EMERALD ENTERPRISES, LLC, and JOHN LARSON, Appellants, v. CLARK COUNTY, a Washington State County, Respondent.
No. 47068-3-II consolidated with No. 49395-1-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
March 13, 2018
MELNICK, J.
PUBLISHED OPINION
I. BACKGROUND
On November 6, 2012, Washington voters approved Initiative 502 (I-502). LAWS OF 2013, ch. 3. The expressed purposes of I-502 included allowing law enforcement to “focus on violent and property crimes,” generating “new state and local tax revenue for education, health care, research, and substance abuse prevention,” and taking “marijuana out of the hands of illegal drug organizations.” Initiative 502, LAWS OF 2013, ch. 3, § 1.
The legislature subsequently codified I-502 within Washington‘s Uniform Controlled Substances Act (UCSA).2 Former
The Board adopted rules governing marijuana sales. Former
In January 2014, at the Board‘s request, the Attorney General‘s Office (AGO) issued an opinion regarding the authority of local governments to ban marijuana businesses.4 The AGO opinion analyzed both field and conflict preemption, and opined that state law did not preempt local government action in this area. According to the AGO, local governments retained the authority to enact local bans on marijuana sales.
On May 27, 2014, Clark County (County) passed an Ordinance, which banned, as applicable here, the retail sale of recreational marijuana within unincorporated Clark County. Clark County Code (CCC) 40.260.115.5 It forbade the sale of retail recreational marijuana so long as the federal government listed marijuana as a controlled substance. CCC 40.260.115(B)(4). It did not do the same for medical marijuana. CCC 40.260.115(B)(3).
Notwithstanding the Ordinance, Emerald applied to the Board for a retail license to sell marijuana in the unincorporated area of Clark County. The County objected.
A. Cowlitz County Proceeding
Emerald challenged the Ordinance and sought declaratory and injunctive relief in Cowlitz County Superior Court. Emerald argued that the UCSA preempted the Ordinance. Emerald and the County filed cross motions for summary judgment on the preemption issue. The AGO intervened on behalf of the County. In December 2014, the superior court ruled that the UCSA did not preempt the Ordinance. The trial court granted summary judgment in favor of the County and the AGO. This appeal followed.6
B. Clark County Proceeding
With the 2014 appeal stayed, Emerald moved ahead with development plans. In September 2015, Emerald applied for a building permit to make improvements to the retail space it rented in a commercial building in the County. Emerald described the proposed use as “General retail . . . Business will sell novelties, crafts, collectibles, and general merchandise.” CP (49395-1) at 24. On December 2, 2015, the County issued Emerald a building permit authorizing the planned improvements.
Emerald then began Board-licensed retail sales of marijuana in the County in December 2015. By January 2016, the County became aware of Emerald‘s activities and ordered Emerald to cease all sales of marijuana and marijuana products. The County also revoked Emerald‘s building permit.
Emerald appealed to the Clark County Hearing Examiner (Examiner), who ruled in favor of the County. The Examiner found that Emerald sold marijuana in violation of the General
ANALYSIS
STATE LAW DOES NOT PREEMPT THE ORDINANCE
Emerald‘s consolidated appeal asserts a single assignment of error involving preemption, i.e. that the “trial court erred in finding that [the Ordinance] does not irreconcilably conflict with state law.” Br. of Appellant at 2. Specifically, Emerald argues that the Ordinance violates
A. Legal Principles
We review “an order granting summary judgment de novo, engaging in the same inquiry as the trial court.” Weden v. San Juan County, 135 Wn.2d 678, 689, 958 P.2d 273 (1998). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c).8
Emerald argues the Ordinance is preempted by state law and thus unconstitutional. Under
In Washington, local governments wield significant regulatory powers. See
We therefore presume that the County has the regulatory authority to enact the Ordinance and the County‘s ordinance is valid unless preempted.
C. The USCA Does Not Irreconcilably Conflict with the Ordinance
We consider an ordinance to be consistent with article XI, section 11 unless it either “prohibits what the state law permits,” “thwarts the legislative purpose of the statutory scheme,” or “exercises power that the statutory scheme did not confer on local governments.” Dep‘t of Ecology v. Wahkiakum County, 184 Wn. App. 372, 378, 337 P.3d 364 (2014). Emerald argues that the Ordinance irreconcilably conflicts with the UCSA for all three reasons, and is therefore unconstitutional under article XI, section 11. We disagree.
Emerald contends that the Ordinance prohibits what the UCSA permits. We disagree. A local law “must yield” to a state statute on the same subject matter if “‘a conflict exists such that the two cannot be harmonized.‘” Weden, 135 Wn.2d at 693 (quoting Brown v. City of Yakima, 116 Wn.2d 556, 561, 807 P.2d 353 (1991));
The UCSA legalizes, with caveats, recreational marijuana and permits its regulated sale.
But while the UCSA permits the retail sale of marijuana, it does not grant retailers an affirmative right to sell marijuana.
Similarly, nothing in the UCSA states that a county may not prohibit retail recreational marijuana sales.
The UCSA did not create a specific right to a retail license in the County, nor did it authorize retail stores in the unincorporated parts of every county. As a result, Emerald‘s reliance on Parkland Light, 151 Wn.2d 428, and Entertainment Industries Coalition v. Tacoma-Pierce County Health Department, 153 Wn.2d 657, 664, 105 P.3d 985 (2005), is unpersuasive.
In Parkland Light, a county health board resolution removed discretion from the water districts to manage the disposal of biosolids in their water systems. 151 Wn.2d at 433-34. The resolution stripped water districts of discretion granted by law. Parkland Light, 151 Wn.2d at 434. Emerald argues that the Ordinance in this case similarly takes away authority statutorily granted to the Board. However, the UCSA does not empower the Board to ensure that marijuana retail locations open in every jurisdiction; the law merely directs the Board to regulate sales when they occur.
In Entertainment Industries Coalition, a county resolution imposed a complete smoking ban despite a state law delegating to business owners the right to designate smoking and nonsmoking areas in their establishments. 153 Wn.2d at 664. Because the resolution prohibited what state law permitted, it was struck down. Entm‘t Indus. Coal., 153 Wn.2d at 664.
This case is different. The UCSA authorizes the Board to designate the maximum number of licenses for each county, not the exact number of stores in each jurisdiction.
A marijuana retailer license “shall not be construed as a license for, or an approval of, any violations of local rules or ordinances, including . . . zoning ordinances.”
2. Does Not Thwart Legislative Purpose
Emerald also argues that the Ordinance unconstitutionally conflicts with the UCSA because it thwarts the will of voters and the legislative purpose of the state law. Emerald contends that the intent of the law is to address marijuana distribution as a statewide concern by generating new state and local tax revenue, taking marijuana out of the hands of illegal drug organizations, and tightly regulating its distribution. While Emerald accurately summarizes the relevant statement of intent, Initiative 502, LAWS OF 2013, ch. 3, § 1, it fails to demonstrate how this purpose irreconcilably conflicts with the Ordinance.
We consider legislative purpose and intent as an integral part of the article XI, section 11 conflict analysis. An ordinance irreconcilably conflicts with state law if it “thwarts the legislative purpose of the statutory scheme.” Wahkiakum County, 184 Wn. App. at 378. Because the UCSA began by initiative, our consideration of intent involves both the voters’ intent and the legislative intent. Roe v. TeleTech Customer Care Mgmt. (Colorado), LLC, 171 Wn.2d 736, 746, 257 P.3d 586 (2011). Here, we construe the applicable statutes not because they are ambiguous, but to
The voters’ pamphlet described I-502 by stating, “Without violating state law, people over age 21 could grow, distribute, or possess marijuana, as authorized under various types of licenses.” CP (47068-3) at 152. It did not discuss an “opt out” provision for cities or counties. The “Argument For” section included the justification that “[t]reating adult marijuana use as a crime costs Washington State millions in tax dollars and ties up police, courts, and jail space. We should focus our scarce public safety dollars on real public safety threats.” CP (47068-3) at 160. Furthermore, the pamphlet stated the tax money would become revenue for funding health care, research, and drug prevention, and that the law would take profit away from organized crime.
We also rely on the purpose statements expressed in the voters’ pamphlet for I-502. As relevant, the purposes are to: (1) allow law enforcement resources to be focused on violent and property crimes; (2) generate new state and local tax revenue for education, health care, research, and substance abuse prevention; and, (3) take marijuana sales out of the hands of illegal drug organizations. Initiative 502, LAWS OF 2013, ch. 3, § 1.9
Emerald relies on Wahkiakum County, which concluded that a county ordinance prohibiting the application of Class B biosolids conflicted with state law. 184 Wn. App. at 377. In 1992, the legislature enacted a statewide statutory biosolids program,
Wahkiakum County decided that the ordinance conflicted with the state laws regulating the disposal and land application of biosolids, in part because allowing piecemeal regulation could thwart the intent of the legislature. 184 Wn. App. at 383. “[I]f all counties had the power to determine whether to ban land application of class B biosolids, then the entire statutory and regulatory scheme enacted to maximize the safe land application of biosolids would be rendered meaningless.” Wahkiakum County, 184 Wn. App. at 383. Here, Emerald argues that upholding the Ordinance would similarly allow the UCSA to be “gutted by local bans.” Br. of Appellant at 27.
Emerald‘s reliance on Wahkiakum County is unpersuasive because the state biosolids law and the UCSA advance distinct legislative purposes. The purpose behind the biosolids statute was to ensure that “to the maximum extent possible . . . [biosolids were] reused as a beneficial commodity.”
The purpose of the UCSA is not to encourage the sale, production, or use of marijuana. It is unlike the statute in Wahkiakum County, where the legislature encouraged a specific disposal method. The UCSA allows and regulates the sale of marijuana, rather than encouraging it. This distinction is important. The ordinance in Wahkiakum County frustrated Ecology‘s mandate to
The legislature promulgated the section of the UCSA at issue to reallocate law enforcement resources, generate tax revenue, and create an alternative to the illegal drug market. Initiative 502, LAWS OF 2013, ch. 3, § 1. There is no evidence of legislative intent to regulate the location of retail stores within counties. Rather, the UCSA requires the Board to set a maximum number of retail licenses for each county, not to regulate the specific location of each store.
Moreover, subsequent amendments to
(i) . . . [T]he legislature must appropriate an amount equal to thirty percent of all marijuana excise taxes deposited into the general fund . . . for distribution to counties, cities, and towns as follows:
(A) Thirty percent must be distributed to counties, cities, and towns where licensed marijuana retailers are physically located . . .
(B) Seventy percent must be distributed to counties, cities, and towns ratably on a per capita basis. Counties must receive sixty percent of the distribution, which must be disbursed based on each county‘s total proportional population. Funds may only be distributed to jurisdictions that do not prohibit the siting of any state licensed marijuana producer, processor, or retailer.
This amendment allows counties, cities, and towns to share in the financial benefits resulting from marijuana retail sales in their jurisdictions. Thirty percent of the tax revenue is earmarked for the jurisdictions where retail stores are physically located, returning a share of locally generated taxes to the cities and towns.
By expressly contemplating that local jurisdictions can “prohibit the siting of any state licensed marijuana . . . retailer[,]” the UCSA acknowledges that local governments retain zoning
3. The County Did Not Exercise Unauthorized Power
Finally, Emerald argues that the Ordinance conflicts with the UCSA because it exercises authority not conferred to local government. Emerald argues that while local regulation may be more stringent than state law, it cannot completely ban an activity permitted by state statute—and that doing so here prevents the Board from exercising its statutory authority. See Br. of Appellant at 28 (citing Great W. Shows, Inc. v. City of Los Angeles, 27 Cal. 4th 853, 867-68, 44 P.3d 120 (2002)).
As an initial matter, Emerald has framed the issue incorrectly. The issue is not whether the legislature granted the County exclusionary authority, but whether state law specifically removes authority that the County is presumed to possess. See
In this case, Emerald fails to meet its burden to demonstrate unconstitutionality. The Board‘s authority is to license and regulate, not to guarantee that marijuana is sold in every unincorporated area in the state. As stated in Rabon, “[t]he fact that an activity may be licensed under state law does not lead to the conclusion that it must be permitted under local law.” 135 Wn.2d at 292. This principle is more commonly applied to laws preventing conduct, not allowing it. See Lawson, 168 Wn.2d at 677; Weden, 135 Wn.2d at 694.
In Lawson, the owner of a mobile home park challenged a city ordinance prohibiting the placement of recreational vehicles (RVs) in the park. 168 Wn.2d at 677-78. The owner argued that the Mobile Home Landlord Tenant Act,
Similarly, in Weden, the local government adopted an ordinance prohibiting the operation of personal watercraft on all marine waters in San Juan County. 135 Wn.2d at 684-85. A coalition in favor of personal watercraft use challenged the ordinance, arguing that state vessel registration laws preempted the ordinance. Weden, 135 Wn.2d at 688. In upholding the ordinance, Weden concluded that vessel registration was “nothing more than a precondition to operating a boat. No unconditional right is granted by obtaining such registration.” 135 Wn.2d at 695.
D. The UCSA Does Not Preempt the Ordinance
Emerald also argues that the Ordinance is expressly and impliedly preempted by state law. State law preempts a local ordinance if the “statute occupies the field, leaving no room for concurrent jurisdiction, or if a conflict exists such that the statute and the ordinance may not be harmonized.” Lawson, 168 Wn.2d at 679.
Field preemption arises when a state regulatory system occupies the entire field on a given subject matter, leaving no room for local regulation. Lawson, 168 Wn.2d at 679. Field preemption may be express, in which case further analysis is unnecessary. See Brown, 116 Wn.2d at 560. Field preemption may also be implied “from the purpose of the statute and the facts and circumstances under which it was intended to operate.” Lawson, 168 Wn.2d at 679.
Conflict preemption arises if the Ordinance directly and irreconcilably conflicts with a state statute such that the two cannot be harmonized. Lawson at 682; Brown, 116 Wn.2d at 561.
Emerald, relying on
Express preemption requires a clear indication of legislative intent to occupy the entire field. Lawson, 168 Wn.2d at 679. Here, there is none.
The state of Washington fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to controlled substances that are consistent with this chapter. Such local ordinances shall have the same penalties as provided for by state law. Local laws and ordinances that are inconsistent with the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of the city, town, county, or municipality.
Although the Ordinance does not “set[] penalties for violations of the controlled substances act,”
The UCSA mandates that the Board regulate a specific list of relevant activities, including aspects of production, processing and sale.
2. The UCSA Does Not Impliedly Preempt the Ordinance
Emerald next argues that field preemption can be implied from the statements of purpose in the UCSA as well as from “the facts and circumstances upon which the statute was intended to operate.” Br. of Appellant at 30, 33, 34. Emerald asserts that successfully replacing the illegal marijuana market with a “tightly-regulated, state-licensed system” requires marijuana regulation to be uniform throughout the state. Br. of Appellant at 34. We disagree with Emerald that the UCSA impliedly preempts the ordinance.
Field preemption may be implied from the statutory purpose, as well as the facts and circumstances in which the statue was intended to operate. Lawson, 168 Wn.2d at 679. When a statute is enacted by initiative, a court‘s purpose inquiry includes consideration of “the intent of the voters who enacted the measure.” Roe, 171 Wn.2d at 746. This analysis “focuses on the language of the statute ‘as the average informed voter voting on the initiative would read it.‘” Roe, 171 Wn.2d at 746 (quoting Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2001)). We normally only look to extrinsic evidence of voter intent, such as statements in the voters’ pamphlet, if the statute is ambiguous. Amalgamated Transit, 142 Wn.2d at 205-06. However, because Emerald‘s argument is that Washington‘s statutory regulation of marijuana impliedly preempts the entire field of recreational marijuana regulation, we must
Emerald‘s implied preemption argument asserts that allowing piecemeal county-level bans15 would render the UCSA‘s intent to establish a regulated marijuana market “meaningless.” Br. of Appellant at 33-35. Emerald correctly points out that one of I-502‘s goals was to provide a safe, regulated alternative to illegal marijuana sales. Initiative 502, LAWS OF 2013, ch. 3, § 1. However, the accomplishment of this goal does not necessitate that every unincorporated area in Washington or even every municipality in Washington allow the sale of marijuana. In addition, Emerald bears the burden to demonstrate preemption. Cannabis Action Coal., 183 Wn.2d at 226. Courts will not interpret a statute as stripping local governments of legislative authority absent clear statutory intent. Southwick, Inc. v. City of Lacey, 58 Wn. App. 886, 891-92, 795 P.2d 712 (1990). Emerald fails to show that the UCSA impliedly strips the County of its ability to exercise police power through zoning regulation. On the contrary, a closer reading of the UCSA indicates that the legislature intended to leave local governments’ zoning authority undisturbed.
The UCSA empowers the Board to influence the location of marijuana retail outlets in two ways. First, the Board determines the maximum number of retail locations in a given jurisdiction.
This interpretation is consistent with the Board‘s own regulations, which explicitly recognize that local governments retain zoning authority.
We affirm the trial court‘s order granting summary judgment.
Melnick, J.
Melnick, J.
We concur:
Johanson, J.
Johanson, J.
Maxa, A.C.J.
Maxa, A.C.J.