Washington city sued over its ban on marijuana businesses

In the heart of the state famous for its perfect apples, Wenatchee, Washington, earned the name somewhere along the way as the “Apple Capital of the World.”

Now, with the state additionally famous for its voter-approved marijuana legalization law, Wenatchee may soon find itself as the capital of the national pot debate after a lawsuit was filed Tuesday challenging the city’s ban on marijuana businesses.

Last October, the City Council voted not to allow recreational marijuana shops in Wenatchee despite the statewide passage of Initiative 502. The council reasoned that what wasn’t legal on a federal level would not be legal in Wenatchee either.

“Federal law is superior over state,” Councilman Bryan Campbell said to The Associated Press.

And that’s the reason the city was slapped with a lawsuit. Shaun Preder, who wants a license to operate a pot shop in Wenatchee, filed a suit in Chelan County Superior Court that takes issue with the city’s policy that every business there must comply with federal law in order to get a license to do business.

Wenatchee is hardly the only city in the Evergreen State to turn up its nose at recreational marijuana: Marysville, Richland, Yakima and several other communities have bans, and even more have imposed moratoriums on pot businesses. But it was Wenatchee’s reasoning — that it’s choosing federal law over state law — that makes it a target for a lawsuit, said Hilary Bricken, an attorney with the Canna Law Group representing Preder.

The city of Wenatchee 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.

“Our position is that they are not authorized to do that,” she said. “They cannot go back and say, ‘We may have said we’re for federal prohibition, but now we’re for the children.’”

Steve Smith, Wenatchee’s city attorney, said he shouldn’t have been surprised to be served the lawsuit, but he was. But he said the suit is yet another example of how confusing I-502 has been for municipalities to implement.

“It really needs to be straightened out at a higher level,” he said, pointing toward the federal government’s memorandum saying it wouldn’t challenge state laws permitting legal weed and Washington Attorney General Bob Ferguson’s opinion that municipalities can ban pot business. “You just put these local officials in an impossible position.”

Bricken said that despite what federal law says, no city can regulate outside the confines of state law. And the debate gets to the heart of the issue of whether city bans of marijuana are actually legal under Washington’s voter-approved law.

“Our position is you can’t pick and choose the state laws you want to enforce,” Bricken said. “This is a people’s initiative. 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.”

Bricken and Alison Holcomb, the architect of I-502 and the criminal justice director for the state American Civil Liberties Union, agree that suits like this one may, in fact, act as a deterrent to the dozens of cities across Washington that have imposed temporary moratoriums on pot business.

“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 wrote in an email. “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.

“This lawsuit isn’t about legalization as much as it is about democracy.”

While some have said Preder’s lawsuit could unravel I-502 altogether, Bricken said it is more likely that it could actually establish a legal precedent for other states looking to legalize marijuana — something that doesn’t exist at this point.

“This is the big juicy fight everyone was waiting for,” Bricken said.

Over the phone, Smith said he had just been served papers 10 minutes before regarding the suit, and he sounded flustered.

“There was an attorney general opinion that came out earlier this year … they basically said local governments can control and prohibit [marijuana],” he said. “The lawsuit is a direct challenge to that opinion.

“They’ve gotta get into the court system to get a decision, and they picked Wenatchee to do it.”