Emerald Enterprises And John Larson v. Clark County

Filed
Washington State
Court of Appeals
Division Two
March 13, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
EMERALD ENTERPRISES, LLC, and JOHN No. 47068-3-II
LARSON, consolidated with
No. 49395-1-II
Appellants,
v.
CLARK COUNTY, a Washington State PUBLISHED OPINION
County,
Respondent.
MELNICK, J. — At issue in this case is whether Clark County can lawfully ban the retail
sale of marijuana within its unincorporated areas.1 Emerald argues that a Clark County ordinance
(Ordinance) prohibiting the retail sale of marijuana in its unincorporated areas violates article XI,
section 11 of the Washington Constitution because it forbids what Washington’s Uniform
Controlled Substances Act (UCSA) permits, thwarts the state statutory scheme’s legislative
purpose, and exercises power the UCSA did not confer on local governments. Emerald also
contends the Ordinance is either expressly or impliedly preempted by chapter 69.50 RCW. We
uphold the Ordinance.
1
This consolidated appeal is from two cases. In one, Emerald Enterprises, LLC and John M.
Larson (collectively Emerald) appeal the Cowlitz County Superior Court’s ruling that Clark
County’s marijuana ban is not preempted by Washington’s drug laws. Second, Emerald appeals
the Clark County Superior Court’s affirmation of the Clark County Hearing Examiner’s final order
which ordered Emerald to cease all sales of marijuana and marijuana products and revoked
Emerald’s building permit.
47068-3-II / 49395-1-II
FACTS
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 ch. 69.50 RCW (2014). As amended, the UCSA legalized3 the
limited production, processing, and sale of recreational marijuana to persons twenty-one years and
older. Former RCW 69.50.360 (2014). It also created a regulatory state licensing system through
the Washington State Liquor and Cannabis Board (Board). Former RCW 69.50.325-.369 (2014).
The Board adopted rules governing marijuana sales. Former ch. 314-55 WAC (2014)
(adopted pursuant to statutory authority provided at RCW 69.50.345). In October 2013, the Board
established the application requirements for marijuana retailer licenses. Former WAC 314-55-015
to -050, -079, -081 (2014). After determining the maximum number of stores per county, the
Board held a lottery for licenses from prospective retailers. Former WAC 314-55-081(1) (2014).
2
In this opinion we refer to “I-502” as the initiative voted on by the public. “UCSA” refers to the
relevant sections of the Washington statutes that codified I-502. The parties do not distinguish
between the two. We use the broader term “UCSA” whenever reasonably likely to reflect the
parties’ arguments because I-502 has been amended more than once since the voters passed it.
3
The Washington State Liquor and Cannabis Control Board’s website says, “Initiative 502
legalized marijuana use for adults however there are still a number of restrictions.”
https://lcb.wa.gov/mj-education/know-the-law. While some may use the term “decriminalize,” we
use the term utilized by the Board.
2
47068-3-II / 49395-1-II
Before granting any license, the Board conducted mandatory background checks, including any
history of administrative violations. Former WAC 314-55-020(3) (2014). Cities, counties, or
other authorities could object to a business receiving a license. Former WAC 314-55-020(1), -
050(9) (2014). However, the final decision to issue a retail license remained with the Board.
Former WAC 314-55-050 (2014).
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. RCW
69.50.331(7)(b). Nonetheless, in September 2014, the Board issued Emerald’s license for the retail
sale of recreational marijuana.
4
Clerk’s Papers (CP) at 294-302 (2014 Op. Att’y Gen. No. 2).
5
The Ordinance has other components. This opinion, refers to the retail sale of recreational
marijuana unless otherwise noted.
3
47068-3-II / 49395-1-II
II. PROCEDURAL FACTS
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
6
This court stayed Emerald’s appeal pending the resolution of the related case. We then
consolidated the cases on appeal.
4
47068-3-II / 49395-1-II
Commercial Zoning District, and had obtained its building permit based on a misrepresentation.
Pursuant to the Land Use Petition Act (LUPA),7 Emerald appealed to the Clark County Superior
Court, which affirmed the Examiner. This appeal followed.
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 article
XI, section 11 of the Washington Constitution because it irreconcilably conflicts with the UCSA.
In addition, Emerald contends that the Ordinance is either expressly or impliedly preempted by I-
502 and the UCSA. We disagree.
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 Wash. 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
article XI, section 11 of the Washington Constitution, counties may make and enforce all
regulations that do not conflict with state law. Constitutional preemption challenges are reviewed
de novo. Watson v. City of Seattle, 189 Wash. 2d 149, 158, 401 P.3d 1 (2017).
7
Ch. 36.70C RCW et seq.
8
The parties do not argue that any material facts are in dispute.
5
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B. County Police Powers Under the Washington Constitution
In Washington, local governments wield significant regulatory powers. See WASH. CONST.
art. XI, § 11. They derive from Article XI, section 11 which states, “Any county, city, town or
township may make and enforce within its limits all such local police, sanitary and other
regulations as are not in conflict with general laws.” This provision, known as “home rule,”
presumes that local governments are autonomous. See Watson, 189 Wash. 2d at 166. “The scope
of [a county’s] police power is broad, encompassing all those measures which bear a reasonable
and substantial relation to promotion of the general welfare of the people.” State v. City of Seattle,
94 Wash. 2d 162, 165, 615 P.2d 461 (1980).
We therefore presume that the County has the regulatory authority to enact the Ordinance
and the County’s ordinance is valid unless preempted. WASH. CONST. art. XI, § 1; Cannabis Action
Coal. v. City of Kent, 183 Wash. 2d 219, 225-26, 351 P.3d 151 (2015); State v. Kirwin, 165 Wash. 2d
818, 825, 203 P.3d 1044 (2009); HJS Dev., Inc. v. Pierce County, 148 Wash. 2d 451, 477, 61 P.3d
1141 (2003). Because enacted ordinances are presumed constitutional, Emerald has the burden of
showing unconstitutionality beyond a reasonable doubt. Pierce County v. State, 150 Wash. 2d 422,
430, 78 P.3d 640 (2003); Weden, 135 Wash. 2d at 693.
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 Wash. 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.
6
47068-3-II / 49395-1-II
1. The Ordinance Does Not Prohibit What State Law Permits
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 Wash. 2d at 693 (quoting Brown v. City of
Yakima, 116 Wn.2d 556,561, 807 P.2d 353 (1991)); WASH. CONST., art. XI, § 11. The focus of
the inquiry is on the substantive conduct proscribed by the two laws. For example, Kirwin held
that an ordinance may punish littering more harshly than state law because both prohibit the same
underlying conduct. 165 Wash. 2d at 826. No conflict exists “if the provisions can be harmonized.”
Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wash. 2d 428, 433, 90
P.3d 37 (2004). Here, the County’s local ban on retail marijuana stores can be harmonized with
state law.
The UCSA legalizes, with caveats, recreational marijuana and permits its regulated sale.
RCW 69.50.325 to .390. It gives the Board authority to adopt rules regarding “[r]etail outlet
locations and hours of operation,” RCW 69.50.342(1)(f), and requires that it promulgate rules for
the licensing of retail stores. RCW 69.50.345. The licensing scheme creates the framework
allowing select people to legally sell marijuana. RCW 69.50.325.
But while the UCSA permits the retail sale of marijuana, it does not grant retailers an
affirmative right to sell marijuana. RCW 69.50.325(3)(a) states that “[t]here shall be a marijuana
retailer’s license,” but does not require the issuance of licenses. RCW 69.50.354 states that retail
outlets “may be licensed” by the Board, but does not require the issuance of licenses. And the
general rule is that the fact that an activity can be licensed under state law does not mean that the
activity must be allowed under local law. Rabon v. City of Seattle, 135 Wash. 2d 278, 292, 957 P.2d
7
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621 (1998); Weden, 135 Wash. 2d at 695; Lawson v. City of Pasco, 168 Wash. 2d 675, 682-84, 230 P.3d
1038 (2010).
Similarly, nothing in the UCSA states that a county may not prohibit retail recreational
marijuana sales. RCW 69.50.354 states that the Board may determine the maximum number of
retail outlets in each county, but does not set a minimum number.
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 Wash. 2d 428, and Entertainment Industries Coalition v. Tacoma-Pierce
County Health Department, 153 Wash. 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 Wash. 2d at 433-34. The
resolution stripped water districts of discretion granted by law. Parkland Light, 151 Wash. 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. RCW 69.50.325, .342, .345, .354, .357. The Ordinance and the UCSA can be
simultaneously enforced.
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 Wash. 2d at 664. Because the resolution prohibited
what state law permitted, it was struck down. Entm’t Indus. Coal., 153 Wash. 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. RCW 69.50.354.
8
47068-3-II / 49395-1-II
Therefore, unlike the business owners in Entertainment Industries Coalition, who were granted
discretion to designate smoking locations by state law and deprived of that discretion by local law,
receipt of a Board license does not confer the specific right to open a retail location in a given
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.” WAC 314-55-020(15)
(Board regulation). Board licensing is an additional requirement for opening a new business. We
conclude the UCSA does not create a right to engage in the specific activity prohibited by the
Ordinance.
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 Wash. 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 Wash. 2d 736, 746, 257 P.3d
586 (2011). Here, we construe the applicable statutes not because they are ambiguous, but to
9
47068-3-II / 49395-1-II
determine whether the Ordinance banning marijuana sales in the County thwarts the legislative
purpose.
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 Wash. App. at 377.
In 1992, the legislature enacted a statewide statutory biosolids program, chapter 70.95J RCW, to
be implemented and managed by the Department of Ecology (Ecology). RCW 70.95J.020. The
statute authorized Ecology to regulate and permit the use, disposal, and application of Class B
9
Emerald characterizes all three statements of intent as speaking to matters of “statewide, general
concern.” Br. of Appellant at 26. Emerald points out that if all local governments enacted
ordinances like the County’s, the UCSA’s statewide regulatory scheme would be rendered
meaningless. However, this hypothetical fact situation is not the case before us.
10
47068-3-II / 49395-1-II
biosolids. RCW 70.95J.020, .025; Wahkiakum County, 184 Wash. App. at 379. In 2011,
Wahkiakum County passed an ordinance wholly prohibiting the land application of Class B
biosolids within the county. Wahkiakum County, 184 Wash. App. at 374.
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 Wash. 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 Wash. 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.” RCW 70.95J.005(2); Wahkiakum County, 184 Wash. App. at 382. The statute
established a clear preference for disposal through reuse, such as land application, in place of
incineration or disposal in a landfill. RCW 70.95J.005(2); Wahkiakum County, 184 Wash. App. at
382. Wahkiakum County’s ordinance frustrated the state law’s legislative purpose specifically
because it banned the exact disposal method the state scheme sought to maximize.
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
11
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encourage “to the maximum extent possible” the safe disposal of biosolids through land
application. RCW 70.95J.005(2); 184 Wash. App. at 382. In this case, the Ordinance frustrates no
such mandate. The UCSA authorizes the Board to regulate marijuana sales. The Board has no
mandate to maximize or encourage sales. See RCW 69.50.342, .354.
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. RCW 69.50.345. The
Board’s own regulations clarify that retail licenses do not supersede local law, including local
zoning authority. WAC 314-55-020(15). A ban on retail stores within unincorporated Clark
County does not, without more, thwart the purpose and intent of the legislature.10
Moreover, subsequent amendments to RCW 69.50.540 strongly indicate that the legislature
intended to preserve the right of local governments to ban retail stores. Former RCW 69.50.540
(2014), amended by LAWS OF 2017, 3rd Spec. Sess., ch. 1, § 979; LAWS OF 2015, 3rd Spec. Sess.,
ch. 4, § 967; LAWS OF 2015, 2nd Spec. Sess., ch. 4, § 206. In 2015, the legislature reconciled the
medical and recreational marijuana statutes. LAWS OF 2015, ch. 70. The legislature also passed
SUBSTITUTE H.B. 2136, 63rd Leg., Reg. Sess. (Wash. 2014), which reformed marijuana tax
regulation. Former RCW 69.50.540(2)(g)(i) (2014), amended by LAWS OF 2015, 2d Spec. Sess.,
10
Thwarting legislative purpose would be of greater concern if, as a practical matter, the ban made
it very difficult or impossible for Clark County residents to legally purchase marijuana through an
authorized retailer. However, this is not the case before us, nor has Emerald argued that the
Ordinance has the practical effect of a county-wide ban. We note that numerous licensed retailers
operate in the incorporated areas of Clark County, including in nearby Vancouver.
12
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ch. 4, § 206. As amended, the language of RCW 69.50.540 establishes new revenue sharing
guidelines:
(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.
RCW 69.50.540(2)(g)(i)(A)-(B) (emphasis added).
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. RCW 69.50.540(2)(g)(i)(A). Seventy percent is
distributed to counties, cities, and towns on a per capita basis, even if there are no retail locations
operating within the jurisdiction. RCW 69.50.540(2)(g)(i)(B). This amendment particularly
benefits counties, which receive sixty percent of this distribution based on their proportional
population. These financial carrots, however, are accompanied by a stick: “[f]unds may only be
distributed to jurisdictions that do not prohibit the siting of any state licensed marijuana producer,
processor, or retailer.” RCW 69.50.540(2)(g)(i)(B). Thus, local jurisdictions that allow retail sales
receive a share of tax revenues. Jurisdictions that ban marijuana sales do not.
By expressly contemplating that local jurisdictions can “prohibit the siting of any state
licensed marijuana . . . retailer[,]” the UCSA acknowledges that local governments retain zoning
13
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authority over retail locations. RCW 69.50.540(2)(g)(i)(B).11 The amendments to RCW
69.50.540 also demonstrate that the legislature did not intend to strip local governments of that
authority. Instead, the revenue sharing mechanism created by RCW 69.50.540(2)(g)(i) uses
financial incentives to encourage local governments to allow marijuana sales. This cooperative
approach is consistent with the legislature’s expressed intent to enter into a “partnership with local
jurisdictions”12 regarding marijuana policy, and strongly suggests the legislature intended to
preserve the right of local governments to ban retail stores.
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 WASH. CONST. art. XI, § 11 (counties may
“make and enforce . . . all such local police, sanitary, and other regulations as are not in conflict
11
Any other reading of RCW 69.50.540(2)(g)(i)(B) would render the statutory language
distinguishing between jurisdictions that do and do not ban sales meaningless. Whatcom County
v. Bellingham, 128 Wash. 2d 537, 546, 909 P.2d 1303 (1996) (courts must construe statutes such that
no provision is “rendered meaningless or superfluous”).
12
LAWS OF 2015, 2d spec. sess., ch. 4, § 101 (“The legislature further finds that a partnership with
local jurisdictions in this effort is imperative to the success of [competing with the unregulated
illegal market and generating state revenue].”).
14
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with general laws.”); City of Seattle, 94 Wash. 2d at 165 (the police power of local government is “as
extensive as that of the legislature, so long as the subject matter is local and the regulation does
not conflict with general laws.”). Nevertheless, an ordinance that exercises authority reserved by
state law is unconstitutional. Wahkiakum County, 184 Wash. App. at 378.
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
Wash. 2d at 292. This principle is more commonly applied to laws preventing conduct, not allowing
it. See Lawson, 168 Wash. 2d at 677; Weden, 135 Wash. 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 Wash. 2d at 677-78. The owner argued
that the Mobile Home Landlord Tenant Act, chapter 59.20 RCW, affirmatively authorized siting
RVs in mobile home parks by virtue of regulating mobile home tenancies. Lawson, 168 Wash. 2d at
683. In rejecting this argument, Lawson concluded that the simple statutory “acknowledgement”
that RVs may be present on mobile home parks “is not equivalent to an affirmative authorization
of their presence.” 168 Wash. 2d at 683.
Similarly, in Weden, the local government adopted an ordinance prohibiting the operation
of personal watercraft on all marine waters in San Juan County. 135 Wash. 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 Wash. 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 Wash. 2d at 695.
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In this case, as in Lawson and Weden, the UCSA leaves the County’s Article XI, section
11 police powers in place. The regulatory powers the UCSA delegates to the Board amount to just
that, the power to regulate. They do not affirmatively authorize retailers to engage in the regulated
activity over the objections of local authorities. The UCSA does not create an explicit “unabridged
right” to buy or sell marijuana any more than the statute in Weden creates a right to operate personal
watercraft. In both cases, licensing is a “precondition” to participation in the regulated activity.
Weden, 135 Wash. 2d at 695. Because the power the UCSA delegates to the Board neither include
nor preclude local governments’ zoning authority, the Ordinance does not conflict with state
marijuana laws by exercising authority delegated to the Board.
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 Wash. 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 Wash. 2d at 679. Field preemption
may be express, in which case further analysis is unnecessary. See Brown, 116 Wash. 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 Wash. 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 Wash. 2d at 561.
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1. The UCSA Does Not Expressly Preempt the Ordinance
Emerald, relying on RCW 69.50.608, argues that the UCSA expressly preempts the
Ordinance. We disagree.
Express preemption requires a clear indication of legislative intent to occupy the entire
field. Lawson, 168 Wash. 2d at 679. Here, there is none.
RCW 69.50.608 states:
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,”
RCW 69.50.608, Emerald nevertheless maintains that a total ban on marijuana sales is
“inconsistent with the requirements of state law.” Br. of Appellant at 31 (quoting RCW
69.50.608). Because the statute narrowly limits its preemption to criminal violations of the UCSA,
we disagree.
The UCSA mandates that the Board regulate a specific list of relevant activities, including
aspects of production, processing and sale. RCW 69.50.325-.369. Absent clear statutory language
to the contrary, the County retains jurisdiction in all matters not explicitly delegated to the Board.13
WASH. CONST. Art. XI, § 1; 2014 Op. Att’y Gen. No. 2. Furthermore, in this case the County’s
13
As discussed, Board regulations explicitly recognize local governments’ retained zoning
authority: “The issuance or approval of a [state] license shall not be construed as a license for, or
an approval of, any violations of local rules or ordinances including, but not limited to . . . zoning
ordinances.” WAC 314-55-020(15).
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exercise of that jurisdiction which resulted in a local ban on the sale of marijuana is not inconsistent
with chapter 69.50 RCW. We are mindful that the UCSA does not require marijuana sales; it
merely sets conditions for sales that do occur, and penalties if those conditions are violated. RCW
69.50.325-.369.
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 Wash. 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 Wash. 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 Wash. 2d at 746 (quoting Amalgamated Transit Union Local 587 v. State, 142 Wash. 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 Wash. 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
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examine the underlying statutory purpose. Because the laws in question arise from I-502, we
consider the initiative, including relevant statements in the voters’ pamphlet.14
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 Wash. 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 Wash. 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.
RCW 69.50.345(2), .354. Second, the Board has the final say in retail licensing decisions. RCW
69.50.331(7)(b)-(c); WAC 314-55-050.
14
Because this argument is inextricably interwoven with Emerald’s argument about statutory
purpose, we discussed this topic in more detail in Part C.2, above.
15
This hypothetical factual scenario is not before us. We are merely determining the lawfulness
of the County’s Ordinance.
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These powers are distinct from the County’s zoning authority. The Board’s authority to
determine the maximum number of retail locations allowed under state law does not give it the
power to determine where a store is located within a given jurisdiction. Similarly, the fact that the
Board can overrule a local government’s objection to licensing means that the County does not
have final authority to decide who gets a license. It does not mean that the UCSA strips the County
of its power to determine whether retail marijuana businesses can operate within its jurisdiction.
This interpretation is consistent with the Board’s own regulations, which explicitly
recognize that local governments retain zoning authority. WAC 314-55-020(15) states: “The
issuance or approval of a [state] license shall not be construed as a license for, or an approval of,
any violation of local rules or ordinances including, but not limited to . . . zoning ordinances.”
Where “‘an agency is charged with the administration and enforcement of a statute, the agency’s
interpretation of an ambiguous statue is accorded great weight in determining legislative intent.’”
Jametsky v. Olsen, 179 Wash. 2d 756, 764 n.2, 317 P.3d 1003 (2014) (quoting Waste Mgmt. of
Seattle, Inc. v. Transp. Comm’n, 123 Wash. 2d 621, 628, 869 P.2d 1034 (1994)).16 The legislature
has failed to amend the statute in response to this regulation, indicating apparent legislative
acquiescence.17 In fact, the legislature rejected a proposed I-502 amendment containing explicit
zoning preemption language. H.B. 2322, 63rd Leg., Reg. Sess. (Wash. 2014).
16
The AGO, conducting its own analysis, similarly concluded that regulations implementing I-
502 did “not occupy the entire field of marijuana business regulation.” CP at 298.
17
“The Legislature is deemed to acquiesce in the interpretation of the court if no change is made
for a substantial time after the decision.” State v. Coe, 109 Wash. 2d 832, 846, 750 P.2d 208 (1988);
see also Baker v. Leonard, 120 Wash. 2d 538, 545, 843 P.2d 1050 (1993) (“Legislative silence
regarding the construed portion of the statute in a subsequent amendment creates a presumption of
acquiescence in that construction.”).
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In sum, the UCSA does not occupy the entire field of marijuana regulation in Washington.
Because state law has not explicitly or impliedly occupied the entire field, the County retains its
zoning authority.
We affirm the trial court’s order granting summary judgment.
Melnick, J.
We concur:
Johanson, J.
Maxa, A.C.J.
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