ORDINANCE NO. 637
AN ORDINANCE OF THE CITY OF UNIVERSITY PLACE, WASHINGTON PERTAINING TO MARIJUANA, ALSO KNOWN AS CANNABIS; ADOPTING LOCAL REGULATIONS FOR RECREATIONAL MARIJUANA AS DEFINED IN STATE LAW AND MEDICAL CANNABIS AS DEFINED IN STATE LAW; REPEALING ORDINANCE NO. 631 WHICH ESTABLISHED A MORATORIUM ON MARIJUANA USES; ADOPTING A NEW CHAPTER IN THE UNIVERSITY PLACE MUNICIPAL CODE, “MARIJUANA/CANNABIS USES” WHICH ESTABLISHES LOCAL REGULATIONS FOR ALL MARIJUANA USES; RECOGNIZING THE CONFLICT WITH FEDERAL LAW; AND ADOPTING LEGISLATIVE FINDINGS
WHEREAS, the cultivation, possession or distribution of marijuana, also known as cannabis, and marijuana products is a criminal violation of federal law through the federal Controlled Substances Act (“CSA”) which lists marijuana as a schedule one controlled substance defined as highly addictive with no known medical value; and
WHEREAS, the CSA is the supreme law of the land and supersedes any conflicting State enactments; and
WHEREAS, originating with Washington State Initiative 692, passed in 1998, state law (RCW 69.51A the “Medical Use of Cannabis Act”) authorizes the “medical” use of cannabis by certain qualifying “patients” and allows up to ten (10) qualifying patients to join together to provide the in-kind resources to cultivate a “collective garden” of up to fifteen (15) plants per patient; and
WHEREAS, a portion of an amendment to the Medical Use of Cannabis Act (Engrossed Second Substitute Bill 5037, 2011), which would have allowed non-profit “dispensaries” was vetoed in its entirety by Governor Gregoire, and the Medical Use of Cannabis Act does not authorize “dispensaries,” nor does it authorize “collective gardens” to sell cannabis to qualifying patients which can include minors, in any manner analogous to a retail sale; and
WHEREAS, Washington State Initiative 502, passed in 2012, contains two separate subjects: first, it purports to decriminalize the possession and consumption of certain amounts of marijuana within the State; and second, it directs State government to implement a marijuana production, processing and retail sale industry; and
WHEREAS, as a matter of law, no State initiative can change or supersede the federal CSA; and
WHEREAS, decriminalizing the possession and consumption of certain amounts of marijuana within the State does not require State government officials to violate federal law; however, Initiative 502’s separate mandate to implement a marijuana production, processing and retail sale industry in Washington does purport to compel State elected and appointed officials and employees to engage in conduct which violates federal law and subjects them to criminal prosecution and forfeiture of property as well as violation of federal grant obligations, and their oaths of office; and
WHEREAS, acknowledging the fundamental conflict between I-502 and the marijuana-industry portion of the federal CSA, on August 29, 2013, the US Department of Justice (DOJ) issued a press release indicating that the federal administration would not seek to invalidate state marijuana legalization schemes “for now,” and also issued prosecutorial guidance to US Attorneys regarding enforcement of marijuana laws which expressly reserved the right to invalidate the state legalization schemes altogether; and
WHEREAS, on February 14, 2014, the DOJ issued another press release and set of prosecutorial guidelines indicating that the federal administration was not “likely” to prosecute banks that banked marijuana money so long as the banks didn’t get into any of the DOJ’s eight ‘areas of concern.” DOJ made clear that banking marijuana money was still illegal and their guidelines did not confer immunity; and
WHEREAS, neither the DOJ press releases, nor the prosecutorial guidelines changed the law, the CSA and all related federal criminal statutes remain unaltered, and the DOJ position can change at any time, including with a change in the federal administration in 2017; and
WHEREAS, the DOJ has made clear that the guidance provided to federal prosecutors does not confer any immunity from prosecution on anyone participating in any way in the State marijuana industry; and
WHEREAS, all business, investments or other activities by private parties, including banks, and public officials purporting to implement I-502 and regulate marijuana and cannabis under the authority of the Medical Use of Cannabis Act, or I-502, remain subject to criminal prosecution and asset forfeiture; and
WHEREAS, on September 10, 2013, the City Attorney sent a letter to US Attorney for the Western District of Washington (attached hereto and incorporated herein as Exhibit A) requesting clarification regarding whether there was any legal basis to conclude that University Place elected and appointed officials and employees would not be subject to federal criminal sanctions for participating in the local permitting and regulation of recreational marijuana; and
WHEREAS, the City Attorney never received any response; and
WHEREAS, it is mid-2014, and the current federal administration which has expressed ambiguous tolerance for the violation of federal marijuana laws will end in 2016; and
WHEREAS, there has been no legislation advanced in the United States Congress to change federal marijuana laws; and
WHEREAS, the approach of the federal administration, which will take office in 2017, is unknown and unknowable at this time; and
WHEREAS, the City Council does not desire to subject itself, or attempt to subject, any other officer or employee of the City to federal criminal prosecution and asset forfeiture, regardless of the likelihood of such federal enforcement; and
WHEREAS, attempting to compel City officers or employees to subject themselves to federal criminal penalties could result in employer liability for the City; and
WHEREAS, neither the Medical Use of Cannabis Act, nor the state Uniform Controlled Substances Act, preempts the local regulatory authority, including the zoning authority, of the City; and
WHEREAS, in January 2014, in response to a request by the Washington State Liquor Control Board, the Washington State Attorney General issued a formal Attorney General Opinion (“AGO” 2014 No. 2) which affirmed that I-502 did not in any way impair the authority of Washington cities or counties to prohibit marijuana businesses, or to regulate marijuana businesses in a manner that imposed requirements and regulations greater than those in State law; and
WHEREAS, on November 4, 2013, by Ordinance 631 the City Council, after conducting a public hearing, extended a six (6) month moratorium on the establishment, location, operation, licensing, or maintenance of facilities, businesses or any other activities involving the production, sale and use of marijuana and marijuana products, which expires on May 4, 2014; and
WHEREAS, the Washington State Liquor Control Board has established a system for licensing marijuana producers, marijuana processors, and marijuana retailers and has announced its intent in 2014, to issue licenses for marijuana producers, marijuana processors, and retail recreational marijuana stores in defiance of and without regard for local moratoriums, prohibitions or requirements; and
WHEREAS, it is, therefore, necessary to establish appropriate regulations for state licensed recreational marijuana businesses and collective cannabis gardens proposing to operate within the City; and
WHEREAS, a public hearing was held on April 14, 2014, regarding the regulations set forth in this Ordinance and the City Council weighed the testimony and considered evidence received in enacting this Ordinance; and
WHEREAS, the Washington State Constitution and statutes authorize the City to make and enforce within its limits all such local regulations as are not in conflict with general laws, including the adoption of land use controls. Additionally, the City will advance the health, safety and welfare of its residents by regulating uses involving the production, processing, and retailing of marijuana within the City, and the City Council finds it to be in the best interests of public health, safety and welfare to adopt the regulations set forth in this Ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UNIVERSITY PLACE DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Legislative Findings. The recitals and findings set forth above are hereby adopted as the City Council’s legislative findings in support of the regulations adopted by this Ordinance.
Section 2. Moratorium Repealed. Ordinance No. 631 is hereby repealed.
Section 3. Regulations Enacted. New Chapter 5.35 “Marijuana/Cannabis Uses” of the University Place Municipal Code, is hereby adopted as shown in Exhibit B, which is attached hereto and incorporated herein by reference.
Section 4. Severability. If any section, subsection, paragraph, sentence, clause, or phrase of this Ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance or its application to any other person or situation.
Section 5. Effective Date – Emergency. The City Council hereby finds and declares that an emergency exists because there is a potential that persons seeking to engage in marijuana-cannabis activities could receive licenses from the state for inappropriate locations within the City, and claim vesting before enactment of adequate and appropriate regulations, this Ordinance shall become effective immediately upon passage in order to preserve the public health, safety and welfare.
PASSED BY THE CITY COUNCIL ON APRIL 14, 2014.
Denise McCluskey, Mayor
Emelita Genetia, City Clerk
APPROVED AS TO FORM:
Steve Victor, City Attorney
Effective Date: 04/14/14