UPDATE 2-Washington cities can ban pot shops despite state OK

Thu Jan 16, 2014 5:51pm EST

(Adds details on opinion, reaction)

By Jonathan Kaminsky

OLYMPIA, Wash. Jan 16 (Reuters) - Cities in Washington state may still opt to ban or regulate marijuana businesses within their boundaries despite a voter-approved state law legalizing recreational pot, the state attorney general said on Thursday.

Washington state and Colorado became the first U.S. states to legalize recreational marijuana following voter referendums in 2012, capitalizing on rapidly changing public opinion about the drug, which remains illegal under federal law.

But in a move that at least one regulator said could complicate efforts to root out a black market for marijuana, state Attorney General Robert Ferguson said in a formal opinion that the law did not require counties, cities or towns to allow marijuana businesses to operate locally.

The opinion marked an early victory for at least three local governments that have enacted bans on pot businesses within their borders, including Pierce County, south of Seattle.

More than 20 others have moratoriums in effect to keep such businesses from opening, at least temporarily, according to the Municipal Research and Services Center of Washington.

The opinion came in response to a request for clarification from the state's three-member Liquor Control Board, the main regulator of its nascent recreational pot industry.

In a conference call with reporters, Ferguson said the ballot measure that Washington state voters passed to legalize recreational-use marijuana contains no language precluding local governments from banning pot businesses.

"If the drafters of the initiative wanted to preempt local authority to ban or regulate marijuana businesses, they could have done so. They did not," said Ferguson, a Democrat. "It is not my role to read language into the initiative that is not there."

HEADED FOR COURTS?

Acknowledging that his opinion would likely not be the last word on the subject, Ferguson said he "would not be surprised" to see the issue resolved in the courts. Unlike Washington state, Colorado's pot law clearly allows local governments to ban recreational marijuana businesses within their borders.

Alison Holcomb, a Seattle-based attorney with the American Civil Liberties Union who was the main author of the initiative, sharply disagreed with Ferguson's analysis, saying the authority given to the Liquor Control Board to issue pot business licenses - and to act to limit the black market - made a ban on local restrictions implicit.

"We didn't think we needed to be redundant," Holcomb said. Steve Smith, city attorney for the central Washington state city of Wenatchee, which has moved to prohibit marijuana businesses on the grounds that they are illegal under federal law, characterized Ferguson's opinion as "comforting."

"The attorney general's opinion is not law, but it does give us more direction and comfort that our position is supportable," he said.

Chris Marr, who sits on the Liquor Control Board, said Ferguson's opinion was both surprising and disappointing, adding that the board has not decided whether it will issue licenses to prospective businesses where local bans exist in light of the attorney general's opinion.

Marr added that the opinion's effect could be to make it easier for the black market for marijuana to maintain a foothold in areas of the state where there is no legal alternative.

"In those areas you've pretty much handed it over entirely to the illicit market," he said. (Editing by Cynthia Johnston and Gunna Dickson)