413 P.3d 92
Wash. Ct. App.2018Background
- Voters passed Initiative 502 (I-502) in 2012, and the Legislature codified its provisions into the UCSA, authorizing a licensed, regulated market for recreational marijuana for adults 21+ and creating licensing authority in the Washington State Liquor and Cannabis Board (the Board).
- The Board established licensing rules and a county-based cap on the number of retail licenses; issuance of a state retail license did not supplant local zoning or authorize violations of local ordinances.
- In May 2014 Clark County adopted an ordinance banning retail recreational marijuana sales in its unincorporated areas; the ban did not apply to medical marijuana.
- Emerald Enterprises obtained a Board retail license for a location in unincorporated Clark County; the County objected, but the Board issued the license. The County then enforced its ordinance, ordering Emerald to cease sales and revoking a building permit.
- Emerald sued asserting the County ordinance was preempted by the UCSA and therefore invalid under article XI, section 11 of the Washington Constitution; lower courts upheld the County and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Clark County's ban on retail recreational marijuana sales is preempted by state law or otherwise conflicts with article XI, §11 | Emerald: Ordinance irreconcilably conflicts with UCSA/I-502 because it forbids what state law permits, thwarts legislative/voter intent, and strips authority the UCSA confers to the Board; thus preempted | County: Local police/zoning power under art. XI, §11 remains unless state law clearly preempts; UCSA licenses are regulatory preconditions, not affirmative rights to operate in any local jurisdiction; revenue-sharing amendments assume local opt-outs | Held: Ordinance is not preempted and does not conflict with state law; county may ban retail sales in unincorporated areas. |
| Whether the UCSA expressly preempts local regulation of marijuana retail siting | Emerald: RCW 69.50.608 and the UCSA indicate a comprehensive state scheme that preempts local laws inconsistent with chapter 69.50 | County: RCW 69.50.608 targets criminal penalties; UCSA does not clearly occupy the field of siting/zoning; Board regulations preserve local zoning authority | Held: No express preemption; statute lacks clear intent to occupy the field of siting or to strip local zoning power. |
| Whether the UCSA impliedly (field) preempts local bans because uniformity is required to accomplish initiative goals | Emerald: Allowing local bans would frustrate I-502’s purpose to create a statewide regulated market and reduce illegal sales | County: UCSA’s purposes (regulation, revenue, law enforcement priorities) do not require every jurisdiction permit retail sales; statutory language and Board rules preserve local zoning; revenue distribution contemplates local prohibitions | Held: No implied preemption; the UCSA does not evidence intent to displace local zoning or to require retail availability everywhere. |
| Whether issuance of a state retail license creates a right to operate regardless of local law | Emerald: A state license should override local bans or zoning restrictions, enabling retailers to operate | County: A state license is a regulatory precondition and expressly does not authorize violations of local ordinances; local zoning decisions remain valid | Held: State license does not confer an unconditional right to operate contrary to local law; local ban stands. |
Key Cases Cited
- Weden v. San Juan County, 135 Wn.2d 678 (recognizing licensing as a precondition, not an entitlement)
- Rabon v. City of Seattle, 135 Wn.2d 278 (state licensing does not compel local permission)
- Lawson v. City of Pasco, 168 Wn.2d 675 (field preemption and limits on reading regulatory acknowledgment as affirmative authorization)
- Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wn.2d 428 (local regulation yields where it strips statutorily granted discretion)
- Wahkiakum County v. Dep’t of Ecology, 184 Wn. App. 372 (local ban conflicted with a state statutory scheme that mandated a preferred disposal method)