A Hazel Dell cannabis store operating in defiance of the county’s ban on such businesses lost a court battle on Tuesday. But its owner said it will stay open while it takes its case all the way to the state Supreme Court.
The Washington State Court of Appeals unanimously upheld Clark County’s ban on recreational cannabis in unincorporated areas of the county. A challenge to the ban was brought last year by John Larson, the owner of Emerald Enterprises, a recreational marijuana business that operates a store called Sticky’s Pot Shop at 9411 N.E. Highway 99.
“We respectfully disagree with the court’s ruling,” Larson said in an email. “We will appeal to the Supreme Court. Sticky’s Pot Shop will remain open for business while the appeal is pending.”
Emily Sheldrick, the county’s chief civil deputy prosecutor, said in an email that the county is reviewing the decision and evaluating its options.
This is the first appellate court ruling over whether local jurisdictions can ban cannabis businesses, an issue that’s existed in ambiguity since marijuana was legalized by Washington voters in 2012.
According to Municipal Research and Services Center, six counties and 80 cities in Washington have a prohibition or moratorium on marijuana business.
In May 2014, the then Clark County commissioners passed an ordinance banning retail marijuana stores, according to the ruling. In December 2015, Larson opened the store in defiance of the ban, facing fines and a revocation of the shop’s building permit. In September 2016, the store shut its doors after a judge denied Larson’s request and ordered the defiant business to close.
But in June of last year, Clark County Superior Court Judge Daniel Stahnke issued an order allowing the embattled shop to reopen while it appealed its case. Part of the deal required Larson to post a $205,000 bond to cover the $92,000 in fines the company has already accrued for defying the ban and to cover the additional penalties and costs it would owe the county if it loses its appeal.
Larson’s attorney argued that the county’s ordinance prohibiting the retail sale of cannabis in unincorporated parts of Clark County is unconstitutional because it bans an activity allowed by state law. They also argued that there is no provision in the initiative legalizing marijuana that expressly gives local jurisdictions this power.
In 2014, Attorney General Bob Ferguson issued an opinion that local jurisdictions do have this authority. In a statement, Ferguson said the ruling upholds his office’s opinion. He further said that if drafters of the initiative that legalized marijuana had intended to require local jurisdictions to allow the sale of recreational marijuana “they could have done so with a single sentence.”
In its decision, the court agreed. According to the decision, state law gives counties broad regulatory power at the local level and that the Legislature tacitly gave local jurisdictions this authority.
The decision notes that after voters legalized marijuana, lawmakers passed amendments to the law regarding the allocation of law enforcement resources and tax revenue. Under these updates to the law, counties and cities can prohibit these stores but they forgo any share of revenue from sales of the drug. The court found that the passage of these laws “strongly indicate that the Legislature intended to preserve the right of local governments to ban retail stores.”
Juliana Roe, policy director with the Washington State Association of Counties, said that her group supports counties being permitted to ban marijuana businesses. She said that the court made this point in a roundabout way, but that it’s a compelling argument.
“I think that the most telling thing is (the court found) that the state is saying you could do this, but if not, you can’t benefit,” she said.
The Clark County Council considered holding a hearing on lifting its ban but recently backed off the idea.
