Washington Judge Upholds State Residency Requirement For Cannabis Industry
February 14, 2023Washington State’s requirement of state residency for anyone involved in the cannabis industry is aboveboard, according to a recent ruling by U.S. district judge Benjamin Settle. He ruled on a case concerning the ownership of cannabis retail locations. The co-owner of the chain Zips, Scott Atkinson, had sought to transfer part of his ownership stake to a friend in Idaho, Todd Brinkmeyer, due to health concerns. Brinkmeyer did not plan to relocate to Washington, where owners and investors in the cannabis industry must have lived for at least six months to be eligible.
Brinkmeyer sued the Washington Liquor and Cannabis Board in 2020 on the grounds that the residency requirement violated the constitutional stipulation that interstate commerce falls into the federal purview of Congress and discriminated against him as an out-of-state resident.
In his ruling, Settle found no conflict between the residency requirements and interstate commerce because federal cannabis prohibition precludes interstate commerce in the industry. “Although Washington’s ‘legalization’ of cannabis certainly does not align with Congress’s intent, the residency requirements do,” Settle wrote. “The residency requirements attempt to prevent any interstate commerce in cannabis and to prevent cannabis from Washington from moving into states where it remains illegal, like Idaho.” He also found that Washington was not discriminating against Brinkmeyer as an out-of-state resident under the Constitution’s Privileges and Immunities Clause because “it has never been established that there is any right … to engage in illegal commerce.”
The ruling sets up a showdown on the matter. It breaks from the decision issued by a federal judge in Maine last year which struck down residency requirements for that state’s medical marijuana program, arguing that the legality of interstate commerce was beside the point and its mere existence was enough to make it the responsibility of Congress. Brinkmeyer and his counsel are considering an appeal.—Danny Sullivan
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