issue in this case is whether Clark County can lawfully ban
the retail sale of marijuana within its unincorporated
areas. Emerald argues that a Clark County
ordinance (Ordinance) prohibiting the retail sale of
marijuana in its unincorporated areas violates article XI,
section 11 of the Washington Constitution because it forbids
what Washington's Uniform Controlled Substances Act
(UCSA) permits, thwarts the state statutory scheme's
legislative purpose, and exercises power the UCSA did not
confer on local governments. Emerald also contends the
Ordinance is either expressly or impliedly preempted by
chapter 69.50 RCW. We uphold the Ordinance.
November 6, 2012, Washington voters approved Initiative 502
(1-502). LAWS OF 2013, ch. 3. The expressed purposes of 1-502
included allowing law enforcement to "focus on violent
and property crimes, " generating "new state and
local tax revenue for education, health care, research, and
substance abuse prevention, " and taking "marijuana
out of the hands of illegal drug organizations."
Initiative 502, LAWS OF 2013, ch. 3, § 1.
legislature subsequently codified 1-502 within
Washington's Uniform Controlled Substances Act
(UCSA). Former ch. 69.50 RCW (2014). As amended,
the UCSA legalized the limited production, processing, and
sale of recreational marijuana to persons twenty-one years
and older. Former RCW 69.50.360 (2014). It also created a
regulatory state licensing system through the Washington
State Liquor and Cannabis Board (Board). Former RCW
Board adopted rules governing marijuana sales. Former ch.
314-55 WAC (2014) (adopted pursuant to statutory authority
provided at RCW 69.50.345). In October 2013, the Board
established the application requirements for marijuana
retailer licenses. Former WAC 314-55-015 to -050, -079, -081
(2014). After determining the maximum number of stores per
county, the Board held a lottery for licenses from
prospective retailers. Former WAC 314-55-081(1) (2014).
Before granting any license, the Board conducted mandatory
background checks, including any history of administrative
violations. Former WAC 314-55-020(3) (2014). Cities,
counties, or other authorities could object to a business
receiving a license. Former WAC 314-55-020(1), -050(9)
(2014). However, the final decision to issue a retail license
remained with the Board. Former WAC 314-55-050 (2014).
January 2014, at the Board's request, the Attorney
General's Office (AGO) issued an opinion regarding the
authority of local governments to ban marijuana
businesses. The AGO opinion analyzed both field and
conflict preemption, and opined that state law did not
preempt local government action in this area. According to
the AGO, local governments retained the authority to enact
local bans on marijuana sales.
27, 2014, Clark County (County) passed an Ordinance, which
banned, as applicable here, the retail sale of recreational
marijuana within unincorporated Clark County. Clark County
Code (CCC) 40.260.115. It forbade the sale of retail recreational
marijuana so long as the federal government listed marijuana
as a controlled substance. CCC 40.260.115(B)(4). It did not
do the same for medical marijuana. CCC 40.260.115(B)(3).
the Ordinance, Emerald applied to the Board for a retail
license to sell marijuana in the unincorporated area of Clark
County. The County objected. RCW 69.50.33 l(7)(b).
Nonetheless, in September 2014, the Board issued
Emerald's license for the retail sale of recreational
Cowlitz County Proceeding
challenged the Ordinance and sought declaratory and
injunctive relief in Cowlitz County Superior Court. Emerald
argued that the UCSA preempted the Ordinance. Emerald and the
County filed cross motions for summary judgment on the
preemption issue. The AGO intervened on behalf of the County.
In December 2014, the superior court ruled that the UCSA did
not preempt the Ordinance. The trial court granted summary
judgment in favor of the County and the AGO. This appeal
Clark County Proceeding
the 2014 appeal stayed, Emerald moved ahead with development
plans. In September 2015, Emerald applied for a building
permit to make improvements to the retail space it rented in
a commercial building in the County. Emerald described the
proposed use as '"General retail . . . . Business
will sell novelties, crafts, collectibles, and general
merchandise.'" CP (49395-1) at 24. On December 2,
2015, the County issued Emerald a building permit authorizing
the planned improvements.
then began Board-licensed retail sales of marijuana in the
County in December 2015. By January 2016, the County became
aware of Emerald's activities and ordered Emerald to
cease all sales of marijuana and marijuana products. The
County also revoked Emerald's building permit.
appealed to the Clark County Hearing Examiner (Examiner), who
ruled in favor of the County. The Examiner found that Emerald
sold marijuana in violation of the General Commercial Zoning
District, and had obtained its building permit based on a
misrepresentation. Pursuant to the Land Use Petition Act
(LUPA),  Emerald appealed to the Clark County
Superior Court, which affirmed the Examiner. This appeal
Law Does Not Preempt The Ordinance
consolidated appeal asserts a single assignment of error
involving preemption, i.e. that the "trial court erred
in finding that [the Ordinance] does not irreconcilably
conflict with state law." Br. of Appellant at 2.
Specifically, Emerald argues that the Ordinance violates
article XI, section 11 of the Washington Constitution because
it irreconcilably conflicts with the UCSA. In addition,
Emerald contends that the Ordinance is either expressly or
impliedly preempted by I-502 and the UCSA. We disagree.
review "an order granting summary judgment de novo,
engaging in the same inquiry as the trial court."
Weden v. San Juan County, 135 Wn.2d 678, 689, 958
P.2d 273 (1998). Summary judgment is proper if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." CR 56(c).
argues the Ordinance is preempted by state law and thus
unconstitutional. Under article XI, section 11 of the
Washington Constitution, counties may make and enforce all
regulations that do not conflict with state law.
Constitutional preemption challenges are reviewed de novo.
Watson v. City of Seattle, 189 Wn.2d 149, 158, 401
P.3d 1 (2017).
County Police Powers Under the Washington Constitution
Washington, local governments wield significant regulatory
powers. See WASH. CONST. art. XI, § 11. They
derive from Article XI, section 11 which states, "Any
county, city, town or township may make and enforce within
its limits all such local police, sanitary and other
regulations as are not in conflict with general laws."
This provision, known as "home rule, " presumes
that local governments are autonomous. See Watson,
189 Wn.2d at 166. "The scope of [a county's] police
power is broad, encompassing all those measures which bear a
reasonable and substantial relation to promotion of the
general welfare of the people." State v. City of
Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980).
therefore presume that the County has the regulatory
authority to enact the Ordinance and the County's
ordinance is valid unless preempted. Wash. Const, art. XI,
§ 1; Cannabis Action Coal. v. City of Kent, 183
Wn.2d 219, 225-26, 351 P.3d 151 (2015); State v.
Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009);
HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 477,
61 P.3d 1141 (2003). Because enacted ordinances are presumed
constitutional, Emerald has the burden of showing
unconstitutionality beyond a reasonable doubt. Pierce
County v. State, 150 Wn.2d 422, 430, 78 P.3d 640 (2003);
Weden, 135 Wn.2d at 693.
USCA Does Not Irreconcilably Conflict with the Ordinance
consider an ordinance to be consistent with article XI,
section 11 unless it either "prohibits what the state
law permits, " "thwarts the legislative purpose of
the statutory scheme, " or "exercises power that
the statutory scheme did not confer on local
governments." Dep't of Ecology v. Wahkiakum
County, 184 Wn.App. 372, 378, 337 P.3d 364 (2014).
Emerald argues that the Ordinance irreconcilably conflicts
with the UCSA for all three reasons, and is therefore
unconstitutional under article XI, section 11. We disagree.
Ordinance Does Not Prohibit What State Law Permits
contends that the Ordinance prohibits what the UCSA permits.
law "must yield" to a state statute on the same
subject matter if'"a conflict exists such that the
two cannot be harmonized.'" Weden, 135
Wn.2d at 693 (quoting Brown v. City of Yakima, 116
Wn.2d 556, 561, 807 P.2d 353 (1991)); WASH. CONST., art. XI,
§ 11. The focus of the inquiry is on the substantive
conduct proscribed by the two laws. For example,
Kirwin held that an ordinance may punish littering
more harshly than state law because both prohibit the same
underlying conduct. 165 Wn.2d at 826. No conflict exists
"if the provisions can be harmonized." Parkland
Light & Water Co. v. Tacoma-Pierce County Bd. of