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Judge rules in favor of Fife pot ban, but doesn’t address conflict between federal prohibition, I-502

A Pierce County Superior Court judge has ruled in favor of a local marijuana ban while simultaneously skirting one of the biggest questions facing the state’s newly implemented pot trade.

Judge Ronald Culpepper ruled Friday that Fife’s prohibition on marijuana-related businesses is not pre-empted by state Initiative 502, which was approved by voters in 2012 and created a regulatory system for recreational marijuana producers, processors and retailers.

But Culpepper didn’t conclude whether federal prohibition of the drug trumps state law, an issue that pot advocates and opponents alike have been hoping courts would address. He said he was “inclined” to disagree with Fife’s argument that federal law pre-empts I-502, but he avoided ruling on the issue.

Culpepper’s ruling came after a nearly three-hour hearing at which he heard four separate arguments delivered by six attorneys, including representatives of the state Attorney General’s Office and the American Civil Liberties Union of Washington. It was the result of a legal challenge brought by two prospective pot retailers who argue that Fife’s ban is inconsistent with state law and wrongfully blocks legal businesses from operating in the city.

Mark Nelson, the plaintiffs’ attorney, argued Friday that the the will of 54 percent of state voters — and 53 percent of Fife voters — who supported I-502 is more important than the “personal agendas” of five council members who approved the citywide pot ban in July.

He added that the allowing local governments to ban marijuana businesses undermines the “spirit” and intent of I-502.

“The system needs to operate throughout the state to be effective,” Nelson said in court.

Culpepper noted that Fife residents don’t have to travel far to buy recreational marijuana because nearby cities such as Tacoma allow pot stores.

But Tedd Wetherbee — a plaintiff who has secured a spot in the state’s retail license lottery and already is leasing space in Fife for a potential store — said the solution for businesses isn’t as simple as moving locations.

“Inside the lottery system you have to be inside a certain area,” he said after the ruling. Wetherbee is high on the list to secure two licenses in the Pierce County at-large category, which allows for 17 retail licenses outside of Tacoma, Lakewood, Puyallup, University Place and Bonney Lake, which received their own allotments.

Wetherbee said he absolutely plans to appeal Culpepper’s decision, stressing that he’s willing to take the issue all the way to the U.S. Supreme Court, if necessary.

Alison Holcomb, criminal justice director for the regional ACLU and author of I-502, said she wasn’t entirely pleased with Friday’s ruling, but she appreciated Culpepper’s informal dismissal of Fife’s federal pre-emption claim. She added that the ruling wasn’t a precedent-setting decision.

During the hearing, Fife City Attorney Loren Combs said that just because state law allows marijuana businesses, it doesn’t mean local governments have to allow them.

“There is no mandate in the state law ... that requires every city to allow marijuana businesses,” he said Friday.

Culpepper agreed. He cited general policing powers granted to local jurisdictions by the state constitution and added that I-502 didn’t explicitly override those powers.

“Fife can legislate within various limits,” he said before issuing his ruling.

Also at Friday’s hearing were state Attorney General Bob Ferguson and Solicitor General Noah Purcell, who presented arguments to “uphold the will of the voters” and “vigorously defend” the state law’s intent. The AG intervened in marijuana cases in Fife and Wenatchee on July 31.

Ferguson has maintained that I-502 isn’t pre-empted by federal law, but it also doesn’t prevent local governments from banning marijuana businesses, something he spelled out in an advisory opinion in January. Some local jurisdictions have used that opinion to block implementation of the new law.

Following Friday’s hearing, Ferguson told reporters he was pleased that Culpepper agreed with his advisory opinion, adding that the decision preserves I-502.

“We think it’s a great day for the people of the state of Washington,” he said.

Ferguson also noted that his job is to help the court reach the right interpretation of the law, not act as a policymaker. He said if cities and counties continue to ban marijuana businesses, he thinks the Legislature would have to address how to preserve the access to recreational pot intended by I-502.

As for Culpepper’s decision not to rule on the federal pre-emption issue, Ferguson and Purcell both said it was a wise choice.

They stressed that issuing a ruling on the conflict between state and federal law could give rise to a battle at the federal level and risk “eviscerating” I-502.

“We’d rather not have to reach that issue at all,” Purcell told reporters. “There’s one less threat to the initiative today.”

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