Tedd Wetherbee stands in front of a storefront in Fife, Washington, a community that has banned marijuana businesses. (Gene Johnson, The Associated Press)

Lawsuit over city pot bans could derail Washington marijuana law

TACOMA, Wash. — A lawyer for a man who wants to open a marijuana shop in the small Washington city of Fife asked a judge Friday to strike down its ban on marijuana businesses, in a case that has big implications for the state’s experiment in legal pot.

The Tacoma suburb is fighting for its right to remain free of pot businesses, even though such enterprises are now allowed by state law. Fife is one of dozens of cities that have banned state-licensed marijuana growers, processors or retail stores from doing business.

Tedd Wetherbee wants to open a pot shop in a strip mall in Fife. He’s been paying nearly $3,000 a month in rent on a storefront and says he’s entitled to do business under Initiative 502, the legal pot law voters passed in 2012.

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Pierce County Superior Court Judge Ronald Culpepper was being asked to consider two key issues: Whether the law left any room for such local bans, and if not, whether Washington’s entire legal pot scheme should be invalidated as incompatible with the federal ban on marijuana.

Culpepper indicated that he plans to rule on at least part of the case Friday.

Wetherbee’s attorney, Mark Nelson, told Culpepper that in passing the law, voters wanted to ensure adequate access throughout the state to a substance that had been outlawed for generations. Allowing local bans is contrary to that goal, he argued.

Culpepper took up that line of reasoning in questioning Fife’s city attorney, Loren Combs.

“If every town and every county is allowed to opt out, doesn’t that completely gut the initiative?” Culpepper asked.

Combs responded by noting that the law’s drafters could have expressly forbidden local bans. “They didn’t,” he said.

The judge also questioned Nelson on whether the voters insisted that marijuana businesses be allowed in all communities. Just because they want meat doesn’t mean they want a slaughterhouse next door, he suggested.

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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, City Council members adopted the ban this summer, expressing concern about the number of pot sellers that might open, uncertainty about the impact they would have on the community or police resources, and objections that the law doesn’t direct any marijuana taxes back to the cities.

Another attorney for Fife, Hunter MacDonald, told the judge that Washington’s entire system of regulated marijuana is one big criminal conspiracy under federal law, and the city simply wants no part of it.

The lawsuit has attracted a lot of attention, with the state, the American Civil Liberties Union of Washington, and other counties and towns weighing in. The ACLU says that while Washington’s liquor laws allow towns to ban alcohol sales, the pot law contains no such opt-out provision.

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

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Washington Attorney General Bob Ferguson has taken the position that I-502 did not negate local zoning authority to ban the shops, but he insists that 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.”

State Solicitor General Noah Purcell told the judge that Wetherbee presented no evidence that banning marijuana in Fife undermined the access voters wanted in passing I-502: There are legal pot shops a 10-minute drive away in Tacoma.

Even if the judge upholds Fife’s zoning authority, the victory may be short lived. Rep. Christopher Hurst, who heads the state House committee that oversees the marijuana industry, told The Associated Press that if Fife wins, lawmakers will amend the law to prevent local bans.

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