U.S. Attorney General Jeff Sessions threw a bit of a monkey wrench into Clark County when he decided to rescind the Cole Memorandum last week.
The memorandum was the Obama Administration’s guidance for the hands-off Department of Justice approach to state cannabis legalization, provided the states followed a particular set of rules. Rescinding the memorandum makes the possibility of federal crackdowns on legal states more likely. And the bomb dropped just as the Clark County Council was planning a meeting in February to discuss the possibility of lifting it’s county-wide cannabis ban, said Marc Boldt, council chair.
“It raises a lot of questions,” Boldt said. “It’s even more up in the air now than it was. I called Jaime Herrera Beutler’s office for her to give us some inkling of what this means. But this will definitely impact what our decision will be.”
Clark County has had a ban on cannabis businesses since the industry launched in 2014, while Vancouver and Battle Ground, which are both within the county but under their own city governments, legalized when the industry launched.
John Larson, owner of Sticky’s, a cannabis dispensary in Hazel Dell in part of the county ban area, has been arguing about the legality of county bans since the industry launched in Washington. His shop opened in 2015, despite the ban, and he has been going back and forth with the county and the courts ever since.
“We have a certificate of occupancy,” Larson said. “We went through all the safety inspections and passed those. It’s not up to the county what we sell. As long as we’re state legal, they really don’t have the right to ban us.”
The issue of area bans, which have come up in many legal states, is actually a bit thorny in Washington.
The authors of Initiative 502, which legalized cannabis in the state, didn’t address area bans in that legislation at all, which left a gap, said Robert McVay, an attorney with the Harris Bricken law firm in Seattle.
“I-502 was silent on whether or not cities and counties could have bans on marijuana,” McVay said. “The legal argument, if you compare it to alcohol, is that the alcohol law gives cities the right to remain dry. I-502 doesn’t.”
In 2014, in response to that gap, Washington Attorney General Bob Ferguson released an opinion that cities and counties could legally ban cannabis businesses. But that opinion is not binding, McVay said.
“Is it a winning argument? That’s tough to say,” McVay said. “The AG’s office doesn’t have binding authority on this. It’s up to the state Legislature.”
And so far, the Legislature hasn’t looked at any new laws to address issues in that gap – and it actually may not, McVay added.
“I don’t think the Legislature seems likely to do anything to clear this up,” he said. “From most people’s perspectives, it’s settled that cities and counties can have moratoriums and bans (even if the law doesn’t quite say that).”
The legal fight between Larson and Clark County is the longest running battle over area bans in the state. Other areas, like Fife and Wenatchee, which had legal fights over their area bans, ended up lifting their bans in the end, McVay said.
“It’s not fun for a city to litigate this,” McVay said. “Sometimes it’s easier for a city to zone and regulate instead of banning. I’m not sure how much it makes sense for a county to have a ban when you have incorporated cities within its boundaries that don’t.”
Larson’s case has been winding through the courts and will likely end up in the state Supreme Court unless the county lifts the ban, he said.
The case is currently under appeal, and Clark County Superior Court Judge Daniel Stahnke in June allowed Sticky’s to reopen while the process continues. The ruling also required Larson to pay a $205,000 bond with the court before reopening to cover potential fines from the county, which he has paid.
Larson, who was actually the third licenced store owner in the state, said no matter which way the appeal goes, it’s likely the case is headed to the state Supreme Court, which could take a few years. With the bond, he can legally stay open until the case is decided, he said.
“We’ll be in this for the next couple years,” Larson said. “Based on what Clark County does and how they feel, we’ll end up in the Supreme Court either way because if we do win in appellate court, it’s likely the county will take us to the Supreme Court.”
Boldt and the county council had a work session to discuss lifting the ban in December, and prior to the Sessions decision, things were looking perhaps a bit better than 50-50 that the ban would be lifted.
“Out of that work session we came up with a plan to have an open hearing in February to see what the citizens think,” Boldt said.
The results of that meeting, if they were positive, would have led the county to consider new zoning rules for cannabis, he said.
By banning the businesses, the county has lost somewhere between $300,000 and $400,000 in excise tax revenues, which would be a small part of the county’s $200 million budget, Boldt said.
But the thought of using that money to address the opioid epidemic has drawn some interest from the council, he said.
“We had talked about if we did do it, that money would be earmarked for prevention and drug and alcohol treatment,” Boldt said. “It’s not a small amount for that.”
Prior to Sessions’ decision, the council appeared split on the issue, with Boldt likely the deciding vote.
“I’ve always been against it, but at the same time it’s in Vancouver and Battle Ground, and we still have to deal with it,” Boldt said. “The pro is essentially it’s a legal product in the state, and people that have a license want to sell it. The con is that since the county is a drug and alcohol treatment provider, this goes against our mission.”
Whatever happens with the Sessions decision, Larson said he plans to see the fight through to the end. Eventually, he hopes he can also have a more positive work relationship with the county, too.
“I feel that since I have a right, I should be able to do what that license says,” Larson said. “It’s the principle of the thing. I’m legal. The government needs to follow the law, just like I do.”