Petition for Writ of Certiorari — Libby Haines-Marchel, Petitioner v. Washington State Liquor and Cannabis Board

Supreme Court briefNov 2, 2018

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MTDEC 18 AH 8:49

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

LIBBY HAINES-MARCHEL and ROCK ) No. 75669-9-1

ISLAND CHRONICS, LLC, Dba )

CHRONICS, )

)

Appellants, )

)

ve ) PUBLISHED OPINION

} .

WASHINGTON STATE LIQUOR & )

CANNABIS BOARD, an Agency of the}

Staie of Washington, )

)

Respondent. ) FILED: December 18, 2017

SCHINDLER, J. — In 2012, Washington voiers approved Initiative Measure 502,

LAWS OF 2013, ch. 3, codified as part of chapter 69.50 RCW. Initiative 502 legalizes the

Possession and sale of marijuana and creates a system for the distribution and sale of

recreational marijuana. Under RCW 69.50.325(3)(a), a retail marijuana license shail be

issued only in the name of the applicant. No retail marijuana license shall be issued to

a limited tiability corporation unless all members are qualified to obtain a license. RCW

69.50.331(1)(b)(iii). The true party of interest of a limited liability company is “[al}ll

members and their spouses,”? Under RCW 69.50.331(1)(a), the Washington State

1 WAC 314-65-035(1).

APPENDIX A

No. 75669-9-l/2

Liquor and Cannabis Board (WSLCB) considers prior criminal conduct of the applicant?

Criminal history of eight or more points is grounds for denial of a retail marijuana license

application. The WSLCB denied the application of Rock Island Chronics LLC

(Chronics LLC) for a retail marijuana license based on the criminal history of the spouse

of the sole member of the limited liability company, Libby Haines-Marchel. Chronics

LLC and Haines-Marchel appeal the WSLCB decision to deny the application for a retail

marijuana license. We affirm.

Application fora Retail Marijuana License

The material facts are not in dispute. In 2013, Rock Island Chronics LLC

(Chronics LLC) submitted an application to the Washington State Liquor and Cannabis

Board (WSLCB) for a retail marijuana license in Douglas County. The application

identifies Libby Haines-Marchel as the sole member and manager of Chronics LLC with

a“100%” ownership interest. The application identifies Brock Marchel as her spouse.

The WSLCB determines the maximum number of retail marijuana locations for

each county. WAG 314-55-081(1). Ifthe number of applications exceeds the allotted

number, the WSLCB conducts a lottery. Former WAG 314-55-081(1) (2013).

RCW 69.50.331(1) states the WSLCB shall conduct an evaluation of the

application. The WSLCB may consider the criminal history of the applicant and has the

discretion to grant or deny the application for a marijuana license. RCW

69.50,.331(1)(a). if the application “is disqualified for any reason,” the WSLCB will issue

a notice of intent to deny and “the next application on the lottery list will take its place.”

2 We note the legislature amended chapter 69.50 RCW and chapter 314-55 WAC after 2013.

Unless otherwise noted, because the language pertinent to our analysts has not changed, we cite the

current statutes and regulations throughout the opinion.

I WAG 314-55-040(1).

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On May 1, 2014, the WSLCB notified Chronics LLC that following the lottery for

Douglas County, its application was “selected number 1."* The letter states, in pertinent

part:

Your application was selected number 1.

We will begin processing applications for the allotted number of stores in

the coming weeks. If an application is disqualified for any reason or

withdrawn by the applicant, the next application on the lottery list will take

its place. If an application appears to not qualify, a statement of Intent to

Deny will be issued with the right to appeal that decision. Once all

licenses have been issued in a jurisdiction the remaining applications will

be administratively closed.

Applicants setected in the lottery to move forward in the licensing process

are not guaranteed to receive a license. The application must undergo

our rigorous investigation process and pass a final inspection prior to

issuance.

Under RCW 69.50.331(1)(b)(iii), “[n]o license of any kind may be issued to” a

corporation “unless ail of the members thereof are qualified to obtain a license.” WAC

314-55-035 identifies “What persons or entities have to qualify for a marijuana license."®

WAC 314-55-035(1) defines the true parties of interest for a limited fiability company as

“fa]ll members and their spouses” and “[ajil managers and their spouses.” Because the

“marijuana license must be issued in the name(s) of the true party(ies) of interest,”

Chronics LLC had to submit a “Personat/Criminal-History Form” for each member and

spouse of the limited liability company, WAC 314-55-020(6)(a), -035(1).

On December 2, 2014, WSLCB License Investigator Tim Lynch met with Haines-

Marchel, For the first time, Haines-Marche! “disclosed that her spouse, Brock Marchel,

4 Boldface omitted.

5 Boldface in original.

® Boldface omitted.

No. 75669-9-1/4

is currently incarcerated.” Haines-Marchel told Lynch that she “was hoping the power of

attorney she holds will allow her to complete the documents for him.”

WAC 314-55-040 addresses consideration of criminal history for a retail

marijuana license. WAC 314-55-040(1) uses a “point system” to determine if criminal

history prevents issuance of a retail marijuana license. Under WAC 314-55-040(1), a

felony conviction is 12 points. Felony convictions remain in effect for 10 years. WAC

314-55-040(1). The WSLCB will not issue a retail marijuana license if an applicant has

“accumulated eight or more points.” WAC 314-55-040(1).

Lynch asked Haines-Marchel to provide “more information on the incarceration

(the circumstances behind the incarceration and when Brock may be released).” On

December 11, Lynch sent an e-mail to Haines-Marchel “regarding the requirement for

her husband to complete his own documents’—the Personal/Criminal History Form. In

response, Haines-Marchel stated her spouse is incarcerated “for a homicide” and “is

serving a 44 % year" sentence.? On December 15, Haines-Marchel sent an e-mail to

Lynch and attached a copy of a “Spousal Renunciation of Rights Affidavit” dated July 3,

2014. The December 15 e-mail states, in pertinent part:

My husband is currently incarcerated for a homicide charge and is serving

a 44-1/2 year sentence with an ERD (earliest possible release date) of

2038. The board knows of my situation however | want to make you of

{sic] aware that my husband has relinquished all community rights to

property pursuant to RCW 26.16.050 which states “a spouse mfaly give

grant sell or convey directly to the other his or her community right title

interest and all or any portion of their community real property[.]” [Mly

husband has no community property interest in this business and is not a

true party of interest. | have attached my husband's Spousal

Renunciation of Rights Affidavit.

The Spousal Renunciation of Rights Affidavit states Brock “will relinquish, irrevocably

7 The record does not indicate when the felony conviction occurred.

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deny and renounce any and ‘al!’ ownership interest and management decisions in Rock

isiand Chronics.”

On December 15, Lynch forwarded his report to the WSLCB Marijuana Licensing

and Regulation Division (Licensing Division). The comment portion of the report states:

The applicant is currently married to Brock Marchel who according to the

applicant is serving time in prison for a homicide conviction. The

conviction is a felony that holds a 44% year term. Although the spouse

would like to give all rights to the business over to his wife [WAC] 314-55-

035 requires that ail true parties of interest have to qualify for a licenses

[sic}.

[WAC] 314-55-040 — what criminal history might prevent a marijuana

license applicant from receiving or keeping a marijuana license.

“Felony conviction["] - 12 points. Because the applicant did not complete

a criminal history form it is unclear what other conviction or charges he

may have.

Denial of Retail Marijuana License

On January 12, 2015, the Licensing Division sent Chronics LLC a “Statement of

Intent to Deny Marijuana License.” The “Summary of Relevant Facts” states, in

pertinent part:

2.2 {Haines-Marchel]'s spouse, Brock Marchel, is currently

incarcerated, serving a 44.5 year term for a homicide conviction.

Although the spouse would like to give all rights to the business

over to his wife, they remain married in the state of Washington.

WAC 314-55-035 requires that all true parties of interest must

qualify for a license.

The “Relevant Authority and Conclusions” cite RCW 69.50.331(1) and WAC 314-55-035

and -040(1) as “grounds for denial.”

3.1. The conduct outlined in paragraph 2.2 constitutes grounds for

denial of the marijuana license application under the provisions of

RCW 69.50.331(1) for the purpose of reviewing any application for

a license and for considering the denial, suspension, revocation or

No. 75669-9-1/6

renewal or denial thereof, of any license, the state liquor contro!

board may consider any prior criminal conduct of the applicant.

3.2 The conduct outlined in paragraph 2.2 also constitutes grounds for

denial under the provisions of WAC 314-685-035 and WAC 314-55-

3.3 Pereevaphs 3.1 through 3.2 above each establish a separate and

independently sufficient basis for denial.

Administrative Appeal

Chronics LLC filed an administrative appeal of the Intent to Deny Marijuana

License application and a motion for summary judgment. Chronics LLC argued that

because Brock Marchel disclaimed any interest in the limited liability company, Haines-

Marchet was the only true party of interest under WAC 314-55-035, Chronics LLC

asserted the Spousal Renunciation of Rights Affidavit “changed community property to

separate property solely in [Haines-Marchel].” Chronics LLC also argued denial of the

license application infringed on the constitutional right of Haines-Marchel to work and

eam a living and violated state law on “[mJarital status discrimination in employment.”

The Licensing Division filed a cross motion for summary judgment. The

Licensing Division asserted that under WAC 314-55-035 and -040, Brock Marchel

“remains a true party of interest" and does not “qualify because of his criminal history.”

The Licensing Division argued the true party of interest for a limited liability company is

not based on “a community property interest in the business.”

The administrative law judge (ALJ) affirmed the decision of the Licensing Division

to deny the application for a retail marijuana license.® The “Initial Order on Summary

Judgment Motion” sets forth the undisputed facts:

4.6. Chronics applied for a marijuana retailer license during the

application window.

® The ALJ ruled it did not have authority to address Haines-Marchel's argument that denial of the

application violated her constitutional liberty interest to work and be free of marital discrimination.

No. 75669-9-1/7

47. [The Licensing Division] required each applicant to submit a

Personal/Criminal History [Form],

4.8. Chronics is a limited liability company.

4.9. [The Licensing Division} required each member of a limited

liability company and the spouse of each member to submit a

Personal/Criminal History [Form].

4.10. Chronics's only member is Libby Haines-Marchel.

4.11. Ms. Haines-Marchel is married to Brock Marchel.

4.12, During the initial interview, Ms. Haines-Marchel disclosed

that Mr. Marchel is incarcerated. [The Licensing Division] sought

more information from her. Ms. Haines-Marchel subsequently advised

{the Licensing Division] that Mr. Marchel is serving a 44.5-year term

for a homicide conviction and will be released no earlier than 2038.

4.13. On or about June 15, 2014, Mr. Marchel signed a Spousal

Renunciation of Rights Affidavit, whereby he irrevocably relinquished

any ownership or management interest in and any rights to profits

from Chronics, and renounced any community property interest in

Chronics that might otherwise be attributed to him.

4,14, Mr. Marchel did not submit a Personal/Criminal History

[Form] nor did he provide a copy of his fingerprints. Therefore, [the

Licensing Division] was unable to determine whether he had any

criminal history in addition to his homicide conviction. [The Licensing

Division] assigned to Mr. Marche! 12 criminal history points for the

homicide conviction.

4.15. As a result of the 12 criminal history points assigned to Mr.

Marchel and consequently attributed to Chronics, [the Licensing

Division] denied Chronics’s application for a marijuana retailer license.

The conclusions of law state, in pertinent part:

§.12. (The Licensing Division] may investigate and consider

criminal history when determining whether to grant an applicant a

license, RCW 69.50.331(1); WAC 314-55-020f(6)].

5.13. “A marijuana license must be issued in the name(s) of the

true party(ies) of interest.” WAC 314-55-035.

No. 75669-9-1/8

5.14. For the purposes of Title 314 WAC, when the “true party of

interest’ is a limited liabitity company, the “persons to be qualified” are

“all members and their spouses”. WAC 314-55-035(1). In other

words, the criminal history of both member and spouse are attributed

to the limited liability company. Here, Ms. Haines-Marchel is the only

member of Chronics, a limited liability company. Mr. Marchel is her

spouse. Therefore, he must qualify, or put another way, if his criminal

history disqualifies him, it disqualifies Chronics.

§.15. Chronics argued that [the Licensing Division] is interfering

with community property law. But the regulation specifically limits its

definition of “true party of interest” to Title 314 WAC. Title 314 WAC

addresses {the Licensing Division]'s regulation of tobacco, liquor, and

marijuana. It does not address property rights, much less the

regulation, definition, or application of property rights. Thus, WAC

3144-65-035(1} does not clash with community property law.

5.16. Chronics argued that Mr. Marchel disclaimed any and all

property rights, interest, and control as to Chronics. However, the

definition of “true party.of interest", or perhaps more correctly “persons

to be qualified" is based upon the relationship of the individual! to

either the limited liability company or a member of the limited liability

company. [thas nothing to do with property rights, interest, or control.

Further, “true party of interest" is specifically distinguishable from

“financiers” (WAC 314-55-035(3)) and “persons who exercise control

of business” (WAC 314-55-035(4)). Accosdingly, that Mr. Marchel

disclaimed any and all property rights, interest, and control as to

Chronics is not relevant.

5.17. Therefore, for the purposes of Title 314 [WAC] and for the

purposes of Chronics qualifying for licensure, Mr. Marchel is a “true

party of interest” and a “person to be qualified” and his criminal history

must not disqualify him from licensure.

5.18. Mr. Marchel’s failure to meet the criminal history standards

outlinefd] in WAC 314-55-040 constitutes a basis for [the Licensing

Division] to deny Chronics’s marijuana license application. WAC 314-

55-050(4).

5.19. More specifically, a criminal history accumulating eight or

more points as described in WAG 314-55-040(1) is grounds for

denying a marijuana license application. WAC 314-55-040(1), (3).

§.20. Here, Mr. Marchel is serving time for a felony conviction. A

current felony conviction is assigned 12 criminal history point[s]. WAC

314-55-040(1), So, Mr. Marchel’s criminal history points are 12.

No. 75669-9-1/9

Moreover, this conviction is not subject to the exceptions expressed in

WAC 314-55-040(3). Further, Mr. Marchel has never submitted a

criminal history [form] or submitted to [a Licensing Division]

investigation of the criminal history. He may have additional criminal

history points for conduct of which [the Licensing Division] is unaware.

[The Licensing Division] will not normally issue a ficense to an

applicant with eight or more criminal history points. WAC 314-55-

040(1). :

5.21. Here, by virtue of Mr. Marchel’s criminal history points,

Chronics exceeds the regulatory threshold for a negative criminal

history and its application should be denied.

Chronics LLC filed a petition for review with the WSLCB. The petition asserts the

Licensing Division exceeded its statutory authority by denying the application of

Chronics LLC and violated the procedural due process rights of Haines-Marchei.

The WSLCB affirmed the ALJ decision and entered a “Final Order” adopting the

Initial Order on Summary Judgment. The Final Order states, in pertinent part:

The Licensing Division of the Liquor and Cannabis Board issued a

Statement of Intent to Deny Marijuana License dated January 12, 2015,

asserting that the Applicant’s spouse, Brock Marchel, is currently

incarcerated, serving a 44.5 year term for a homicide conviction. Although

the Applicant's spouse has offered to disavow any interest in the business

or proceeds from it, the Applicant and her spouse remain married in the

state of Washington. WAC 314-55-035 requires that all true parties of

interest must qualify for a license. Mr. Marchel's criminal history makes

him ineligible for a marijuana license. In addition, he has not completed

the personal/criminal history portion of the application, thus the Board has

been unable to determine whether he may have additional disqualifying

criminal history.

... [T]he Administrative Law Judge’s Initial Order on Summary

Judgment Motion: Denying Applicant's Motion for Summary Judgment

and Granting Agency's Cross Motion for Summary Judgment is

AFFIRMED and adopted as the Final Order of the Board.

No. 75669-9-1/10

Superior Court Appeal

Chronics LLC and Haines-Marchel filed a petition for review in superior court

under the Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW,

citing RCW 34.05.570(3) and (2)(c).

RCW 34.05.570(3) provides, in pertinent part:

Review of agency orders in adjudicative proceedings. The court shall

grant relief from an agency order in an adjudicative proceeding only if it

determines that:

(a) The order, or the statute or rule on which the order is based, is

in violation of constitutional provisions on its face or as applied;

(b) The order is outside the statutory authority or jurisdiction of the

agency conferred by any provision of law;

(d) The agency has erroneously interpreted or applied the law, [or}

() ‘The order is arbitrary or capricious.

RCW 34.05.570(2)(c) states, in pertinent part:

In a proceeding involving review of a rule, the court shall declare the rule

invalid only if it finds that: The rule violates constitutional provisions; the

rule exceeds the statutory authority of the agency; [or] the rule was

adopted without compliance with statutory rule-making procedures.

The petition alleged that under RCW 34.05.570(3), denial of the retail marijuana

license unconstitutionally infringed on Haines-Marchel's fundamental right to marry and

to pursue a “profession or occupation” and deprived her of a property interest without

due process. The petition alleged that under RCW 34.05.570(2)(c), the WSLCB

adoption of WAC 314-55-035 and -040 exceeded its statutory authority.

The superior court affirmed the WSLCB Final Order. The court concluded WAC

314-55-035 and -040 were “a narrowly tailored means to further the State's compelling

interest’ in closely regulating the sale of marijuana and “screening out criminal

No. 75669-9-1/11

involvement in the marijuana industry."° The court concluded the question of whether a

license to sell marijuana is a property right subject to due process is “moot because

Petitioner was never granted a retail marijuana license.”

The court ruled the WSLCB had the statutory authority to adopt WAC 314-55-035

and -040.

WAC 314-55-035 requires that when a marijuana license is issued to a

limited liability company, members’ spouses be included as true parties of

interest.

... Under WAC 314-55-035, Ms. Haines-Marchel and Mr. Marche

were both true parties of interest in Petitioner's retail marijuana license

application and both were required to qualify to hold such a license.

... WAC 314-55-035 and -040 act to screen out the involvement of

criminais in the marijuana industry.

... Under WAC 314-55-040, Mr. Marchel’s criminal history

excluded him from qualifying to hoid a retail marijuana license.

... WAC 314-55-035 and -040 are within the scope and intent of

Initiative Measure 502, which gave the Board broad authority to take

marijuana out of the hands of criminals and bring marijuana under a tightly

regulated, state-licensed system, and RCW 69.50.342, which empowers

the Board to adopt rules it deems necessary and advisable to accomplish

the purposes of and are not inconsistent with the spirit of Chapter 3, Laws

of 2013.

Standard of Review

Chronics LLC and Haines-Marchet appeal the superior court order. WAPA

governs review of the final administrative decision and the validity of an agency rule.

Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993); Ass’n of Wash.

® The court found, in pertinent part:

The State of Washington has a compelling interest in closely regulating the sale of

marijuana in order to (1) keep the marijuana industry out of the hands of criminals, (2)

prevent revenue from the marijuana industry from being used to support criminal

enterprises, (3) stop marljuana businesses from being used as a cover for illegal

activities, (4) prevent the use of a qualified spouse as a “straw person’ to disguise an

unqualified spouse's true interest in the marijuana business, and (5) comply with the

expectations and interests of the United States Department of Justice in ensuring public

safety.

No. 75669-9-1/12

Spirits & Wine Distribs. v. Wash, Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849

(2015).

When reviewing a final administrative decision, this court “sits in the same

position as the superior court, applying the standards of the WAPA directly to the record

before the agency.” Tapper, 122 Wn.2d at 402; Brown v. Dep't of Commerce, 184

Wn.2d 509, 544, 359 P.3d 771 (2015). This court sits in the same position as the

superior court and we do not give deference to the superior court's rulings. Verizon

Nw., Inc. v. Emp’t Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008). We review

constitutional issues de novo and are not bound by the trial court’s conclusions of law.

Spirits & Wine, 182 Wn.2d at 350; Utter v. Dep't of Soc. & Health Servs., 140 Wn. App.

293, 300, 165 P.3d 399 (2007). Under RCW 34.05.570(3), we determine only whether

the administrative order is unconstitutional, outside the agency's statutory authority, the

agency has erroneously applied the law, or the decision is arbitrary and capricious.

Ames v. Dep’t of Health, Med. Quality Assur. Comm'n, 166 Wn.2d 255, 260, 208 P.3d

549 (2009).

Under RCW 34.05.570(2)(c), an agency rule may be invalidated only if itis

unconstitutional, exceeds the agency's statutory rule-making authority, or is arbitrary

and capricious. If the administrative decision is on summary judgment, we overlay the

WAPA standard of review with the summary judgment standard. Verizon, 164 Wn.2d at

916. “Summary judgment is appropriate only where the undisputed facts entitle the

moving party to judgment as a matter of law.” Verizon, 164 Wn.2d at 916. The moving

party bears the burden of demonstrating the invalidity of the denial. RCW

34.05.570(1)(a).

No. 75669-9-1/13

Reguiation of Marijuana

In 1928, the legislature enacted a criminal statute making possession and sale of

narcotics unlawful. Laws OF 1923, ch. 47, § 3; State v, Bradshaw, 152 Wn.2d 528, 532,

98 P.3d 1490 (2004). The statute defined “narcotic drugs” as opiates, cocaine, and

marijuana, LAws OF 1923, ch. 47, § 2.

in 1970, Congress passed the “Comprehensive Drug Abuse Prevention and

Control Act of 1970," known as the Controlled Substances Act (CSA), 21 U.S.C. §§

801-904. “The main objectives of the CSA were to conquer drug abuse and to controi

the legitimate and illegitimate traffic in controlled substances.” Gonzales v. Raich, 545

U.S. 1, 12, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). The CSA classifies marijuana as a

“Schedule |” controlled substance. 21 U.S.C. §§ 802(6), 812(c)(Schedule 1)(c)(10).

Under the CSA, it is “unlawful for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,

or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1); see also Gonzales, 545

U.S. at 14; United States v. Qakland Cannabis Buyers’ Co-op, 532 U.S. 483, 489-90,

421 S. Ct. 1741, 149 L. Ed. 2d 722 (2001). The sale of marijuana is a felony under

federal law. 21 U.S.C. §§ 841(a)(1)(0), (O)(A)(A){vii), (0)(1)(B) (vil), (6)(1)(D); 18 U.S.C.

§§ 3559(a){3)-(5).

In 1971, Washington adopted the Uniform Controlled Substances Act, chapter

69.50 RCW. Laws oF 1971, Ist Ex. Sess., ch. 308. The Uniform Controlled

Substances Act paralleled the CSA. Seeley v. State, 132 Wn.2d 776, 790-91, 940 P.2d

604 (1997). Under the Uniform Controlled Substances Act, it was a crime to

“manufacture, deliver, or possess with intent to manufacture or deliver” marijuana.

1 Pub. L. No. 91-513, 84 Stat. 1236 (1970).

No. 75669-9-1/14

Former RCW 69,50.401(a)(1)(i), .204(d)(10) (1971); Cannabis Action Coal. v. City of

Kent, 183 Wn.2d 219, 222, 351 P.3d 151 (2015).

In 1998, Washington voters approved Initiative Measure 692 legalizing the

medical use of marijuana, Laws oF 1999, ch, 2.

Initiative 502

In November 2012, Washington voters approved Initiative Measure 502. Laws

OF 2013, ch. 3, codified as part of chapter 69.50 RCW. Initiative 502 legalizes the

possession of small quantities of marijuana for individuals over 21 years old"! and

authorizes regulation and a “system for the licensed distribution of recreational

marijuana.” Cannabis Action Coal., 183 Wn.2d at 222-23; No on 1-502 v. Wash.

NORML, 193 Wn. App. 368, 370, 372 P.3d 160 (2016). A stated purpose of Initiative

502 is to take “marijuana out of the hands of illegal drug organizations and bring] ] it

under a tightly regulated, state-licensed system similar to that for controlling hard

alcohol.” LAWS OF 2013, ch. 3, § 1. The Laws of 2013, chapter 3, section 1 state:

The people intend to stop treating adult marijuana use as a crime and try a

new approach that:

(1) Allows law enforcement resources to be focused on violent and

property crimes;

(2) Generates new state and local tax revenue for education,

heaith care, research, and substance abuse prevention; and

(3) Takes marijuana out of the hands of illega! drug organizations

and brings it under a tightly regulated, state-licensed system similiar to that

for controlling hard alcohol.

This measure authorizes the state liquor control board to regulate

and tax marijuana for persons twenty-one years of age and older, and add

@ new threshold for driving under the influence of marijuana.

Consistent with Initiative 502, RCW 69.50.360 states, in pertinent part:

The following acts, when performed by a validly licensed marijuana retaiter

or employee of a vaiidly licensed retail outlet in compliance with rules

1 ROW 69.50.4013(3}(a).

No. 75669-9-1/15

adopted by the state liquor and cannabis board to implement and enforce

chapter 3, Laws of 2013, do not constitute criminal or civil offenses under

Washington state law:

(1) Purchase and receipt of marijuana concentrates, useable

marijuana, or marijuana-infused products that have been properly

packaged and labeled from a marijuana processor validly licensed under

this chapter;

(3) Delivery, distribution, and sale, on the premises of the retail

outlet, of any combination of the following amounts of marijuana

concentrates, useable marijuana, or marjjuana-infused product to any

person twenty-one years of age or older:

(a) One ounce of useable marijuana;

(b) Sixteen ounces of marijuana-infused product in solid form; [or}

Initiative 502 is codified as part of chapter 69.50 RCW. RCW 69.50.325(3)(a)

states, “Every marijuana retailer's license shall be issued in the name of the applicant.”

RCW 69.50.331(1)(b)(ii) states, “No license of any kind may be issued to . . . [a]

parinership, employee cooperative, association, nonprofit corporation, or corporation

_... unless all of the members thereof are qualified to obtain a license as provided in this

section.” RCW 69.50.325(3)(a) states, in pertinent part:

There shail be a marijuana retailer's license to sell marijuana

concentrates, useable marijuana, and marijuana-infused products at retail

in retail outlets, regulated by the state liquor and cannabis board and

subject to annual renewal. The possession, delivery, distribution, and sale

of marijuana concentrates, useable marijuana, and marijuana-infused

products in accordance with the provisions of this chapter and the rules

adopted fo implement and enforce it, by a validly licensed marijuana

retailer, shall not be a criminal or civil offense under Washington state law.

Every marijuana retailer's license shall be issued in the name of the

applicant, shall specify the location of the retail outlet the licensee intends

to operate, which must be within the state of Washington, and the holder

thereof shall not allow any other person to use the license.

" RCW 69.50.331(1)(a) expressly states that “[s]ubject to the provisions of this

section, the state liquor and cannabis board may, in its discretion, grant or deny the . . .

license applied for.” RCW 69.50.331(1)(a) states the WSLCB “may consider any prior

No. 75669-9-1/16

criminal conduct of the applicant” in determining whether to deny an application for a

license. RCW 69.50.331(1)(a) states, in pertinent part:

For the purpose of reviewing any application for a license and for

considering the denial, suspension, revocation, or renewal or denial

thereof, of any license, the state liquor and cannabis board may consider

any prior criminal conduct of the applicant including an administrative

violation history record with the state liquor and cannabis board and a

criminal history record information check. The state liquor and cannabis

board may submit the criminal history record information check to the

Washington state patrol and to the identification division of the federal

bureau of investigation in order that these agencies may search their

records for prior arrests and convictions of the individual or individuals

who filled out the forms.

The legislature authorizes the WSLCB to adopt regulations and a system to

implement Initiative 502 and legalize issuance of a retail marijuana license. RCW

69.50.342(1). RCW 69,50.342(1) gives the WSLCB broad authority to adopt rules that

are “not inconsistent with the spirit of chapter 3, Laws of 2013 as are deemed necessary

or advisable.”

Adoption of Chapter 314-55 WAC

The WSLCB adopted rules in November 2013. WAC 314-55-005 (Wash. St.

Reg. 13-21-104, filed Oct. 21, 2013, effective Nov. 21, 2013). Chapter 314-55 WAC

governs the requirements for a retail marijuana license. WAC 314-55-010(1) defines a

“marijuana license applicant” as “any person or business entity who is considered by the

WSLCB as a true party of interest in a marijuana license, as outlined in WAC 314-55-

035.” A "marijuana licensee’ is “any person or entity that holds a marijuana license, or

any person or entity who is a true party of interest in a marijuana license, as outlined in

WAG 314-55-035." WAC 314-55-010(15).

No. 75669-9-1/17

If the applicant meets the minimum requirements for a retail marijuana license,

the Licensing Division conducts a comprehensive investigation to verify “the true

party(ies) of interest,” including criminal history based on submission of a

Personat/Criminal History Form. WAC 314-55-020(5)-(7). WAC 314-55-020 states, in

pertinent part:

WAC 314-55-020 Marijuana license qualifications and

application process. Each marijuana license application is unique and

investigated individually. The WSLCB may inquire and request

documents regarding all matters in connection with the marijuana license

application. .. .

(5) The WSLCB will verify that the proposed business meets the

minimum requirements for the type of marijuana license requested.

(6) The WSLCB will conduct an investigation of the applicants’

criminal history and administrative violation history, per WAC 314-55-040

and 314-55-045,("2]

(a) The criminal history background check will consist of

completion of a personal/criminal history form provided by the WSLCB

and submission of fingerprints to a vendor approved by the WSLCB....

(7) The WSLCB will conduct a financial investigation in order to

verify the source of funds used for the acquisition and startup of the

business, the applicants’ right to the real and personal property, and to

verify the true party(ies) of interest.!"3)

WAC 314-55-035 identifies “What persons or entities have to qualify for a

marijuana license.”""4 WAC 314-55-035 states, “A marijuana license must be issued in

the name(s) of the true party(ies) of interest.” WAC 314-55-035(1) defines “true party of

12 WAC 314-55-045 identifies “What marijuana law or rule violation history might prevent an

applicant fram receiving a marijuana license.” (Boldface omitted.)

13 Boldface in original.

“4 Boldface omitted.

No. 75669-9-1/18

interest” and the persons who must qualify. WAC 314-55-035(1) states:

True parties of interest - For purposes of this title, “true party of interest”

means:

True party of interest

Persons to be qualified

Sole proprietorship

Sole proprietor and spouse.

General partnership

Alt partners and spouses.

Limited partnership, limited liability

partnership, or limited liability

limited partnership

* All general partners and their

spouses.

* Alltimited partners and their

spouses.

Limited liability company

° Allmembers and their

spouses.

° Allmanagers and their

spouses.

Privately held corporation

* Ail corporate officers (or

persons with equivalent title)

and their spouses.

* All stockholders and their

spouses.

Publicly held corporation

All corporate officers (or persons

with equivalent title) and their

spouses.

All stockholders and their

spouses.

Multilevel ownership structures

All persons and entities that make

up the ownership structure (and

their spouses).

Any entity or person (inclusive of

financiers) that are expecting a

percentage of the profits in

exchange for a monetary loan or

expertise. Financial institutions

are not considered true parties of

interest.

Any entity or person who is in

receipt of, or has the right to

receive, a percentage of the

grass or net profit from the

licensed business during any full

or partial calendar or fiscal year.

Any entity or person who

exercises control over the

licensed business in exchange for

money or expertise.

For the purposes of this chapter:

¢ “Gross profit” includes the

entire gross receipts from all

No. 75669-9-1/19

sales and services made in,

upon, or from the licensed

business.

+ “Net profit? means gross

sales minus cost of goods

sold.

Nonprofit corporations All individuals and spouses, and

entities having membership rights

in accordance with the provisions

of the articles of incorporation or

the bylaws.'51

WAC 314-55-040 addresses “What criminal history might prevent a marijuana

license applicant from receiving or keeping a marijuana license." WAC 314-55-040(1)

states, in pertinent part:

The WSLCB will not normally issue a marijuana license or renew a license

to an applicant who has accumulated eight or more points as indicated

below:

Time period during

which points will be Points

Description assigned assigned

Felony conviction Ten years 12 points

Gross misdemeanor Three years 5 points

conviction

Misdemeanor conviction Three Years 4 points

Currently under federal or | n/a 8 points

state supervision for a

felony conviction

Nondisclosure of any of the | n/a 4 points

above each]

Constitutional Right to Marry and Contract

Chronies LLC and Haines-Marchel contend WAC 314-55-035 violates her

constitutional right to marry and the decision to deny the retail marijuana license violates

her right to contract.

18 Boldface in original.

16 Boldface omitted.

1? Boldface in original.

No. 75669-9-1/20

We review constitutional issues de novo as a matter of law. Spirits & Wine, 182

Wn.2d at 350. We presume an agency's regulations are constitutional. Campbell v.

Tacoma Pub. Sch, Dist. No. 10, 192 Wn. App. 874, 883, 370 P.3d 33 (2016); Wash.

Hosp. Ass'n v. Dep't of Health, 183 Wn.2d 590, 595, 353 P.3d 1285 (2015).

Where, as here, the legislature specifically delegates rule-making power to an

agency, the regulations are presumed valid. Anderson, Leech & Morse, Inc. v. Wash.

Liquor Control Bd., 89 Wn.2d 688, 695, 575 P.2d 221 (1978); St. Francis Extended

Health Care v. Dep't of Soc. & Health Servs., 115 Wn.2d 690, 702, 801 P.2d 212

(1990). A party may assert either a facial or an as-applied challenge to a regulation.

To prevail on a facial challenge, the party must show “no set of circumstances”

where the regulation “as currently written . .. can be constitutionally applied.” City of

Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004). To prevail on an asapplied challenge, the party must prove an otherwise valid regulation is unconstitutional

as applied to that individual. Moore, 151 Wn.2d at 668-69.

Chronics LLC and Haines-Marchel do not assert a facial challenge to WAC 314-

55-035. Haines-Marchel contends that as applied, WAC 314-55-035 violates her

constitutional right to marry. In an as-applied challenge, the party alleges the regulation

is unconstitutional ‘in the specific context of the party's actions or intended actions.”

Moore, 151 Wn.2d at 668-69; City of Seattle v. Evans, 184 Wn.2d 856, 862, 366 P.3d

906 (2015).

The right to marry is a fundamental substantive due process right under the

Fourteenth Amendment to the United States Constitution. Obergefell v. Hodges, ___

U.S. __, 135 S. Ct. 2584, 2597-98, 192 L. Ed. 2d 609 (2015); Zablocki v. Redhail, 434

No. 75669-9-1/21

U.S. 374, 383, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978); Loving v. Virginia, 388 U.S. 1, 12,

87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); City of Bremerton v. Widell, 146 Wn.2d 561,

575-76, 51 P.3d 733 (2002). But not “every state regulation which relates in any way to

the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.”

Zablocki, 434 U.S. at 386; Parsons v. County of Del Norte, 728 F.2d 1234, 1237 (9th

Cir. 1984).

We apply a two-part test to determine whether state action unconstitutionally

infringes on the right of marriage. Widell, 146 Wn.2d at 579. First, “'a court must ask

whether the poficy or action is a direct or substantial interference with the right of

marriage.’ ” Widell, 146 Wn.2d at 579 (quoting Montgomery v. Garr, 101 F.3d 1117,

1124 (6th Cir. 1996)). “ ‘[I]f the policy or action is a direct and substantial interference

with the right of marriage,’ ” strict scrutiny applies. Widell, 146 Wn.2d at 579 (quoting

Carr, 101 F.3d at 1124). Otherwise, we apply a " ‘rational basis scrutiny.’ Widell, 146

Whn.2d at 579 (quoting Carr, 101 F.3d at 1124); Parsons, 728 F.2d at 1237.

“[RJeasonable regulations that do not significantly interfere with decisions to enter into

the marital relationship may ‘egitimately be imposed.” Zablocki, 434 U.S. at 386; see

Califano v, Jobst, 434 U.S. 47, 54, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977).

Chronics LLG and Haines-Marchel assert denial of the application for a retail

marijuana license directly interferes with the right fo marry. Chronics LLC and Haines-

Marchel assert the decision was “solely based on her marriage to Brock.” The record

does not support this argument. The record establishes the WSLCB denied the

application of Chronics LLC because Brock is a true party of interest who did not qualify

for a retail marijuana license.

No. 75669-9-1/22

A retail marijuana license must be issued in the name of the applicant. Under

WAC 314-55-035(1), if the applicant is a limited liability company, all true parties of

interest must qualify. The true parties of interest for a limited fiability company are all

members and the spouses of each member. WAC 314-55-035(1). Because WAC 314-

55-035 does not interfere with the right of Haines-Marchel to marry or remain married to

the person of her choosing, it does not place a “direct and substantial” burden on the

right of marriage, and the rational basis test applies. Widell, 146 Wn.2d at 579-80.

Under the rational basis test, WAC 314-55-035 need only be “rationally related to

a legitimate state interest.” Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 222, 143 P.3d

577 (2006).

In determining whether a rational relationship exists, a court may assume

the existence of any necessary state of facts which it can reasonably

conceive in determining whether a rational relationship exists between the

challenged faw and a legitimate state interest.

Amunrud, 158 Wn.2d at 222; Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L.

Ed. 2d 257 (1993).

There is no dispute that the WSLCB has a legitimate interest in conducting a

comprehensive investigation to verify the true parties of interest and determine whether

criminal history disqualifies the applicant. See RCW 69.50.331(1)(b). Because WAC

_ 314-55-035 is rationally related to the legitimate interest of the State to legalize and

strictly control issuance of a retail marijuana license, Chronics LLC and Haines-Marchel

cannot show that as applied, WAC 314-55-035 is unconstitutional.

Levinson v. Horse Racing Commission, 48 Wn. App. 822, 740 P.2d 898 (1987),

is distinguishable. In Levinson, the Washington Horse Racing Commission suspended

a “racehorse ownership license” after learning the owner's spouse had a 12-year-old

No. 75669-9-I/23

narcotics conviction. Levinson, 48 Wn. App. at 823-24. Under former WAC 260-12-160

(1980), an individual convicted of selling narcotics was barred from horse racing.

Former WAC 260-40-160(3) (1961) stated, “[N]o entry [of a horse in a horse race] shall

be accepted from husband or wife, while either is disqualified.” The court concluded

former WAC 260-12-160 unconstitutionally infringed on Levinson's right to marry

because the regulation was “very sweeping” and applied to individuals “who many years

after their conviction still cannot attend racing events, and cannot get ownership

licenses." Levinson, 48 Wn. App. at 826. But here, unlike in Levinson, WAC 314-55-

040 does not categorically disqualify a true party of interest based on criminal history.

WAC 314-55-040(3) states:

The WSLCB may not issue a marijuana license to anyone who has

accumulated eight or more points as referenced above. This is a

discretionary threshold and it is further recommended that the following

exceptions to this standard be applied:

Exception to criminal history point assignment.

(a) Prior to initial license application, two federal or state

misdemeanor convictions for the possession only of marijuana within the

previous three years may not be applicable to the criminal history points

accumulated. All criminal history must be reporied on the

personal/criminal history form.

(i) Regardless of applicability, failure to disclose full criminal history

will result in point accumulation;

(ii) State misdemeanor possession convictions accrued after

December 6, 2013, exceeding the allowable amounts of marijuana, usable

marijuana, and marijuana-infused products described in chapter 69.50

RCW shali count toward criminal history point accumulation.

(b) Prior to initial license application, any single state or federal

conviction for the growing, possession, or sale of marijuana will be

considered for mitigation on an individual basis. Mitigation wilt be

considered based on the quantity of product involved and other

circumstances surrounding the conviction.""9)

The cases Haines-Marchel cites to argue denial of the application under WAC.

314-55-035 violates the Washington Law Against Discrimination, chapter 49.60 RCW,

18 Boldface in original.

No. 75669-9-1/24

are inapposite. Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 930 P.2d 307

(1997), and Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 859 P.2d

26, 865 P.2d 507 (1993), address claims filed under RCW 49.60.180 against former

employers for employment discrimination based on marital status. See RCW 49.60.180

(it is “unfair practice for any employer” to refuse to hire, to discharge, or to discriminate

against any person based on a number of protected categories, including “marital

status"). WAC 314-55-035 does not discriminate based on an individuat’s legal marital

status.

Chronics LLC and Haines-Marchel also claim denial of the application violated

the constitutional right of Haines-Marche! to contract by disregarding the Spousal

Renunciation of Rights Affidavit executed by Brack in determining whether Brock

qualified under WAG 314-55-035.

The Spousai Renunciation of Rights Affidavit states, in pertinent part:

{t is my intention to knowingly and willingly make this agreement

that | will relinquish, irrevocably deny and renounce any and ‘all’

ownership interest and management decisions in Rock Island Chronics.

itis also my understanding spouces [sic] may agree to change the

character of their property from community to separate property. This is

my intention. :

| agree to renounce and convey my rights in claiming to have a

right to the companies [sic] asset acquisition, profits, bank accounts, sales

revenue, or the profits she makes in the sale of the business as a whole.

[also agree to convey and renounce my rights within the color of

the law that the Washington State Liquor Control Board deems necessary

in this process.

We conclude the Spousal Renunciation of Rights Affidavit is not a binding

contract. “[U]nless both parties are bound by mutual promises or considerations,

neither is bound.” Lande v. S. Kitsap Sch, Dist. No. 402, 2 Wn. App. 468, 477, 469 P.2d

982 (1970); Larkins v. St. Paul & Tacoma Lumber Co., 35 Wn.2d 711, 722, 214 P.2d

No. 75669-9-1/25

700 (1950). Further, “[e]very contract must be supported by a consideration to be

enforceable.” King v. Riveland, 125 Wn.2d 500, 505, 886 P.2d 160 (1994); SAK &

Assocs. Inc. v. Ferguson Constr., Inc., 189 Wn. App. 405, 411, 357 P.3d 671 (2015).

“Consideration is a bargained-for exchange of promises” or“ ‘any act, forbearance,

creation, modification or destruction of a legal relationship, or return promise given in

exchange.” Labriola v. Pollard Grp., Inc., 152 Wn.2d 828, 833, 100 P.3d 791 (2004)

(quoting King, 125 Wn.2d at 505). The unilateral intent in the Spousal Renunciation of

Rights Affidavit to “relinquish, irrevocably deny and renounce any and ‘all’ ownership

interest and management decisions in Rock Island Chronics” is not a mutually binding

agreement supported by consideration.

Due Process Liberty and Property Interest

Haines-Marchel asserts that as applied, WAC 314-55-035 violates her right to

pursue an occupation. The right to pursue an occupation or profession is a protected

liberty interest. Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S. Ct. 1292, 143 L. Ed. 2d

399 (1999). The “Due Process Clause” of the Fourteenth Amendment “ ‘includes some

generalized due process right to choose one’s field of private employment.'” Amunrud,

158 Wn.2d at 220 (quoting Gonn, 526 U.S. at 291-92); Dittman v. California, 191 F.3d

1020, 1029 (8th Cir. 1999). But that right is “ ‘subject to reasonable government

regulation.’ ” Amunrud, 158 Wn.2d at 2207 (quoting Conn, 526 U.S. at 292). We apply

the rational basis test to regulations alleged to burden the right to employment.

Amwnrud, 158 Wn.2d at 222 (“Because the right to pursue a trade or profession is a

protected right but not a fundamental right, we apply a rational basis test.”); Johnson v.

Dep't of Fish & Wildlife, 175 Wn. App. 765, 775, 305 P.3d 1130 (2013). We conclude

18 Emphasis omitted.

No. 75669-9-1/26

WAC 314-55-035 and WAC 314-55-040 are rationally related to a legitimate state

interest and do not violate Haines-Marche'’s right to purse an occupation.

Haines-Marchel claims that because the WSLCB selected her application for

processing, she acquired a property right to issuance of a marijuana license, and denial

of the application violated due process.

To state a claim for deprivation of property without due process of law, a party

must identify a property interest protected by the Due Process Clause. Mathews v.

Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Bang Nguyen v.

Dep't of Health, Med. Quality Assur. Comm'n, 144 Wn.2d 516, 522-23, 29 P.3d 689

(2001).

Haines-Marchel relies on Wedges/Ledges of California, Inc. v. City of Phoenix,

Arizona, 24 F.3d 56 (9th Cir. 1994), to assert Chronics LLC had a property interest in

the issuance of a marijuana license. In Wedages/Ledges, the Phoenix City Code (PCC)

that stated a game license tag “ ‘shall be issued’ " to certain coin-operated game

machines made issuance of licenses mandatory and eliminated the city’s discretion to

deny licenses. Wedges/Ledages, 24 F.3d at 63 (quoting former PCC § 7-28(c)(1) (1986-

1987)). The court concluded the city code created a property interest in issuance of a

license because it was an “ ‘articulable standard’ sufficient to give rise to a legitimate

claim of entitlement.” Wedges/Ledges, 24 F.3d at 63-64 (quoting Parks v. Watson, 715

F.2d 646, 657 (9th Cir. 1983)). The court held, “[AJn individual has a reasonable

expectation of entitlement deriving from ‘existing rules or understandings that stem from

an independent source such as state law.’" Wedges/Ledges, 24 F.3d at 62 (quoting

No. 75669-9-/27

Bd. of Regents of State Colls. v. Roth, 408 U.S, 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d

548 (1972)).

Here, unlike in Wedges/Ledges, Haines-Marchel cannot show Chronics LLC had

@ legitimate claim of entitlement to’ ’ the issuance of a retail marijuana license. Town

of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S. Ct. 2796, 162 L. Ed. 2d

658 (2005) (quoting Roth, 408 U.S. at 577). The issuance of a marijuana license is not

mandatory. RCW 69.50.331 expressly gives the WSLCB discretion to deny an

application for a marijuana license. RCW 69.50.331(1)(a) states, in pertinent part, that

“[sJubject to the provisions of this section, the state liquor and cannabis board may, in its

discretion, grant or deny the .. . license applied for.” Further, the “issuance of any

license by the board shall not be construed as granting a vested right in any of the

privileges so conferred.” WAC 314-12-010; see also Jow Sin Quan v. Wash. Liquor

Controt Bd., 69 Wn.2d 373, 382, 418 P.2d 424 (1966) (license to sell intoxicants “does

not become a vested property right upon the issuance thereof"). A license is “a

temporary permit, in the nature of a privilege, to engage in a business that would

otherwise be unlawful.” Jow Sin Quan, 69 Wn.2d at 382; see also RCW 69.50.325(3).

Because Chronics LLC and Haines-Marchel do not have a property interest in

the issuance of a marijuana license, the WSLCB did not violate due process by denying

the application for a license.

Statutory Authority to Adopt WAC 314-55-035 and WAC 314-55-040

- Chronics LLC and Haines-Marche! cite RCW 34.05.570(2)(c) and RCW

34.05.570(3) to argue the WSLCB exceeded its statutory authority in adopting WAC

314-55-035 and WAC 314-55-040 and denying the application,

No. 75669-9-1/28

We review the validity of an agency's rule de novo. Local 2916, IAFF v. Pub.

Emp't Relations Comm'n, 128 Wn.2d 375, 379, 907 P.2d 1204 (1995). The validity of a

rule is governed by RCW 34.05.570(2)(c). We determine the extent of an administrative

agency's rule making authority de novo as a matter of law. Local 2916, 128 Wn.2d at

379; Spirits & Wine, 182 Wn.2d at 350; Wash. Hosp. Ass’n, 183 Wn.2d at 595. The

authority of an administrative agency is “ ‘limited to that which is expressly granted by

statute or necessarily implied therein.’ " Conway v. Dep't of Soc. & Health Servs., 131

Wn. App. 406, 419, 120 P.3d 130 (2005) (quoting McGuire v. State, 58 Wn. App. 195,

198, 781 P.2d 929 (1990)); Anderson, Leech & Morse, 89 Wn.2d at 694. A rule is

invalid if it conflicts with the intent and purpose of the legislation, exceeds the statutory

authority of the agency, or is arbitrary and capricious. RCW 34.05.570(2)(c). Under

RCW 34,05.570(2)(c), the court "shall declare the rule invalid” if it finds the rule exceeds

the statutory authority of the agency. “ ‘[RJegulation[s] will not be struck down unless

compelling reasons are presented sufficient to show the scheme is in conflict with the

intent and purpose of the legistation.’” Hi-Starr, Inc. v. Liquor Controt Bd., 106 Wn.2d

455, 459, 722 P.2d 808 (1986)?° (quoting Anderson, Leech & Morse, 89 Wn.2d at 695).

Where the legislature specifically delegates the power to adopt regulations, those

regulations are presumed to be valid. St. Francis, 115 Wn.2d at 702. “The burden of

overcoming this presumption rests on the challenger, and judicial review will be limited

to a determination of whether the regulation in question is reasonably consistent with

the statute being implemented.” St. Francis, 115 Wn.2d at 702. Because administrative

agencies are “ ‘creatures of the legislature without inherent or common-law powers,’ ”

an agency has only those powers that are conferred either expressly or by necessary

20 (Alterations in original) (internal quotation marks omitted).

No. 75669-9-1/29

implication. Human Rights Comm'n v. Cheney Sch. Dist. No. 30, 97 Wn.2d 118, 125,

641 P.2d 163 (1982) (quoting State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440

(#979)).

Statutory interpretation is a question of law we review de novo. W. Telepage

Inc. v. City of Tacoma Dep't of Fin., 140 Wn.2d 599, 607, 998 P.2d 884 (2000). Our

primary goal in interpreting statutes is to ascertain and give effect to legislative intent.

Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If

the statute's meaning is plain on its face, we give effect to that plain meaning.

Campbell & Gwinn, 146 Wn.2d at 9-10.

Under RCW 34.05.570(3), we review the legal determination of the WSLCB

under the error of law standard. Verizon, 164 Wn.2d at 915. This standard accords

substantial weight to an agency's interpretation of a statute within its expertise and an

agency’s interpretation of rules that the agency promulgated. Verizon, 164 Wn.2d at

915.

Haines-Marchel cannot show the adoption of WAC 314-55-035 or WAC 314-55-

040 is in conflict with the intent and purpose of the statute or that the WSLCB acted

outside its statutory authority.

The adoption of WAC 314-55-035 and -040 is consistent with the purpose and

intent of the statute. Initiative 502 unambiguously states the purpose of the initiative is

to take “marijuana out of the hands of illegal drug organizations and bring[ ] it under a

tightly regulated, state-licensed system similar to that for controlling hard alcohol.” Laws

oF 2013, ch. 3, § 1. RCW 69.50.325(3)(a) states that the WSLCB shall regulate the

No. 75669-9-1/30

marijuana retailer licenses and that “[e]very marijuana retailer's license shail be issued

in the name of the applicant.”

Under RCW 69.50.331(1)(b)(iii), “[nJo license of any kind may be issued to” a

corporation “unless all of the members thereof are qualified to obtain a license as

provided in this section." RCW 69.50.331(1)(a) expressly states that “[s]ubject to the

provisions of this section, the state liquor and cannabis board may, in its discretion,

grant or deny the renewal or license applied for.” RCW 69.50.331(1)(a) unambiguously

states the WSLCB ‘may consider any prior criminal conduct of the applicant’ in

determining whether to deny an application for a license. RCW 69.50.331(1)(a) states,

in pertinent part: