502, and that opinion is going to be put to the legal test. The AG has intervened in our Wenatchee lawsuit to argue the merits of his January opinion.

Police powers. Cities and counties have what are called “police powers.” This allows them to make laws and engage in regulation to promote and preserve the health, welfare, and safety of their own citizens. Meaning, if a new law (like I-502) is passed by the State, cities and counties may temporarily stall that new law’s implementation to study the secondary effects of that law (like energy consumption, environmental effects, etc.) to protect the people and to preserve the “status quo.” This, however, does not give them carte blanche to abuse their police powers or to ban things outright without justifiable data and reasons — moratoria ultimately have to be “reasonable” based on the facts and data alleged. Though many cities and counties have claimed that cannabis businesses in their communities will lead to increased crime, teen marijuana use, and chaos, none have any data to support this.

Federal preemption. Despite the most recent Cole memo, marijuana is still federally prohibited, even in states like Washington and Colorado that have robust regulatory regimes. Because of federal prohibition, some Washington municipalities argue that they can ban I-502 businesses as a result. Essentially, they assert that if marijuana is illegal federally, cities and counties should not be forced into “violating” federal law by permitting, licensing, or allowing I-502 businesses within their jurisdictions.

For local governments, the argument over federal prohibition is blatantly transparent where federal funding is at issue. For example, a newsletter authored by the Mayor of the City of Leavenworth points out that every city or town receives federal grant money for public works projects like street repair, drinking water, public building maintenance, and various other projects. To receive these grants, local governments must demonstrate to the feds that they are in compliance with local, state, and federal law. In that newsletter, the Mayor asked whether the City could “make that statement if we license and allow a business that is out of compliance with a federal law?” Though federal grant money can mean a lot to a small town that lacks the self-sustaining economy of a big city, to the best of our knowledge, the feds have yet to deny grant money to a city or county for allowing marijuana businesses within its borders (in marijuana friendly states).

Ultimately, the question of whether cities and counties can ban I-502 will be settled in court. We contend that cities and counties do not have the power to enact blanket prohibitions against cannabis when the voters have made clear that they want the exact opposite. If a people’s initiative means anything, local government shouldn’t have the power to pick and choose those laws they want to enforce. Not only do we contend that blocking the will of the citizens is illegal, we see it as dangerously undemocratic as well.

One way or the other, we’ll know soon enough the exact extent of municipal power when it comes to I-502. We intend to make law in this space. Good law that supports what the voters want.