This month’s column is all about guns and marijuana on port property.
Guns. As a retired Army officer and the father of an active-duty Army captain, I find it interesting that people want to carry guns around and in the open – seems like trouble waiting to happen. Now and again, I see a handgun on someone’s hip walking in downtown Bellingham. One port recounted a boater that consistently carries an AR-15 style assault rifle slung on his shoulder to and from his boat and presumably in town. The harbormaster regularly fielded calls from other concerned boaters. Over the years ports have considered adopting a “no firearms policy” for a marina, a park or other public area. However, Washington is an “open carry” state meaning it is legal for residents to carry a firearm in the open.
Pursuant to RCW 9.41.290, with limited exceptions, local governments are precluded from passing any ordinances or regulations involving firearms because the state of Washington has fully occupied and preempted “the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms.” Exceptions include limits on open carry in schools, bars, judicial facilities, public mental health facilities, stadiums and those parts of commercial service airports “designated in the airport security plan approved by the federal transportation security administration, including passenger screening checkpoints at or beyond the point at which a passenger initiates the screening process.” The law notes that the firearms preclusion area cannot include “airport drives, general parking areas and walkways, and shops and areas of the terminal that are outside the screening checkpoints and that are normally open to unscreened passengers or visitors to the airport.”
Interestingly, the Legislature last looked at this statute in 2021 when it added a prohibition against carrying a firearm within 250 feet of “permitted demonstration”, which is defined in the statute as a demonstration for which a permit has been issued by federal, state or local authorities. One can therefore conclude that “open carry” and preemption of any local restrictions still enjoys support in the Legislature.
Public employers, including ports, have the authority to prohibit public employees from carrying firearms while on duty. Public employers also may prohibit public employees while they are on duty from possessing firearms or other weapons on public employer’s property (including parking lots). Before adopting a firearms policy care should be taken to make sure this employment policy complies with the requirements of state law.
Marijuana. Now holster those weapons and let’s turn to marijuana. According to a recent report marijuana is big business Washington, one of eighteen states with laws that legalize, tax, and regulate cannabis for adults 21 and older. In Washington, a 37 percent excise tax is levied on the retail transaction price in addition to sales tax. According to the Washington State Treasurer, the state collected an estimated $473.9M in marijuana income and license fees in fiscal year 2020, including $4.8M in cannabis license fees. In fiscal year 2020, marijuana tax revenues were $229.4M more than that of liquor and grew by slightly more than $78M from the prior fiscal year – a 16.5% increase. Perhaps the revenue that flows to the state may have been one factor in the decision to designate marijuana retail sales outlets as “essential business” during COVID-19-related shutdowns.
Ports considering leases for marijuana businesses (growing, wholesale or retail) can rely on RCW 53.08.080 which allows ports to “lease all lands, wharves, docks and real and personal property owned and controlled by it, for such purposes and upon such terms as the port commission deems proper.” Marijuana is still a prohibited Schedule I substance under the federal Comprehensive Drug Abuse and Control Act of 1970, and while unlikely today, the federal government could always elect to enforce federal law without regard to Washington’s legalization. It is also difficult for those in the marijuana industry to engage in significant banking relationships. These issues may bear upon the business analysis of a port.
Port districts that receive federal contracts above $100,000 or receive federal grants should note that federal Drug Free Workplace Act of 1988 should be considered. Among other things, the law requires that the applicable state and local governments (including ports) maintain a “drug free workplace” for all employees. Lease requirements that require port employees to enter onto the marijuana business’ leasehold to perform maintenance should be carefully considered. On the other hand, a lease to a grower, producer or retailer without port employee maintenance requirements would not seem to necessarily violate the Drug Free Workplace Act of 1988. Several port districts operate FAA grant supported airports and rely on advertising revenue and retailer revenue inside the terminals. While advertising by marijuana retailers on an airport display screen would not seem to present an issue, a marijuana retailer at an FAA supported airport should be carefully considered. If you think a lease to a marijuana business may be controversial, a “best practice” is to have a very open and enhanced process to consider the lease. Where a normal lease might appear on an agenda as a matter of course, any controversial lease should be the subject of discussion in meetings before the actual lease is approved.
So, there we are – guns and marijuana – two interesting topics. As always, please contact your port counsel with any questions regarding these topics. And, if you have a particular question for a Knowing the Waters, please email me at fchmelik@chmelik.com.
