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Friday, August 29, 2014

Harsh Toke? Attorney General Wins Fight to Let WA Cities Ban Pot Stores

Posted by on Fri, Aug 29, 2014 at 3:50 PM

Attorney General Bob Ferguson gets his day in court (of course, he gets a lot of days in court).
  • Image courtesy Attorney General's Office
  • Attorney General Bob Ferguson gets his day in court (of course, he gets a lot of days in court).
A small city in Washington State is legally justified in banning pot stores, even though pot stores are legally allowed under state law, according to a Pierce County judge's decision this afternoon. The Associated Press reports that a would-be store owner, who was banned from opening a shop by the city of Fife and filed the lawsuit, says he plans to appeal the decision. However, if today's ruling holds at the state supreme court, this could mean cities throughout the state have a green light to ban legal marijuana businesses.

Is this the lamest thing ever?

It depends who you ask. Alison Holcomb, who wrote pot-legalization Initiative 502 and is currently the drug policy director of the state's ACLU chapter, recently discussed this issue with The Stranger. She warned that upholding the city council's ban in Fife would allow every local jurisdiction in the state to ban marijuana businesses. "If you carry that to its logical conclusion," Holcomb said, "every city and county in the state could ban marijuana businesses and then render Initiative 502 a nullity." The AP's Gene Johnson adds in his reporting, "28 cities and two counties have banned pot shops, and scores more have issued long-running moratoriums preventing the stores from opening while officials review zoning and other issues."

But on the other side, Attorney General Bob Ferguson—who helped defend the city of Fife—said in an interview earlier this month that stoners should actually rejoice in a ruling like this one. Sound counter-intuitive? He contended that the initiative passed by voters in 2012 doesn't explicitly prevent cities from banning pot businesses, and, as a result, any attempt to force pot stores upon those cities will lead to larger court battle. Officials in Fife argue that marijuana remains a federal offense, and that, in essence, allowing pot stores creates a conflict with the Controlled Substances Act passed by Congress. To follow Ferguson's logic here, allowing cities to ban pot businesses avoids a larger court battle that could "eviscerate" the entire marijuana law—in Washington and possibly other states. That sort of federal ruling would render the state-based legalization strategy moot, leaving future pot-law reform up to Congress, where legalization efforts have languished since the 1970s.

"If we are correct that local jurisdictions can ban marijuana, then the court never needs to reach the issue of whether federal law preempts Washington State law regarding the legalization of marijuana," said AG Ferguson. He said he is "intervening to uphold" legalization.

But Holcomb doesn't buy it. She says a federal challenge to state-based pot legalization in inevitable.

"I just don't see how you avoid the federal preemption question," said Holcomb, a lawyer herself with a career under her belt litigating drug cases. "Ferguson has given cities and counties more reason to adopt bans in place like Pierce County, which is actually doing more to invite the federal preemption litigation, because that will frustrate more license applicants." Stay tuned to this case.

 

Comments (15) RSS

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1
This is another way in which I-502 was a poorly written law. Colorado is not facing these kinds of problems. Something to keep in mind when I-502's author, Alison Holcomb, runs for Seattle City Council next year. If she screwed up this badly in drafting legislation, is she really the right choice for City Council?
Posted by junipero on August 29, 2014 at 4:00 PM · Report this
JonnoN 2
Leg. needs to pass something either a. preventing opt-out, or b. making sure the teetotaling jurisdiction doesn't get any pot tax money.
Posted by JonnoN http://www.backnine.org/ on August 29, 2014 at 4:01 PM · Report this
fletc3her 3
I wouldn't worry too much about this kind of thing. If marijuana proves popular these laws can be overturned by the citizens. In the meantime there's little practical difference between Fife with zero stores and practically every other community in the state with zero stores.
Posted by fletc3her on August 29, 2014 at 4:06 PM · Report this
4
@1 - I'm pretty sure there are towns in Colorado that have opted out as well.
I see no reason the constituents in a particular community couldn't overturn city or county officials via referendum. I would assume that any pro-drug referendum would easily pass in a meth infused cesspool like Fife.
Posted by Pol Pot on August 29, 2014 at 4:11 PM · Report this
5
wow, what a great example of how terrible and backwards fife is. you would think the massive meth problem would be the priority, as @4 pointed out. oh well..it's not like there's ANYTHING in fife worth doing. (except maybe a meth rehabilitation clinic if you're a tweaker)
Posted by Nihilist Apatheist on August 29, 2014 at 4:35 PM · Report this
6
Doesn't this allow for more stores in cities like Seattle that welcome pot stores?

There's a limited amount of licenses, and with fewer cities in the running for them, that's more licenses for the rest of us, right?

I'm also w/ @2 for disallowing these municipalities from receiving any portion of the tax revenue generated.
Posted by Bored@School on August 29, 2014 at 4:46 PM · Report this
Teslick 7
2 & 6: Cities don't get a dime of the taxes off pot now; give cities a cut (like is done with liquor) and you will see less of these local bans.
Posted by Teslick on August 29, 2014 at 4:54 PM · Report this
8
Legalization has had every possible roadblock thrown in its way. Follow the money. Someone is benefitting from these delaying tactics. Who? Do we have some organized crime in Washington I don't know about? I get the feeling something bigger is going on.
Posted by MyDogBen on August 29, 2014 at 5:45 PM · Report this
9
From the AP story: "Culpepper said Wetherbee did not prove that banning pot shops in such a small city - 5 square miles and fewer than 10,000 people - would thwart the will of the voters; there are shops open in neighboring Tacoma.

The analysis might be different for bans in Pierce County or other more populous or larger parts of the state, Culpepper suggested."

Well that seems fair.
Posted by Chali2Na on August 29, 2014 at 5:53 PM · Report this
11
@6 No, licenses were allocated on a per city, or per county basis, and they were allocated to all cities and counties regardless if there was a ban or not. There's been no indications that the LCB will ever reallocate licenses from banned areas to non banned areas, though you'd think that would make sense at some point.

(Note that there were applicants in areas that had bans before the applications were due, and also there are applicants who applied in areas which subsequently enacted bans, so any reallocation would be taking away from these people who presumably are working hard to overturn said bans.)
Posted by rramstad on August 29, 2014 at 6:47 PM · Report this
12
Nobody is forcing a pot store onto those towns. The pot stores are moving the supply to where the demand is.

Why do these people hate the idea of WA making easy money??
Posted by treehugger on August 30, 2014 at 9:24 AM · Report this
13
I think @3 has it right. This may slow things down, but it's not going to stop them. Maybe the federal preemption issue will still come to a head. But the longer the time is before that issue is raised in court, the more likely it is that other states may also get on the legalization bandwagon, which will in turn improve the odds of getting better results at the federal level.

The same is true inside the state. Counties and municipalities can't ban people from smoking pot within their borders, right? They can just ban people from selling it. It's no different than dry counties down in Texas or something. Is that a bit of a pain? Yes. Has it stopped people from consuming alcohol? No. It's just more money in the pocket of the people and places who are allowed to sell it.

If the demand is there, even if it's from a small number of stores, the supply will eventually equalize.

Everybody managed to get pot before it was legal to sell it. I doubt this ruling will change that.
Posted by j-lon on August 30, 2014 at 11:13 AM · Report this
14
Boulder levied a city tax, which rides on top of the state tax on pot. A town in Colorado has to incur some costs making sure the weed stores are correctly following all the minutia of operating legally, so it's reasonable they should get some revenue. A number of cities and towns have refused to allow stores to open. That's ok, I think. People can drive here to Boulder from Longmont, CO (where stores are banned) buy their weed, and leave a few tax dollars in our coffers. Win-win.
Posted by Eric from Boulder on August 30, 2014 at 1:46 PM · Report this
collectivism_sucks 15
So, you liberals are against letting cities and towns draw their own weed laws...but you are for cities and towns having their own minimum wage laws.
WTF!? And Who the fuck needs a pot store anyway? I will always buy from a freelance pharmacist. The taxes are too high and the State steals enough of my money as it is.
Posted by collectivism_sucks on August 30, 2014 at 2:16 PM · Report this
16
if we have to explain the difference to you, @15, it means you need to put the fucking joint down for a half a second and let your brain chemistry settle down.
Posted by pheeeew!crack!boom! on August 31, 2014 at 2:02 AM · Report this

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