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The Yakima City Council's sudden reversal of course on marijuana this week could lead the city into unknown waters and potential litigation if it bans commerce in the substance, which is now legal in small amounts. The council on Tuesday passed a motion by a vote of 4-3 to ask legal staff to draft an ordinance that would prohibit the growing, processing and retail sale of marijuana in city limits. The city is currently under a six-month moratorium for such businesses, although none is expected to open in the state until May or June at the earliest.
Council members Micah Cawley, Kathy Coffey and Sara Bristol opposed drafting a ban, but the motion was approved because of a change in position by Councilwoman Maureen Adkison, who had sided with the other three on a previous vote in October. The council argued about the implications for the area's youth if marijuana could be bought legally, but the dominant question in the debate was what liability the city faces if it does or does not allow marijuana businesses to open. Other communities have asked the same question. To help answer that, the state Liquor Control Board sent a letter Nov. 1 to the state Attorney General's Office asking for clarification on whether governments are pre-empted from an outright ban or from modifying land-use restrictions to make it next to impossible for marijuana businesses to open.
In interviews Wednesday, the initiative's author argued there are protections built into the law to prevent cities from opting out, while Yakima's Assistant City Attorney Mark Kunkler said the law doesn't specifically prohibit the city from zoning marijuana businesses out. Alison Holcomb, the author of the initiative that legalized recreational marijuana and a criminal justice director for the state American Civil Liberties Union, said any ordinance that includes an outright ban on marijuana businesses is in conflict with state law. "That would mean the local ordinance would be pre-empted," Holcomb said. "It would subject the city to litigation from a private individual who receives a license from the state."
Kunkler, the city's point man on drafting regulations for marijuana businesses, said Initiative 502 doesn't supersede other state laws that allow Yakima to regulate land use within its boundaries. He said the city could exercise zoning authority similar to what it has done to prevent strip clubs from opening in the city. "There is no express pre-emption," Kunkler said. The state has capped the number of retail licenses at 334 across Washington. It will issue up to 14 in Yakima County: five in Yakima, one each in Selah, Sunnyside and Grandview, and six at-large sites.
There is no limit on the number of producer and processor licenses that will be issued. Liquor Control Board spokesman Brian Smith said the state will issue licenses regardless of what moratoriums or bans have been passed by local governments. The board began accepting license applications Monday. "What I've heard from others is there's a chance there could be litigation at the local level," Smith said. "No one wants to see that. That's why we reach out to Attorney General (Bob) Ferguson."
The Attorney General's Office is expected to issue an opinion in February, Smith said. Kunkler said litigation is an unfortunate reality for governments, regardless of where they stand on the issue. "I don't know that we could take any position that would be free of legal challenge," he said. "I think there's a risk of legal challenge in however we choose to approach regulation." In August, the U.S. Justice Department provided guarantees and conditions under which it would not interfere with the implementation of the law, including assurances from the state that recreational marijuana would be strictly regulated.
At Tuesday's council meeting, Adkison questioned what it would mean for the city if the federal government ever changed its stance. "We're accepting the state's approval of the growth, sale and use of marijuana in the face of the fact that the federal government still considers it a crime," Adkison said. But Holcomb said there is strong reason to believe the Justice Department won't change its stance so long as the state follows through on its promise to properly regulate the industry. Her reasoning is based largely on the fact that both Democratic and Republican presidential administrations have used significant prosecutorial discretion on the issue of medical marijuana in states that have allowed it since the late 1990s.
Kunkler said it's not unreasonable to think the federal government could hold both state and local officials criminally accountable if it changed its stance on the recreational marijuana law. But he said he could not recall an instance of when the federal government has ever gone after a municipality for allowing the implementation of even a medical marijuana law that was passed at the state level. "I can't think of any specific city at this time that has really experienced that," Kunkler said. "A lot of cities have conservative legal staffs that think we ought to create something to reduce that risk." Holcomb said the belief that the federal government would go after a city such as Yakima doesn't add up.
"I don't think there has been any court decision that has found any merit to an argument that a city or county employee would be criminally liable for simply administering a law that involves the licensing and regulation of an activity that has been deemed legal under state law," Holcomb said. Now that the city has been asked to draft a ban, Kunkler said it would take relatively little time to prepare such a document that could be submitted for public hearings before the Planning Commission and City Council. Probably by January we'll be well on the way to having something enacted," he said.
News Moderator - The General @ 420 MAGAZINE ®
Source: Yakimaherald.com
Author: Mike Faulk
Contact: Yakima Herald Republic | Contact
Website: Yakima Herald Republic | Changing course on pot
Council members Micah Cawley, Kathy Coffey and Sara Bristol opposed drafting a ban, but the motion was approved because of a change in position by Councilwoman Maureen Adkison, who had sided with the other three on a previous vote in October. The council argued about the implications for the area's youth if marijuana could be bought legally, but the dominant question in the debate was what liability the city faces if it does or does not allow marijuana businesses to open. Other communities have asked the same question. To help answer that, the state Liquor Control Board sent a letter Nov. 1 to the state Attorney General's Office asking for clarification on whether governments are pre-empted from an outright ban or from modifying land-use restrictions to make it next to impossible for marijuana businesses to open.
In interviews Wednesday, the initiative's author argued there are protections built into the law to prevent cities from opting out, while Yakima's Assistant City Attorney Mark Kunkler said the law doesn't specifically prohibit the city from zoning marijuana businesses out. Alison Holcomb, the author of the initiative that legalized recreational marijuana and a criminal justice director for the state American Civil Liberties Union, said any ordinance that includes an outright ban on marijuana businesses is in conflict with state law. "That would mean the local ordinance would be pre-empted," Holcomb said. "It would subject the city to litigation from a private individual who receives a license from the state."
Kunkler, the city's point man on drafting regulations for marijuana businesses, said Initiative 502 doesn't supersede other state laws that allow Yakima to regulate land use within its boundaries. He said the city could exercise zoning authority similar to what it has done to prevent strip clubs from opening in the city. "There is no express pre-emption," Kunkler said. The state has capped the number of retail licenses at 334 across Washington. It will issue up to 14 in Yakima County: five in Yakima, one each in Selah, Sunnyside and Grandview, and six at-large sites.
There is no limit on the number of producer and processor licenses that will be issued. Liquor Control Board spokesman Brian Smith said the state will issue licenses regardless of what moratoriums or bans have been passed by local governments. The board began accepting license applications Monday. "What I've heard from others is there's a chance there could be litigation at the local level," Smith said. "No one wants to see that. That's why we reach out to Attorney General (Bob) Ferguson."
The Attorney General's Office is expected to issue an opinion in February, Smith said. Kunkler said litigation is an unfortunate reality for governments, regardless of where they stand on the issue. "I don't know that we could take any position that would be free of legal challenge," he said. "I think there's a risk of legal challenge in however we choose to approach regulation." In August, the U.S. Justice Department provided guarantees and conditions under which it would not interfere with the implementation of the law, including assurances from the state that recreational marijuana would be strictly regulated.
At Tuesday's council meeting, Adkison questioned what it would mean for the city if the federal government ever changed its stance. "We're accepting the state's approval of the growth, sale and use of marijuana in the face of the fact that the federal government still considers it a crime," Adkison said. But Holcomb said there is strong reason to believe the Justice Department won't change its stance so long as the state follows through on its promise to properly regulate the industry. Her reasoning is based largely on the fact that both Democratic and Republican presidential administrations have used significant prosecutorial discretion on the issue of medical marijuana in states that have allowed it since the late 1990s.
Kunkler said it's not unreasonable to think the federal government could hold both state and local officials criminally accountable if it changed its stance on the recreational marijuana law. But he said he could not recall an instance of when the federal government has ever gone after a municipality for allowing the implementation of even a medical marijuana law that was passed at the state level. "I can't think of any specific city at this time that has really experienced that," Kunkler said. "A lot of cities have conservative legal staffs that think we ought to create something to reduce that risk." Holcomb said the belief that the federal government would go after a city such as Yakima doesn't add up.
"I don't think there has been any court decision that has found any merit to an argument that a city or county employee would be criminally liable for simply administering a law that involves the licensing and regulation of an activity that has been deemed legal under state law," Holcomb said. Now that the city has been asked to draft a ban, Kunkler said it would take relatively little time to prepare such a document that could be submitted for public hearings before the Planning Commission and City Council. Probably by January we'll be well on the way to having something enacted," he said.
News Moderator - The General @ 420 MAGAZINE ®
Source: Yakimaherald.com
Author: Mike Faulk
Contact: Yakima Herald Republic | Contact
Website: Yakima Herald Republic | Changing course on pot
