Pubdate: Fri, 29 Aug 2014
Source: Seattle Times (WA)
Copyright: 2014 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Gene Johnson, The Associated Press
Page: B2

SUIT AGAINST FIFE'S BAN ON POT CHALLENGES STATE'S MARIJUANA LAW

Pierce County

Arguments in Case Will Be Heard Friday

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 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 would 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 sued in Pierce County Superior Court, "State law says I get 
to do business, and they're not letting us," he said.

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 said 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.
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MAP posted-by: Jay Bergstrom