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Wenatchee and Centralia Sued on Recreational Marijuana Issues

June 25, 2014 by Jim Doherty
Category: Marijuana

Update: On the evening of the day that this article was originally posted, the Wenatchee city council considered changing the city’s business licensing ordinance to delete the requirement that all businesses in the city be compliant with federal law - a significant issue in the lawsuit filed against the city. That amendment was tabled, but the city council did adopt a moratorium on accepting applications for licenses or permits for marijuana businesses to give the council time to consider zoning or other regulations for marijuana businesses within the city.

It took a while, but it looks like the courts in Washington are going to start tackling some of the difficult issues raised by conflicts between state, local, and federal laws regarding recreational marijuana.

The City of Wenatchee rejected an ordinance last October (by a 4-3 vote) that would have allowed recreational marijuana businesses within the city. In April of this year, SMP Retail was informed by the Liquor Control Board that the company had been selected as a potential retail store licensee in Wenatchee -- but the city objected, citing its business licensing requirement that a business's activities must be legal under federal law, in addition to city and state law. The jilted potential licensee filed suit in Chelan County Superior Court requesting a declaratory judgment and injunctive relief. See complaint, SMP Retail, LLC v. City of Wenatchee.

The proceedings in Centralia have a slightly different context, but deal with the same primary issue of the city's authority to prohibit recreational marijuana uses. The City of Centralia adopted a moratorium on recreational marijuana uses in October of 2013 and has subsequently extended the moratorium. An applicant for a state license to operate a retail marijuana business in Centralia won a lottery for the license but has been unable to proceed with his business because of his inability to obtain permits through the city. The lawsuit filed in Lewis County Superior Court earlier this month alleges that the rolling moratorium amounts to a prohibition on retail marijuana businesses within the city. The lengthy complaint (32 pages) alleges many injuries and seeks declaratory, injunctive, and mandamus relief.

The Wenatchee lawsuit could end up addressing the issue of whether federal drug laws preempt Washington’s attempt to establish a regulated market for recreational marijuana. If Wenatchee’s response to the lawsuit relies on the defense that every business operating in the city has to be compliant with both state and federal law, then the table is potentially set for a test case on this crucial issue. Other states will be watching what happens in the lawsuit. It is possible that Wenatchee will not choose to raise the federal law issue or to back off and allow marijuana businesses to operate. Stay tuned!

[7/16/2014 update: The City of Wenatchee’s response to the lawsuit is apparently relying on the legal reasoning used in a January 2014 Attorney General opinion that concluded that I-502 does not preempt cities and counties from banning marijuana businesses within their jurisdictions. That is an important legal issue not yet addressed by the courts. The city’s response avoids the federal preemption issue and the more extensive legal complications and costs that would come with that issue. For more information see "Wenatchee doesn’t want to be test case for state-feds pot conflict," Seattle Times, 7/15/2014.]

Now that these suits have been filed there is the possibility that the courts will provide some answers regarding the authority of local governments to prohibit recreational marijuana uses. Non-lawyers take note: it will likely take months before any trial court decision is reached, and that decision likely will be followed by an appeal, which would add many more months to the process. And there is always the possibility that one of these suits could be appealed all the way to the U.S. Supreme Court. Don’t hold your breath.

If your city or county has prohibited recreational marijuana businesses, or maintains a moratorium on such operations, your jurisdiction might also, of course, get sued. The ongoing legal proceedings in Chelan and Lewis counties might make it less likely that more lawsuits will be filed, but that is hard to predict. As we have frequently noted, the transition to legal marijuana is full of strange twists and turns. We're still twisting and turning.

About Jim Doherty

Jim has over 24 years of experience researching and responding to varied legal questions at MRSC. He is the lead attorney consultant and has special expertise in transmission pipeline planning issues, as well as the issues surrounding medical and recreational marijuana.



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