State's top lawyer says I-502 allows cities, counties to block pot

A formal opinion from Washington’s attorney general that says cities and counties can ban marijuana businesses has brought a new wrinkle to the state’s effort to build an industry around the once-illegal, psychoactive plant.

Attorney General Bob Ferguson issued the opinion Jan. 16 in response to a request from Sharon Foster, chair of the Washington State Liquor Control Board, the agency tasked with implementing a regulated marijuana market.

Ferguson’s opinion says that the language of Initiative 502, the measure that legalized possession and sale of recreational pot in Washington, does not prevent local governments from regulating or even banning marijuana businesses within their jurisdictions. It also suggests that the state Legislature could amend the law to restrict local governments’ authority on the matter, if lawmakers chose to do so.

Ferguson’s opinion states:

“Under Washington law, there is a strong presumption against finding that state law preempts local ordinances. 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.”

Foster responded in a Jan. 16 statement:

“The legal opinion will be a disappointment to the majority of Washington’s voters who approved Initiative 502. We’re not yet sure how this opinion will change the implementation of the initiative. If some local governments impose bans it will impact public safety by allowing the current illicit market to continue. It will also reduce the state’s expectations for revenue generated from the legal system we are putting in place.”

Foster said the state’s liquor control board is discussing its next steps.

A story by Gene Johnson of the Associated Press (published Jan. 16 by The Herald Business Journal in Everett, Wash., one of The Bellingham Business Journal’s partner publications) cites a study by a Seattle-based think tank called The Center for the Study of Cannabis and Social Policy showing nearly three dozen of the state’s 75 largest cities have adopted moratoriums on pot businesses.

The Bellingham City Council enacted a moratorium last year, but later reversed the measure. City officials are in the process of crafting permanent regulatory rules for marijuana businesses to operate within city limits.

The Ferndale City Council approved a measure last November updating its municipal code to account for pot business.

Lynden city leaders implemented a moratorium last September, saying they wanted to allow more time for community input on the matter.

Evan Marczynski, associate editor of The Bellingham Business Journal, can be reached at 360-647-8805 or

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