New legal questions raised about pot rules

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WALLA WALLA — The state Liquor Control Board has asked the state Attorney General for formal opinions on whether local governments can ban marijuana-related businesses or make them impractical through local regulations.

Although Initiative 502 gives the liquor board the authority to license pot growers, producers and retailers, local governments have jurisdiction over land use issues such as zoning. This raises two questions, liquor board chairwoman Sharon Foster said in a letter to Attorney General Bob Ferguson.

The first is whether local governments are pre-empted by state law from outright banning the location of a licensed marijuana grower, processor or retailer within their jurisdiction.

The second is whether a local government can establish land use regulations that exceed Liquor Board requirements or business license requirements “in a fashion that makes it impractical for a licensed marijuana business to locate within their jurisdiction?”

Liquor control board spokesman Brian E. Smith has said there is nothing in I-502 that allows a community or jurisdiction to opt out of allowing marijuana-related operations. He said today that Foster’s request is intended to clear up the regulatory questions.

“Many cities and counties have asked us what they can or can’t do,” he said. “We believed that the cities, counties and state would all benefit from some clarity and potentially avoid litigation.”

While some areas, such as Walla Walla County, College Place and Waitsburg, have adopted moratoriums on zoning and land use regulations other jurisdictions, such as the city of Walla Walla, are moving ahead to accommodate the state’s nascent marijuana industry.

At least one city, Wenatchee, has enacted a virtual ban on marijuana-related businesses after its City Council voted 4-3 last month to not exempt such operations from requiring a business license. The city’s current rules require all businesses comply with local, state and federal laws, and marijuana remains illegal under the federal Controlled Substances Act.

According to The Associated Press, some Wenatchee City Council members who voted against the exemption said they didn’t feel comfortable allowing businesses to circumvent federal law.

“Federal law is superior over the state,” said Wenatchee Councilman Bryan Campbell.

Similar concerns were cited by Jesse Nolte, Walla Walla County deputy prosecuting attorney who advises the county commission.

During a hearing in September on whether the county should enact a moratorium, Nolte said that although U.S. Attorney General Eric Holder has said his office won’t sue to stop Washington from allowing recreational marijuana, the county should still be concerned about legal action for violating the Controlled Substances Act.

“The Department of Justice cannot rewrite federal law,” Nolte told commissioners at a Sept. 3 hearing on a moratorium. “If you’re doing something that violates federal law, you’re still liable for prosecution.”

Andy Porter can be reached at andyporter@wwub.com or 526-8318.

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