AG's opinion on marijuana to have no effect on Auburn pot moratorium

In 2012 Washington 55 percent of Washington voters made it legal to sell and have recreational marijuana inside the state.

But according to an opinion issued Jan. 16 by the office of State Attorney General Bob Ferguson, I-502, as drafted and presented to the voters, left counties and cities free to regulate or flat out ban pot-selling businesses inside their boundaries.

The AG released the opinion Jan. 16 in response to a request from the chair of the Washington State Liquor Control Board.

"Under Washington law, there is a strong presumption against finding that state law preempts local ordinances," the opinion states. "Although Initiative 502 establishes a licensing and regulatory system for marijuana producers, processors, and retailers in Washington State, it includes no clear indication that it was intended to preempt local authority to regulate such businesses. We therefore conclude that I-502 left in place the normal powers of local governments to regulate within their jurisdictions.

"While I-502's drafters could have structured I-502 to require local governments to accept marijuana businesses, they did not do so. If the Legislature wants to change that, it can amend the law," the opinion concludes.

The Auburn City Council on Sept. 14 slapped an initial moratorium of up to one year on the acceptance and processing of applications for business licenses, permits or approvals for marijuana, cannibis-related businesses inside city limits. It would give them time, council members said after the vote, time to review the laws, time for council subcommittees to review all the issues engendered by contradictions between state and federal guidelines.

City Attorney Dan Heid said the AG's opinion does not affect the City's moratorium.

"Even if the City elected to go that direction or some other direction, we need to go through the process of evaluating what we can and can't do," Heid said last week.

The City of Kent has already banned such businesses inside its boundaries, Heid noted, and much rides upon the outcome of Kent's case before the state Supreme Court.

"The City of Kent chose to ban these types of businesses, which sounds in conformity with the AG's opinion. But the Supreme Court could come up with a different opinion," Heid said.

It's theoretically possible, Heid continued, although highly unlikely, that in light of the AG's opinion, every county and city could ban marijuana-related businesses, resulting in the odd situation of a voter-approved initiative legalizing the possession and sale of marijuana but nobody actually being allowed to sell it anywhere.

Auburn has had one formal applicant for a marijuana-related business license, which was denied because of the moratorium. A second party is interested but has not yet filed, according to City records.

The Attorney General's office issues opinions only when members of the state legislature, statewide elected officials, appointed heads of state agencies, boards and commissions and county prosecuting attorneys ask it to do so.Formal Attorney General's Opinions are statements of the Attorney General's official views on legal questions relating to the duties of a public officer. They are not binding on the courts but are usually given careful consideration and respect.

When an opinion is requested, the office first decides whether the request is appropriate for an opinion. If the answer is, there is a lengthy research, drafting, and review process. For formal opinions, the office publishes a notice in the state register and considers comments submitted by the public. An assigned attorney carefully drafts the opinions and the Assistant Attorneys General, the Opinions Chief, the Solicitor General and the Attorney General reviews them.

The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions.

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