The Washington Court of Appeals Division II has ruled that Clark County can lawfully ban the retail sale of marijuana within its unincorporated areas. In a unanimous decision issued on March 13 in Emerald Enterprises, LLC v. Clark County, the court rejected arguments that the Washington Uniform Controlled Substances Act (USCA) preempts a Clark County ordinance banning the retail sale of recreational marijuana in unincorporated areas so long as the federal government listed marijuana as a controlled substance. The USCA codified Initiative 502 and legalized the limited production, processing, and sale of recreational marijuana in Washington. The court said the USCA does not grant retailers an affirmative right to sell marijuana, it does not authorize retail stores in the unincorporated areas of every county, and it does not prevent a county from prohibiting retail recreational marijuana sales.

The court’s ruling is the first appellate decision in Washington state on this issue and follows an earlier Washington Attorney General’s opinion that the USCA does not preempt local government action and that local governments retain the authority to enact bans on marijuana sales. The decision also is consistent with the Washington State Liquor and Cannabis Board’s regulations that explicitly provide for local governments to retain zoning authority.

In addition to Clark County, four other Washington counties (Franklin, Klickitat, Walla Walla, and Yakima) and 77 cities prohibit retail marijuana sales.