Pubdate: Thu, 12 Jun 2014
Source: New York Times (NY)
Copyright: 2014 The New York Times Company
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Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Kirk Johnson

WITH MARIJUANA LEGALIZED, A CITY IN WASHINGTON STATE SAYS, 'NOT SO FAST'

SEATTLE - The first retail shops selling legal recreational marijuana 
in Washington State are preparing to open next month. Cash registers 
are standing by, and the first crops are almost ready for harvesting. 
But not every part of the state is joining the party.

The state attorney general, in a nonbinding legal opinion, has said 
local governments can regulate marijuana under the statute legalizing 
its recreational use, and at least 10 cities and counties in 
Washington have gone even further, banning marijuana businesses 
outright. An additional 69 municipalities, and 12 counties, have 
voted for moratoriums on such businesses, according to the Municipal 
Research and Services Center, a nonprofit group in Seattle that works 
with local governments on multiple issues.

Now, a lawsuit brought by a man who was denied a license to sell 
marijuana in Wenatchee in central Washington's apple-growing country 
is challenging the rights of local governments to ban marijuana 
businesses - and also raising the possibility that the state's 
marijuana law will come under sharp legal scrutiny.

The plaintiff, Shaun Preder, has been told by the city that he will 
not get a local business license to sell marijuana because the drug 
remains illegal under federal law - and that all Wenatchee businesses 
must comply with federal law.

Mr. Preder, who runs an office furniture store in Woodinville, near 
Seattle, said he spent about $12,000 in rent for a 3,000 square-foot 
shop in Wenatchee that he had hoped to open for marijuana sales. But 
uncertainty about a license has kept him from spending more to get 
the place ready.

Wenatchee's City Council is scheduled to meet on Thursday to decide 
whether to respond to the suit, which was filed in Chelan County 
Superior Court. A resolve to fight - especially if the city takes the 
position that federal law pre-empts state law - could ultimately take 
the suit to the United States Supreme Court, where the conflicts 
between federal and state laws on marijuana have never been 
addressed, legal experts said.

Washington's marijuana law could be affirmed by the courts, or struck 
down. And what unfolds in Wenatchee, a city of about 33,000 that was 
closely divided from the start about the wisdom of legal marijuana - 
with a narrow majority in the county supporting it in 2012 - could 
set the stage. Backers of legalization say it is a fight they are 
eager for, asserting that the statute will be affirmed.

"We need clarity," said Alison Holcomb, the criminal justice director 
at the American Civil Liberties Union of Washington State and primary 
author of the Initiative 502 statute.

Ms. Holcomb said the A.C.L.U. would seek to intervene in the case 
only if Wenatchee specifically claims federal protection for its 
position. "The federal pre-emption issue hasn't been resolved," she said.

But a will to fight is not the only consideration. Wenatchee's mayor, 
Frank Kuntz, who does not have a vote on the seven-member City 
Council, has said the city cannot afford hundreds of thousands of 
dollars in legal bills.

Mr. Kuntz urged the Council last fall to drop the word federal from 
the licensing code, and to grant the marijuana licenses that might be 
pending, but the Council affirmed the language instead by a 4-to-3 vote.

Mr. Preder's lawyer, Hilary Bricken, said that no matter what the 
Council decides on Thursday, her client has already been harmed by 
Wenatchee's actions because the Washington State Liquor Control 
Board, which regulates recreational marijuana, said it would proceed 
first in license applications in places where the local authorities 
are not trying to bar the door. She said she would seek an emergency 
court order holding the city's ban in abeyance if the suit goes forward.

Another legal expert who studies marijuana law said that uncertainty, 
at least for now, is the only certainty - in Washington and any other 
state considering legalization.

"As long as marijuana remains illegal under federal law, you will 
have a certain amount of grayness in the system," said Douglas A. 
Berman, a law professor at Ohio State University and editor of the 
online legal forum, Marijuana Law, Policy and Reform.

Professor Berman said the strains of a system without uniformity - 
legal under one legal code, illegal under another - echo the cracks 
that emerged near the end of alcohol prohibition, when some states in 
the 1920s began to back off enforcement of the Volstead Act banning 
alcohol even as federal enforcement continued.

In marijuana regulation and enforcement, he added, "Unintended legal 
consequences are inevitable because it's a territory we're still kind 
of ambivalent about as a nation."

Mr. Preder, 34, who said he has never been involved in the marijuana 
business before, said he has also never been invited in by the city 
to talk about his plans. But he rented a space bigger than most 
proposed marijuana shops around the state, which he said average 
about 2,000 square feet, because he believes that Wenatchee's market 
will be strong.

"Plenty of room to grow," he said.
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