Agenda - Planning Commission - 06/07/2018

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Zoning Bulletin May 10, 2018 I Volume 12 I Issue 9 WASHINGTON (03/13/18)—This case addressed the issue of whether a Washington municipality could lawfully ban the retail sale of marijuana, or whether such a ban was preempted by Washington law legalizing the sale of recreational marijuana and creating a regulatory state marijuana retail licensing system. The Background/Facts: In November 2012, Washington voters ap- proved an initiative legalizing recreational marijuana. In 2014, the state Legislature codified that initiative within Washington's Uniform Con- trolled Substances Act ("UCSA"). As amended, the UCSA "legalized the limited production, processing, and sale of recreational marijuana to persons twenty-one years and older." It also created a regulatory state licensing system through the Washington State Liquor and Cannabis Board (the `Board"). (See Former RCW 69.50.325-.369 (2014).) The Board then adopted rules governing marijuana sales and establishing the application requirements for marijuana retailer licenses. (See For- mer WAC 314-55-015 to - 050, -079, -081 (2014).) In May 2014, Clark County (the "County") passed an ordinance (the "Ordinance"), which banned the retail sale of recreational marijuana within unincorporated Clark County. Notwithstanding the Ordinance, Emerald Enterprises, LLC ("Emer- ald") applied to the Board for a retail license to sell marijuana in the un- incorporated area of Clark County. The Board issued Emerald's license for retail sale of recreational marijuana. A year later, Emerald applied to the County for a building permit for "[g]eneral retail," and the County issued the building permit to Emerald. In December 2015, Emerald began selling marijuana in the County. When the County became aware of Emerald's activities, it ordered Emerald to cease all sales of marijuana and marijuana products as such activities were in violation of the Ordinance. The County also revoked Emerald's building permit. Emerald appealed the County's enforcement actions to the County Hearing Examiner (the "Examiner"). The Examiner ruled in favor of the County, finding that Emerald sold marijuana in violation of the Ordinance, and had obtained its building permit based on misrepresentation. Emerald appealed to the Superior Court, which affirmed the Examiner. Emerald again appealed. On appeal, Emerald argued that the Ordi- nance violated article XI, Section 11 of the Washington Constitution because it "irreconcilably conflict[ed] with the UCSA." Article XI, sec- tion 11 provides: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regula- tions as are not in conflict with general laws." In addition, Emerald contended that the Ordinance was either expressly or impliedly preempted by the UCSA. © 2018 Thomson Reuters 3