Update: On Aug. 29, the court upheld Fife’s ban, saying that I-502 does not require cities to allow marijuana businesses.
Update: August 18, 2014: The court has granted the business owners’ motion to intervene in the case.
ACLU Represents Them, Seeks to Defend State’s Marijuana Law
Represented by the ACLU of Washington, three state-licensed marijuana business owners today moved to intervene in a lawsuit challenging the City of Fife’s ban on marijuana operations. The plaintiff-intervenors say the City of Fife’s ban on legal marijuana operations within the city is unconstitutional and is preempted by state law. The suit (MMH v. Fife) is pending in Pierce County Superior Court.
“We are intervening in this case to ensure that Washington’s marijuana law goes forward as the voters intended when they adopted it,” said Alison Holcomb, ACLU of Washington criminal justice director and the author of I-502, the state’s marijuana law.
“Federal law does not preempt our state’s marijuana law, nor can individual cities opt out of state law.”
In 2012, Washington’s voters concluded that the state’s previous policy to control the traffic in marijuana had failed and adopted a new approach to marijuana regulation and enforcement. I-502 replaced the failed prohibition approach with a robust system of strict licensing requirements and tight regulatory controls. Under the new law, the state’s objectives remained the same: overcoming drug abuse and controlling drug trafficking.
At the federal level, Congress passed a law regulating marijuana and other drugs, the Controlled Substances Act (CSA), in 1970. The main objectives likewise were “to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.” When it passed the CSA, Congress made clear that it did not intend to preempt state laws that regulated drugs. Rather, the CSA expressly leaves to states the task of creating their own laws and developing their own tactics for marijuana regulation.
Since its passage, federal and state governments have operated in partnership, with the federal government enforcing federal law and state governments managing intrastate and local law enforcement. Eighteen states have decriminalized marijuana possession, and 23 states plus the District of Columbia permit the medical use of marijuana.
“State and federal laws do not have to be the same,” said the ACLU-WA’s Alison Holcomb. “I-502 is designed to protect the health and welfare of our state’s residents and maintains Washington’s traditional role as partner with the federal government. Our state’s law is consistent with federal enforcement priorities. It accounts for revenues, prohibits marijuana sales to children, and reduces the risk of violence by taking marijuana out of the hands of criminal enterprises.”
Further, cities, counties, and other municipalities may not prevent marijuana enterprises that are legal under state law from operating within their jurisdictions. They may enact local zoning ordinances and health and safety regulations that do not conflict with state law, but they may not forbid activity that state law permits.
The plaintiff-intervenors in the legal action are the following state-licensed business owners:
1) Downtown Cannabis Company, LLC, a producer and processor in Pacific
2) Monkey Grass Farms, LLC, a producer and processor in Chelan County
3) JAR MGMT, LLC dba Rainier on Pine, a retail store in Tacoma
Handling the case are ACLU-WA cooperating attorneys Sal Mungia of Gordon Thomas Honeywell LLP and Don Scaramastra, Jared Van Kirk, and Dominique Scalia of Garvey Schubert Barer, and ACLU-WA staff attorneys Sarah Dunne, Alison Holcomb, and Mark Cooke.
The City of Fife has enacted an ordinance which prohibits any production, processing, or retail sales of marijuana in the city – regardless of whether these activities are authorized by state law.