By Jerry Cornfield
The (Everett) Daily Herald
Community banks and credit unions are ready and willing to provide financial services to entrepreneurs in the state’s new legal pot industry.
But they aren’t able to, at least not yet.
Marijuana businesses, even ones that will soon be legally licensed in this state, are considered criminal enterprises under federal law, which makes handling their money a crime in the eyes of the Department of Justice.
Until the agency changes its outlook or Congress changes the law — and efforts are under way to do both — those getting into the pot business can’t open a bank account, secure a line of credit or obtain a loan from a federally insured financial institution in their neighborhood.
For those who make a living doing those things, it’s frustrating.
“We survive in our community and we prosper in our community by providing banking services,” said Denny Eliason, lobbyist for the Washington Bankers Association, which represents nearly all of the state’s 93 banks. “It is not a matter of do we want to offer these services. We’re eager to but we’re not willing because there is too much at stake.”
The landscape is the same for credit unions.
“Our hands are tied,” said David Curtis, director of compliance services for the Northwest Credit Union Association, which has 104 members in Washington. “Until we can get some official guidance, everybody is in a holding pattern.”
Under the federal Controlled Substances Act, marijuana is deemed a dangerous drug and it’s illegal to grow, distribute and sell it.
In August, U.S. Attorney General Eric Holder said his department would not upend efforts of Washington and Colorado to implement regulated marijuana industries approved by their voters. The agency will steer clear as long as the states run their systems in a way that prevents distribution to minors, keeps money from sales out of the coffers of gangs and prevents diversion of marijuana to other states where recreational use by adults remains illegal.
But the feds didn’t green-light banking and financial services. The last time the department looked at the money side came in 2011 when it put out guidelines for how it would deal with medical marijuana businesses. The message to banks was clear: don’t do it.
“Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws,” Deputy Attorney General James Cole wrote in the 2011 memo.
A lack of banking options won’t impede those who apply for a producer, processor or retailer license in Washington starting Nov. 18.
“We don’t require an applicant to have a business bank account,” said Brian Smith, communications director for the state Liquor Control Board. “During the investigation phase of their application, we may ask that they provide personal or business bank statements to verify source of funds.”
Without banking services, it’s not farfetched to imagine retailers keeping large sums of money in safes and paying taxes with suitcases of cash.
Gov. Jay Inslee and Colorado Gov. John Hickenlooper pointed out such concerns in an Oct. 2 letter to federal financial officials urging them to find a way to permit normal banking transactions, credit card services and other activities.
“Our states will soon be licensing hundreds of retail stores, each of which will, without a normal banking relationship, be forced to conduct business on an all-cash basis,” the governors wrote in their Oct. 2 letter. “This creates an unnecessary inviting target for criminal activity.”
Access to banking services and credit card processing is “a necessary component in ensuring a highly regulated marijuana system that will accurately track funds, prevent criminal involvement, and promote public safety,” they wrote.
Among those receiving the letter were heads of the Treasury Department, Federal Deposit Insurance Corp. (FDIC), National Credit Union Association and the Comptroller of the Currency.
“We’re all talking. So much is in the hands of our federal counterparts,” said Scott Jarvis, director of the state’s Department of Financial Institutions. “Having all that cash running around doesn’t really provide the kind of safe environment the Attorney General has said he wants to see.”
If Jarvis gets asked his advice from a banker, he can’t provide much guidance.
“We’re not telling them ‘no.’ We’re not telling them ‘yes’. We’re telling them you have to make your own decision,” he said. “As a result I think everybody is sitting back and waiting.”
Representatives of banks and credit unions said any rule changes must be crystal clear on what will, and will not, be allowed.
“We are going to be cautious,” Eliason said. “It is an emerging industry. It is going to be a lucrative one. We want an ironclad assurance that we would not be putting charters at risk by banking this industry.”
Jerry Cornfield is a staff writer for The Daily Herald in Everett, Wash., a partner publication of The Bellingham Business Journal.