AGO Opinion Topics: PREEMPTION

An ordinance of a first class city that prohibits food establishments from treating people differently based upon the use of additional types of service animals is not preempted by a state law prohibiting different treatment based only on the use of trained guide dogs and miniature horses.

1. Initiative 502, which establishes a licensing and regulatory system for marijuana producers, processors, and retailers, does not preempt counties, cities, and towns from banning such businesses within their jurisdictions.
2. Local ordinances that do not expressly ban state-licensed marijuana licensees from operating within the jurisdiction but make such operation impractical are valid if they properly exercise the local jurisdiction’s police power.

RCW 35.21.830 and 36.01.130 preempt local governments from imposing rent controls on residential structures or sites.  An ordinance that prohibits landlords from terminating residential tenancies by increasing rent is a type of rent control and is preempted by these statutes. 

1.  Chapter 17.21 RCW authorizes the Department of Agriculture to regulate pesticide application and use.  This chapter preempts cities and counties from regulating pesticide application and use, except the first class cities and the counties in which they are located can regulate structural pest control operators, exterminators, and fumigators. 2.  Chapter 15.58 RCW authorizes the Department of Agriculture to regulate formulation, distribution, storage, and disposal of pesticides.  This chapter does not preempt cities and counties from regulating these activities, so long as the local regulations do not conflict with state law.   

RCW 9.41.290 preempts a city’s authority to enact local laws that prohibit possession of firearms on city property or in city-owned facilities.

1.  RCW 70.128.175(2) provides that adult family homes shall be permitted uses in all areas zoned for residential or commercial purposes.  This statute preempts local zoning ordinances that prohibit the location of an adult family home within a certain distance of other similar facilities. 2.  The State licenses residential care facilities, other than adult family homes.  The fact that the State licenses these facilities does not in and of itself preempt local zoning ordinances that prohibit the location of such facilities within a certain distance of other similar facilities.

1.  RCW 18.54.070(2) authorizes the Optometry Board to adopt rules to promote safety, protection and the welfare of the public.  This authority empowers the Board to adopt rules setting standards for prescribing practices and defining a contact lens prescription. 2.  Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will not improperly regulate dispensing opticians, for RCW 18.43.060 provides that dispensing opticians may fit contact lenses only upon written prescription of a physician or optometrist.   3.  Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will probably not co conflict with applicable Federal Trade Commission Rules.  4.   Rules adopted by the Optometry Board to set standards for prescribing practices and defining a contact lens prescription will probably not violate federal antitrust laws because such laws do not apply to anticompetitive restraints imposed by the state as an act of government.