Last Tuesday, Shaun Preder filed a lawsuit with the Chelan County Superior Court against the city of Wenatchee, Washington, after city officials told the Washington state resident that he would not be able to open a retail marijuana store in the city because the business would be in direct violation of federal law.
Although Washington legalized medical marijuana use in 1998 and recreational use in 2012, about 100 cities and counties throughout the state have enacted temporary or permanent bans on marijuana possession or marijuana-related businesses.
It may seem strange that local governments would move to prohibit the use or sale of a substance that is legal in the state, but it’s actually a trend that has occurred in several other states with progressive legalization policies, including California.
Starting in 2010, the issue of whether a city or county could prohibit residents from possessing marijuana or ban marijuana-related businesses was tested when a dispensary in Riverside, California, was shut down after city officials ruled the business a “public nuisance.”
The dispensary, Inland Empire Patient’s Health and Wellness Center, filed a lawsuit against the city, arguing that shutting down marijuana dispensaries went against the Compassionate Use Act’s objective of “ensuring access to marijuana for the seriously ill who need it in a uniform manner throughout the State.”
The city argued that lower courts agreed that there is nothing in the CUA or the Medical Marijuana Program that says every city needs to allow marijuana businesses. Last March, the California Supreme Court also agreed, thereby allowing more than 200 cities and towns throughout the state to continue to prohibit the sale of the substance.
Federal vs. state
For the city of Wenatchee, the council’s decision to not allow recreational marijuana shops in the city was voted on and passed last October. Councilman Bryan Campbell explained last fall that the reason for the ban was because “Federal law is superior over the state [law].”
It was the belief that federal law should trump the state’s marijuana laws that made the city vulnerable to a lawsuit, said Hilary Bricken, at attorney with Canna Law Group, the legal firm representing Preder.
She explained that the city officials could have “created an exemption to [its business license] code that would have allowed for state marijuana business. They opted not to do it,” she said. “They did it solely based on federal prohibition. They stated that in the record,” which Bricken says is something the city is not authorized to do.
“The question on the table is whether cities can rely simply on federal prohibition to deny these businesses in their jurisdictions,” she said. “We were careful to not call into question the validity of I-502 itself.”
Steve Smith, the attorney representing the city of Wenatchee, said he was surprised by the lawsuit, but also admitted that he probably shouldn’t have been. The real issue, he said, is how confusing Initiative 502 — the legislation legalizing recreational use of the drug in the state — is.
“It really needs to be straightened out at a higher level,” he said. “You just put these local officials in an impossible position.
“There was an an attorney general opinion that came out earlier this year…they basically said local governments can control and prohibit [marijuana],” which means the lawsuit is a direct challenge to that opinion, Smith argued, referring to Washington Attorney General Robert Ferguson’s opinion that municipalities can ban marijuana-related businesses.
But Bricken said city officials “can’t pick and choose the state laws [they] want to enforce.”
“This is a people’s initiative,” she said. “That means something, and that should be honored. You can’t just opt out because you want to hide your head in the sand because of federal prohibition.”
Alison Holcomb, the architect of I-502 and the criminal justice director for the state’s American Civil Liberties Union, agreed with Bricken that this lawsuit may deter cities from imposing moratoriums on marijuana, since, as she said, “This lawsuit isn’t about legalization as much as it is about democracy.”
“Cities and counties leaning toward bans may not have fully considered the taxpayer expense involved in forcing litigation to implement this voter-approved state law,” Holcomb said. “Hopefully, this lawsuit will encourage local elected officials to set their personal objections aside and revisit reasonable zoning regulations for the limited number of businesses the state intends to license.”
Setting a precedent
Some in the state have expressed concern that the lawsuit may lead to the undoing of I-502 and recreational legalization in Washington state. If the court finds that federal law can trump state law in this instance, they worry, Washington’s pot laws may be invalidated.
However, Bricken appears to have a more positive attitude about the potential implications of the lawsuit, saying she believes it’s more likely the lawsuit will establish a legal precedent on how influential federal laws can be in a state that has legalized the drug.
The city of Wenatchee has 20 days to respond to the lawsuit. Mayor Frank Kuntz has advised the City Council to not take the case to court if it will be an expensive battle, but the seven-person council will ultimately decide what action to take.
Given that Kuntz encouraged the City Council to drop the federal requirement for its business licensing process last year, but the council voted 4-3 to keep the requirement, it’s not clear if the council will heed the mayor’s advice.
How the city will proceed is scheduled to be discussed during the council’s next meeting on June 12.