Submitted by Darren Smith, Weekend Contributor
In a ruling likely to embolden other cities and counties in Washington to prohibit legal marijuana businesses Pierce County Superior Court Ronald Culpepper ruled that Initiative 502, Washington State’s voter approved marijuana legalization and regulation measure, does not pre-empt local governments from adopting ordinances banning the legal marijuana industry.
We have previously discussed local ordinances and moratoria with the city of Wenatchee as a focus (HERE, HERE, and HERE) In this case plaintiff Tedd Wetherbee, who received state approval to found and operate a marijuana retail business in the City of Fife was denied a business license by the city by reason of an ordinance prohibiting such businesses.
The ruling could lead to further erosion of the voter-approved initiative having main purposes of ending the criminal element of marijuana distribution and providing the state with an additional source of tax revenue.
Presently approximately twenty eight cities and two counties now prohibit the legal marijuana industry from operating within their respective jurisdictions. A de facto prohibition exists in many more municipalities via the practice of passing indefinite moratoria under the auspice of policy review. The ruling will provide these and other jurisdictions with justification and a basis to hold fast to their bans or enact them now that a superior court has ruled in this matter favorably.
Attorneys for the City of Fife made two arguments to support their position. One was the I-502 non-preemption, and the other that Federal Law regarding controlled substances preempts I-502. The city maintained that in the licensing process their employees would be subject to criminal prosecution in federal court by inspecting and licensing marijuana businesses, a form of accessory in facilitating a federally prohibited operation.
Judge Culpepper ruled on the state’s non-preemptory nature of I-502 but did not address the federal pre-emption issue.
Plaintiff Wetherbee argued that a purpose of I-502 was to forestall the illegal marijuana trade by offering a legal alternative and that Fife was acting against the will of the voters with the ordinance. Judge Culpepper ruled that since Fife is a small municipality having a population of less than 10,000 persons and an area of five square miles that Wetherbee could not prove countering the illegal marijuana trade in that customers could travel to Tacoma, a large city neighboring fife where several recreational marijuana retailers will operate.
It is possible that an argument against Judge Culpepper’s ruling in the Fife case might not be applicable to a large cities or counties having a large area with few incorporated cities. In this respect the ruling might strengthen the City of Wenatchee’s case because neighboring East Wenatchee presently has an operating marijuana retailer.
In a somewhat odd position Washington Attorney General Bob Ferguson voiced that local authorities could prohibit marijuana businesses by ordinance and be compliant with I-502 but then argued that I-502 does not have a preemption issue with federal law. He commented to news reporters that if the federal preemption challenge would be successful it would completely invalidate I-502 and end Washington’s marijuana industries.
The American Civil Liberties Union has taken the position that cities and counties should only prohibit the marijuana industry if voters in those jurisdictions enact such bans.
Judge Culpepper stated that I-502 could have overruled city and county prohibitions by simply adding one sentence to the law that would have prevented localities from enacting such ordinances.
The legislature had previously attempted to provide such a benefit with a rather coercive carrot and stick approach, punishing cities by withholding excise tax from liquor sales if they enacted bans and rewarding them with a greater percentage of the marijuana tax revenue. The bill did not make state law. We discussed this in a previous article HERE.
State Representative Chris Hurst, who heads the House committee that oversees the marijuana industry, said lawmakers might review the matter, unless the state Supreme Court overrules Culpepper by January, an unlikely time frame, stating:
“If you carve out large chunks of the state and say they are able to pre-empt state law, you’ll have pockets where the criminal element flourishes.”
Plaintiff Wetherbee stated he plans an appeal.
The case could ultimately cause a liability issue for the state.
The passage of I-502 required the state Liquor Control Board to license and regulate the industry. The board promised applicants the ability to operate a licensed marijuana retail business within various areas allocated by the board. Based upon this and in exchange for licensing fees various prospective retailers received the right to operate. The Liquor Control Board further cemented the promise by causing retailers to conform to stringent business requirements and oversaw their creation, planning and organization. Such requirements induced these retailers to allocate tens of thousands of dollars to meet the board’s policies and were informed that if they met such requirements they would be allowed to begin operations. Despite this cities then pulled the rug out from under several of these retailers with prohibitions despite the state promising these retailers a licensed business.
The amount of uncertainty is preventing many from entering the market due to over-regulation, legislative risk, and inconsistency in policy and approach of the state. There is one certainty that has emerged. The illegal market is likely benefiting from I-502 in that the legal implementation is unraveling in many areas and there is no risk in the individual consumer being arrested for mere possession of small quantities.
By Darren Smith
Sources:
ABC News
City of Fife, Washington
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.
Its a failed policy, marijuana prohibition must fade away. Marijuana tourism seems to be working for some. Marijuana travel will be the next big thing. Lets see the rest of the world follow. http://usaweed.org/
Is there anything in similarities with preemption….
Beldar here: In New Orleans thinking about Ferguson. Do you folks wonder why the Saint Louis County (County not City) Police allowed the punks to loot the stores on West Florissant on that eastern edge of Ferguson while the protesting was going on? So that you folks in the world would know that there is a dark side to the black folks up there and so you would not just listen to the protestors crying about the dead 18 year old adult whom they called a kid. The news media, particularly CNN, ignores the fact that the police just let them loot. So the guy who mimicked the protestors and said: Hands Up! Dont Shoot! We just wanna loot! was spot on. The looters were not from Ferguson. The public has bought the spam and eggs dished out by CNN. They want you to think that Ferguson is some ghetto and that the cops hate blacks. The Earth is an antfarm. I must report back to Remulak that the Earthlings have fallen down on this one. Particularly the media and the snot noses who live up East and think their apCray dont stink cause they live on Martha’s Vineyard where Obama plays golf. That bridge in the photo on this article is a bridge over troubled waters.
Free NYC: generally speaking, I believe that State law cannot be more liberal than a similar Federal law; however, by policy, the Feds have decided not to intervene in what WA and CO are doing vis-a-vis MJ. A more conservative Administration could change this policy.
Another case of the people being ahead of a government that wants to control everyone.
Here is the plaintiff’s (“Weed Store”) motion which contains the arguments against the Municipality of FiFe, WA (Mot. Summ. Judgmt.).
Here is the defendant’s (“We Don’t Want No Stinkin’ Weed Here”). argument (City of Fife Arguments).
The judge ruled for the defendant municipality as Darren pointed out.
NJ has a state law which says you can’t park 50′ from a stop sign which in many places is impractical and the state allows town to make local variances. Washington is Washington, but typically municipalities are ‘creatures of the state’ (the state itself is a ‘unitary state’) so in essence state law allows them to, which in a sense is bizarre because while I support legalization, let’s face it, the Federal marijuana prohibition is still on the books, still having been ruled constitutional (Raich v Gonzalez)
corrected …
Anyone wanting to read briefs etc. in this case can do so on the ACLU of Washington site.
Here is a link to the case docket and proceedings (MMH v Fife).
I haven’t found the Judges written opinion yet.
Anyone wanting to read briefs etc. in this case can do so on the ACLU of Washington site.
Here is a link to the case docket and proceedings (>a href=”https://linxonline.co.pierce.wa.us/linxweb/Case/CivilCase.cfm?cause_num=14-2-10487-7″>MMH v Fife).
I haven’t found the Judges written opinion yet.
My prediction as to Wenatchee Superior Court was wrong I see.
I expected that court to rule differently than this court did.
I expect the appellate courts to rule differently, as well as the Wenatchee Superior Court.
I am 0 for one it seems.
An interesting aspect is that the appeal could bypass the appellate courts and go straight to the State Supreme Court:
(Puget Sound Biz Journal).
That is better than various Superior Courts in various counties ruling in various ways, then various appellate courts doing the same for years, then it finally getting to the State Supremes.
And what if you were in Nevada and someone wanted to put a cathouse next to your bible store? You would go out of business. And the cats would play.
What if someone wanted to put a dog killing store next door to your meat store? Or a snake store? Or a store selling good raw horse manure? How about a topless barber shop with female topless barbers? Is that illegal in Washington? How about a heroin addict resthouse for those out on the road with no place to rest their weary souls? Rat shop? Cigarette and tobacco store next to your grade school? Muslim Brotherhood school next to your kindergarten?
What is the purpose of zoning?
Move to North Carolina in a rural area where there is no zoning and enjoy the junkyard next door.
Some of the SoCal counties had hissy fits like this when the medical cannabis law was passed. Eventually they got their minds right. But, you got some real reactionary folks in Washington, Darren.
Pierce County is a red County on the blue side of the state. It is full of reactive ass hats, who will keep the county deprived of tax revenue from marijuana sales.
The judge was wise to avoid federal preemption. Had he done so, I think he would have had to rule the entire statute unconstitutional. (And I don’t think the State would have wanted that to happen.)
Thanks for keeping us abreast, Darren.
Lamar,
With a few exceptions this would not be possible due to the assignment of territory by the Liquor Control Board in unincorporated areas of counties. In those cases the LCB limited the licensees in the counties, that is just outside of city limits. It would amount to a territorial infringement.
A possible exception might be port districts that are within city limits that prohibit these businesses. There was a court ruling with regard to the city of Sea-Tac, WA where a $15.00 per hour minimum wage was enacted by the city but the Port of Sea-Tac, a municipality that administrates the airport. The court ruled that the city had no jurisdiction over the port district and so the minimum wage within the port district did not apply.
We covered this in an article HERE
I believe the appellate court ruled in favor of the lower court for the most part and it is pending before the State Supreme Court.
But, there might be an allocation issue with the Liquor Control Board that to my knowledge has not allocated licenses for marijuana businesses
Is it not possible for a prospective licensed marijuana dealer to go just outside the city limits of any town and set up the business? Or is the licensing so strict as to prohibit this? This practice is common in Texas with liquor stores, where local jurisdictions as small as precincts, into which counties are divided, can opt out of liquor sales through what are called local option elections. This has led to thriving businesses just outside of the precincts where liquor sales are prohibited.