Last November, the citizens of Washington State approved Initiative 502, the legalization of marijuana. The Liquor Control Board (LCB) has been meeting, studying, and hearing testimony in order for the state to have an orderly roll-out of this new law and have now released their regulations. Retail stores may not be within 1,000 feet of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, library or arcade. (We have an amendment that will also include religious institutions.)
The County Council has been watching what is happening at the state level and trying to figure out what is best for the citizens of Pierce County. Before I go further, I want you to know that Pierce County passed I-502 by a majority of 54 percent compared to 55 percent statewide. Every single County Council district passed it, in both rural and urban areas.
Key to this discussion, and our debate at the Council, is the federal government’s position on marijuana. The U.S. Attorney recently released a memo that addresses Washington’s (and Colorado’s) legalization of marijuana. The U.S. Attorney has “historically focused its resources on large-scale criminal enterprises, gangs, and cartels… addressing (sic) the most significant threats.” (U.S. Department of Justice, MEMORANDUM FOR ALL UNITED STATES ATTORNEYS, Aug. 29, 2013). The feds’ priorities are on distribution to minors, interstate distribution, trafficking of other drugs under the cover of marijuana, preventing violence and firearms in the marijuana trade, preventing drugged driving and other adverse public health consequences, growing marijuana on public lands, and possessing or use on federal property. It goes on to say that the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. As the states implement their new laws, the Department of Justice will have an expectation that “states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests.”
There are two basic tracks that our three ordinances are following. Two of the ordinances have the effect of a total ban.
The first, Ordinance 2013-112 sponsored by Councilmember McDonald, focuses on the federal government preemption over state government and states that the production, processing and retailing of marijuana is illegal under the Federal Controlled Substances Act (CSA) and therefore prohibited in the County. The second, Ordinance 2013-111 sponsored by Council Members Flemming and Richardson, calls for an applicant to receive an exemption from the FCA to be able to either sell, grow, or process marijuana.
The second track is responsive to the voters’ support of legalization of marijuana. This ordinance 2013-110 is sponsored by Councilmember Talbert and me. Our ordinance establishes a system of zoning regulations for retail businesses, producers and processers. This is building on the regulations that are being established by the State Liquor Control Board. It is designed to allow for these businesses but only in certain zones or areas of the county. Without zoning regulations, these businesses have the potential to mushroom anywhere in the county.
This is not as easy as saying yes or no to implementation of I-502. In order to figure out how each of these would work and some of the complications, let’s walk through a scenario. First, you need to know that the Liquor Control Board will be permitting all types of marijuana business throughout the state, even if we have a ban. Back to the scenario…Joe Businessman gets a license from the Liquor Control Board. He then goes to the county to get the various permits needed to open a business. Under 2013-112, the ordinance establishes a county code that follows federal law and goes against state law. Since the county is an arm of state government, this puts the county in a difficult position. The County Executive has to decide if she will allow county staff to follow state law and proceed with permitting or go against state law and follow federal law. Under 2013-112 Joe would be told, “Sorry, you can’t do business here.” So, Joe can go away; or open a state licensed and authorized business without permits with the possibility of the county closing his operations; or not open. The last two leaves the probability for lawsuits against the county for loss of business income, and may place the county in a position to be sanctioned by the state for not following state law.
Ordinance 2013-111 calls out the discrepancy between the federal law and the state law and therefore is attempting to “get permission” from the feds in order not to be prosecuted for what is seen as a federal crime. On the surface, this seems reasonable. Let’s make sure the feds are with us. However, the federal government has given exactly one exemption and it was for marijuana research. It is not likely to give exemptions to each applicant and therefore will have the effect of a ban. Back to Joe. He goes to the county for his permits and is told, “Come back when you have the exemption from the feds.” So Joe is off to the feds to get his exemption, which may take a month? A year? 5-10 years? Or not at all. Who knows? Once again, off to the courts to settle another lawsuit for loss of business income. And we still have the conflict of the county staff, mentioned in the last scenario.
Ordinance 2013-110 follows state law. Regulations are in place. Zoning is in place. Joe gets his license knowing ahead of time that there are only certain areas where he can do business. This is currently the case with any business in the county. Joe goes to the county and gets his permits. If he has followed all of the criteria – re: zoning, siting, size, etc. set forth in state and county law – he then gets his permits.
So, why is 2013-110 the best route to go? The people of Washington voted in favor of legalizing marijuana. The U.S. Attorney strongly emphasizes the central importance of strong and effective regulatory systems. The feds do not want this new law to result in rampant use and abuse of marijuana. Neither do we. The Liquor Control Board will be giving out 17 retail business licenses and unlimited production licenses and unlimited processing licenses. It is necessary to establish appropriate land use and zoning regulations in order to ensure that such businesses are located in a manner that is in keeping with the policies of Pierce County’s land use plan. The zoning will have the effect of limiting the location of the retail businesses and the location and number of processing and production businesses. Without this legislation, there will be no limits in locations and number. 2013-110 puts controls into the law. 2013-111 and 2013-112 do not and result in doing nothing. Doing nothing is not a solution to controlling marijuana sites and use in Pierce County.
Connie Ladenburg is a member of the Pierce County Council.