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Seattle Times coverage of pot policy, culture and lifestyle.

August 29, 2014 at 3:05 PM

Judge upholds city of Fife’s ban on pot businesses

A Pierce County judge Friday upheld the city of Fife’s ban on marijuana businesses, saying the state law legalizing pot did not mandate cities to allow them.

Prospective marijuana retailer MMH was suing the city and hoped the judge would compel Fife to issue it a business license. Tedd Wetherbee, who owns MMH, said he plans to appeal the judge’s ruling.

State Attorney General Bob Ferguson said he expects the case will wind up in the hands of the state Supreme Court, possibly early next year.

“It’s precisely the issue the state Supreme Court is likely to provide guidance on to the state,” said Ferguson.

There were two key issues in the case: whether Fife and other municipalities are allowed to ban marijuana businesses under Initiative 502, and whether federal marijuana laws on pot trump the state’s.

MMH’s lawyer, Mark Nelson, argued that Initiative 502 set up a tightly regulated system controlled by the state Liquor Control Board. Because the board allotted stores across the state and licensed them, Nelson said, his client had the right to open up a shop and Fife shouldn’t be able to stop him.

He also argued that disallowing MMH to operate violated voters’ will. Fifty-three percent of Fife voters approved I-502 in November 2012, he said.

“I-502 represents the will of people of Washington state,” said Nelson during the hearing in Pierce County Superior Court. “It represents the will of Pierce County and will of the city of Fife.”

Judge Ronald Culpepper disagreed in what he represented as a “quick and dirty” ruling from the bench.

“It could be consistent for people to generally think of legalization of marijuana as a good thing, but not in their backyard,” Culpepper said. “I don’t think that’s an irreconcilable conflict.”

Because Culpepper decided Fife was allowed to ban pot businesses within the bounds of I-502, he didn’t have to reach the second issue Fife raised — federal preemption. He did take a moment to comment on the issue though.

“There is not federal preemption here,” he said.

The judge said the state has the authority to legislate marijuana policy and that Washington’s approach wasn’t at odds with the Controlled Substances Act. If the federal government wanted to crack down on marijuana, he said, it still could.

During the hearing, Culpepper also balked at Fife’s argument that city officials could be prosecuted by federal authorities for approving pot businesses, saying it seemed “far-fetched.”

The state Attorney General’s Office, which intervened in the case and believed the bans were legal, disagreed with Fife on the issue of federal preemption and said it could “eviscerate” the law legalizing marijuana.

After the hearing, Ferguson said the judge’s ruling put the initiative on stronger legal ground because federal preemption was a nonstarter for the judge.

“We’ll go anywhere, any time to defend I-502” from federal preemption, said Noah Purcell, the state Solicitor General, who argued the office’s position.

It’s not clear yet if the ruling will have widespread effects. The Legislature meets in January and could address pot bans. A higher court could overturn the judge’s decision.

Alison Holcomb, the ACLU lawyer who crafted the initiative, said she believed the judge’s ruling was “specific to the case.”

“I don’t think Judge Culpepper’s decisions necessarily applies to other jurisdictions or Pierce County where legislation is pending right now,” she said.

I-502 requires Washington residents have “adequate access“ to pot products “to discourage purchases from the illegal market.”

Representing the ACLU, attorney Salvador Mungia argued that if municipalities adopted widespread bans, it would undercut the system and prevent the state from its goal of eradicating the black market.

The judge seemed sympathetic to the argument, and suggested a ban in Pierce County might not be analogous to one in tiny Fife, a town of about 9,000 people where residents can access nearby pot shops.

Holcomb said she hopes the state Legislature can address bans this session. “My hope is that we’ll have a political solution in 2015,” she said. Holcomb said the Legislature should consider incentivizing municipalities to participate in the I-502 system by changing the law’s tax structure.

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