By Chris Crew
If you happen to live in a city or county that is trying to prevent you from starting your marijuana business, do not give up hope. Realizing your dream of opening your marijuana business may still be in the cards. After all, the majority of Washingtonians voted for Initiative 502 to legalize recreational marijuana. It is a minority of elected officials that have decided to thumb their noses at the democratic process by enacting bans and moratoriums that are directly counter to the purpose of I-502. Through a combination of a lobbying campaign and a legal strategy, many of these elected officials can be persuaded to accept the will of the voters and allow your legal marijuana business.
Why take action?
Many license applicants feel intimidated by the idea of lobbying or taking legal action. This leads to the wait-and-see approach. People can try to wait out the city or county with the hope that their local elected leaders will eventually feel the wave of change. If they get lucky, some other prospective marijuana business owner in their area will mount a successful lawsuit or lobbying effort; but if they don’t get lucky, they are going to miss out.
Most savvy business owners are not willing to sit back and wait for that to happen. That is for good reason. My perspective is that there is a slowly closing window where running your marijuana business will be absurdly profitable. The current ridiculously high retail price-per-gram of marijuana will eventually come down a little. In the meantime, many of the new I-502 marijuana businesses are generating extremely impressive revenues. Just waiting to see if a ban or moratorium will get lifted could cost your new business hundreds of thousands of dollars, or worse, keep it from ever even opening.
The best strategy to fight your local moratorium starts with a lobbying campaign. This can be as simple as going to your local city council or county commissioner meetings and giving brief, prepared speeches during the citizen comment section of those meetings. If you can get friends and supporters to come and speak alongside you, and go to a few meetings in a row, you will be taken much more seriously. Look for someone on the council or commission that seems supportive. You may be able to get them to put you on their meeting agenda. This will allow for more discussion time and increase your ability to successfully persuade them. Elected officials frequently give in to sustained citizen demands.
If you are afraid of coming off poorly or simply want a little more strength in your approach, consider hiring a lobbyist or advocate to represent you. An experienced advocate can do a combination of speaking on your behalf at public meetings and setting up private meetings with each of the elected officials. These private meetings have the potential to be very fruitful. If your initial lobbying campaign is not successful in persuading your elected officials to change their position, it may be time to consider a legal strategy.
A legal strategy has the power to tremendously influence elected officials in three key ways.
First, your legal strategy creates an ongoing attention to your issue. Once you file a lawsuit, you force the city or county to focus on and reconsider the decision to implement a moratorium. It also forces the city or county to seek in-depth advice from an attorney. With a lawsuit, you can change the narrative and give the elected officials a new reason to see I-502 businesses from different perspectives.
Second, using a legal strategy forces the elected officials to acknowledge that blocking implementation of I-502 can be costly. Keep in mind that most elected officials are regularly making difficult budget decisions that forego funding important community projects — some because they cost a few thousand dollars more than their budget allocates. Fighting to defend a moratorium or ban on I-502 businesses could cost the city or county thousands of dollars every month in attorney fees. These mounting fees will constantly remind elected officials that prohibiting a business that is clearly allowed by state law is a serious matter that has consequences. A lawsuit forces elected officials to connect the trade-offs that are occurring as a result of focusing on prohibiting I-502 businesses. These trade-offs of valuable time and resources are a powerful reason for a city or county to rethink whether or not to maintain a moratorium on legal marijuana businesses is really a top priority for their constituents. In the last few weeks alone, after considering the costs involved with a legal battle, Mason County and the cities of Chehalis, Centralia, Elma and Hoquiam each decided to scuttle their respective moratoriums.
Third, a legal strategy gives your elected officials political cover for throwing in the towel and letting your business move forward. Put yourself in their shoes. They have taken the stance, most likely, that allowing marijuana businesses will hurt your community. Their supporters are applauding them for taking “bold” stands on marijuana. These elected officials are afraid to go back to those same people and say that they changed their minds. The lawsuit gives the elected officials a reasonable explanation for changing their position. They can say that in their hearts they still hate the evil reefer, but that the city or county will waste too many resources if they continue delaying implementation of I-502.
In my opinion, the moratoriums and bans are unconstitutional for two main reasons. First, the moratoriums and bans are unjustly taking your property without due compensation. The prohibition on the government taking your property is a bedrock principle and based on the takings clause of the Constitution. Second, the moratoriums and bans are preempted by previously passed Washington State law — Initiative 502. When state and local laws are in conflict, the local laws are preempted from going into law by the preemption clause of the Constitution. These two constitutional vulnerabilities are giving many plaintiffs the confidence they need to move forward, while worrying many city and county attorneys.
As the lead attorney for THC Law Firm, I recently filed a lawsuit against the city of Bonney Lake over its moratorium. My clients are asking for $2.5 million in damages as a result of not being able to open a retail marijuana store after winning the licensing lottery. The risk that the city will have to pay my clients anything near this sum is a good reason for many elected officials to consider allowing state-licensed marijuana businesses to operate in their city.
If a local moratorium or ban is destroying your dreams of opening a marijuana business, it is time to consider fighting back. Through a combination of lobbying and a legal strategy, many elected officials can be persuaded to accept the will of the voters and allow your legal business to open. Often, fighting the bully is the best way to get them to leave you alone.