Lawsuit over small Washington city's pot-business ban threatens state's legal marijuana law

To Tedd Wetherbee, the vacant storefront seems a suitable spot for selling pot. It's in a strip mall across from BJ's Bingo parlor, in a long commercial stretch occupied by fast-food joints, dry cleaners and massage parlors.

But like dozens of other cities in Washington, the small Tacoma suburb of Fife doesn't want Wetherbee — or anyone else — opening marijuana businesses, even if state law allows it. The arguments officials are making in a lawsuit over the dispute threaten to derail Washington's big experiment in legal, taxed cannabis less than two months after sales began.

A Pierce County judge on Friday is scheduled to hear arguments on two key issues at the core of Wetherbee's legal challenge to the ban. The first is whether Washington's voter-approved marijuana measure, Initiative 502, leaves room for cities to ban licensed pot growers, processors or sellers. If the answer is no, Fife wants the judge to address a second question: Should Washington's entire legal marijuana scheme be thrown out as incompatible with the federal prohibition on pot?

"It's challenging the state's ability to create a legal and controlled market," said Alison Holcomb, the American Civil Liberties Union of Washington lawyer who drafted the law. "They're saying, 'We'll just take the entire regulatory system down.' "

Washington's experiment is built around the notion that it can bring pot out of the black market and into a regulated system that better protects public health and safety than prohibition ever did. In reality, there won't be legal marijuana businesses in much of the state: 28 cities and two counties have banned them, and scores more have issued long-running moratoriums preventing them from opening while officials review zoning and other issues.

In Fife, a community of 5 square miles and fewer than 10,000 people, the planning commission spent months working on a plan that would have allowed state-licensed marijuana businesses in the commercial zone where Wetherbee wants to open his shop. But the City Council this summer amended it to ban the businesses.

Council members expressed concern about the number of pot sellers who might open in Fife, uncertainty about the impact that would have on the community or police resources, and objections that the law doesn't direct any marijuana taxes back to the cities.

I-502 won 53 percent of the vote in Fife, and there's little reason to think legal pot businesses have a greater impact on a community than the black-market marijuana trade. Fife's ordinance directed the planning commission to review any data collected on the topic, leaving open the possibility it could reconsider.

Wetherbee says he's been paying almost $3,000 in monthly rent on the storefront. He finally sued in Pierce County Superior Court, challenging Fife's zoning authority and the way the ban was adopted. "State law says I get to do business, and they're not letting us," he said.

The lawsuit has attracted a lot of attention, with the state, the ACLU chapter and other counties and towns filing briefs. The ACLU says that while Washington's liquor laws allow towns to ban alcohol sales, the pot low contains no such opt-out provision.

Cities can create zones for marijuana establishments, but they can't ban them, Holcomb said. If they could, it would undermine the will of Washington's voters in taking control of the black market.

Colorado, the only other state with legal pot for adults, expressly allows cities to ban pot businesses. Dozens have.

Attorney General Bob Ferguson has taken the position that I-502 did not negate local zoning authority to ban the shops, but he insists the state's law is not pre-empted by the federal Controlled Substances Act. He called Fife's arguments "a significant threat to the implementation of Initiative 502."

Fife is making the arguments the U.S. Justice Department declined to make last year, when it announced that it would allow legal pot experiments to move forward. When state and federal law conflict, federal law trumps. Some lawyers argue that for states to license the sale of a drug that's federally banned is an obvious conflict.

But Ferguson, the ACLU and Wetherbee's lawyers say the federal law contains a provision stating it trumps state law only in narrow circumstances. And as the U.S. Department of Justice suggested in its memo last year, there is no real conflict between state and federal law, they argue: By strictly regulating marijuana, prohibiting sales to teens and taking it away from criminal enterprises, the state is actually complementing the goals of the Controlled Substances Act, "to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances."

Fife's city attorney, Loren Combs, said too much is being made of the case, which is at its heart a zoning dispute. "It's really no bigger than just 5 square miles in Fife," he said.

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