No-pot city takes aim at state marijuana law

by: Nick McGurk Updated:

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FIFE, Wash. - Tedd Wetherbee is suing the city of Fife.

He says after he'd been given a green light from the state to sell retail marijuana, Fife's city council voted to ban pot shops.

At this point, he says, he’s invested $200,000.

"We had to sue, because it was the only way for us to exert our rights,” said Wetherbee.

Dozens of municipalities have banned the sale of pot in Washington. But Fife is the first city where a judge will decide whether the ban is legal.

A Pierce County judge on Friday is scheduled to hear arguments on two key issues at the core of Wetherbee's legal challenge to the ban.

The first is whether Washington's voter-approved marijuana measure, Initiative 502, leaves room for cities to ban licensed pot growers, processors or sellers.

If the answer is no, Fife wants the judge to address a second question: Should Washington's entire legal marijuana scheme be thrown out as incompatible with the federal prohibition on pot?

"What's at stake here is the initiative. The legalization of marijuana,” said Attorney General Bob Ferguson.

He says he thinks cities like Fife should have the option to ban pot sales.

But, he says, if a Pierce County judge decides otherwise -- and says cities can’t decide to ban sales -- legal weed could be in trouble.

Ferguson calls it the nuclear option.

"If you support the legalization of marijuana, you should hope that the judge rules tomorrow to allow jurisdictions to opt out of the sale of marijuana. Because if the court says you've got to sell marijuana in every jurisdiction, Fife is going to argue federal law preempts the entire system,” said Ferguson.

Ferguson says the issue could hypothetically rise as high as the U.S. Supreme Court.

"That truly would jeopardize the legalization of marijuana, we want to avoid that,” he said.

Wetherbee says he is entitled by state law to sell in Fife.

"State law says I get to do business, and they're not letting us," he said.

The lawsuit has attracted a lot of attention, with the state, the ACLU chapter and other counties and towns filing briefs. The ACLU says that while Washington's liquor laws allow towns to ban alcohol sales, the pot law contains no such opt-out provision.

Cities can create zones for marijuana establishments, but they can't ban them, Holcomb said. If they could, it would undermine the will of Washington's voters in taking control of the black market.

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