In both Colorado and Washington State cities have the power to ban marijuana businesses, and the United States has a long history with local option laws for alcohol. In total 33 states allow localities to be “dry” or “wet.” As a result, roughly a tenth of the country still has local bans on alcohol businesses.
Whether to have local option laws at all
Against – The main argument against letting localities ban marijuana businesses is that it undermines a top goal of legalization. If too many localities banned marijuana stores, that could make it harder for people to buy legal marijuana, which could leave an opening for an unregulated black market.
For – The top justifications for creating a local option are philosophical and political. There are some who philosophically argue decisions are best made at a local level when possible, and that people should have a larger say in shaping their community.
From a political perspective, giving cities the right to ban marijuana businesses could help build support for specific legalization legislation. Voters might be more inclined to support legalization –or at least not fight– if they don’t feel marijuana stores will be “forced” on their particular neighborhood. In addition, the current legalization movement risks looking hypocritical if they oppose local autonomy provisions, given that they are currently arguing legalization should be decided at the state level, not the federal level.
How the local option is written can be critical
Perhaps more important than whether or not there is a local option is how it is designed. There are several states with local option rules for alcohol but basically no dry counties. Any local option rule has two big parts.
Opt-in versus opt-out – The first is big component is whether it is an opt-in or an opt-out rule. For example, Kansas, Mississippi and Tennessee are dry by default. Each locality has to actively decide to allow alcohol sales. By comparison, most other states are wet by default and a locality must decide to go dry. This may seem like a minor technical point, but it tends to have a huge practical impact. People and organizations are lazy. The do-nothing option often wins. Simply going with the default is both much easier and spares politicians from having to go on the record with potentially controversial issues. Not surprisingly, these three “opt in” states have a significant number of dry counties.
Who gets to vote on the ban – The main ways decisions are made at the local level are by a vote of the local council/government, by the local council deciding to put a referendum on the ballot, or by local citizens gathering signatures to put an issue on the ballot.
When it comes marijuana reform, politicians have tended to be much more conservative than regular voters. As a result, if the power is put solely in the hands of local councils, you are likely to see more marijuana bans. For example, the Colorado Springs City Council voted to ban marijuana stores even though Amendment 64 was narrowly approved in the El Paso county, which is mostly Colorado Springs. If this ban had to go before the voters, there is a very good chance it would have been rejected.
Designing the pot local options is about what policy outcome you want
Personally, I think a local option for legal marijuana should technically exist but structured so that it’s difficult to use. I would have marijuana businesses allowed by default but give localities the option to ban marijuana stores only if that is what the local citizens directly vote for. This would produce the fewest bans but would still provide a viable form of local autonomy.
On the other hand, if your goal was to strictly limit marijuana store locations you could write the rules to require every local council to actively vote to allow marijuana businesses.
This may seem highly technical but the impact of this one provision will be huge. We are still living with the ramifications of how local option rules for alcohol were designed almost a century ago.
I explore how decision like this will shape the future of legal marijuana in greater depth in my book After Legalization: Understanding the future of marijuana policy