The city of Kennewick’s right to ban recreational marijuana businesses inside city limits has been upheld.
Benton County Superior Court Judge Vic VanderSchoor decided Friday that Kennewick’s zoning ordinance defining pot businesses as a prohibited use is constitutional and is not preempted by state law.
Tad Seaton, one of the owners of Americanna Weed, did not take VanderSchoor’s decision well. After being asked by the bailiff to watch his mouth, he stormed out of the courtroom and added, “It’s f------ b-------.”
Americanna Weed was among the companies chosen in a lottery for the first shot at limited retail licenses in Kennewick. It sued the city toward the end of August, before the city council took its vote to permanently ban pot-related businesses.
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Americanna Weed asked the judge to declare Kennewick’s ban on marijuana businesses unconstitutional. Elizabeth Hallock, the company’s attorney, said the city should not be allowed to ignore the will of the voters who approved Initiative 502.
The city should not be able to obstruct a legal, state-licensed industry, said Hallock, who also owns Stonehenge Cannabis, a retail marijuana store in Murdock, Wash.
Cynthia Ventura of Everett, who owns Americanna Weed along with her husband, Seaton, wrote in court documents that the two were active in the city’s planning process and offered to pay a higher business licensing fee of $5,000 based on fees Nevada set for its new medical marijuana system. She has been renting a location in Kennewick since December as part of the requirements for her to qualify to receive a state license.
“In effect, I am providing a social service for my state and my community by diverting sales from the black market at great financial expense to me personally,” Ventura wrote.
I-502, state law and Liquor Control Board rules do not include anything that entitles a business to open a retail marijuana store, said Lisa Beaton, Kennewick city attorney. She pointed out that the Liquor Control Board was not part of the lawsuit and had not claimed that Kennewick was thwarting the state’s system for legal recreational marijuana.
The city relied on the state attorney general’s opinion that local governments have the right to ban marijuana-related businesses. The attorney general’s office intervened in the case on behalf of the city.
VanderSchoor is the third superior court judge to agree with the state attorney general’s opinion. Judges in Pierce and Chelan county superior courts have upheld that I-502 does not prevent cities from banning legal marijuana businesses.
“As I have said from the beginning, the drafters of Initiative 502 could have required local jurisdictions to allow the sale of recreational marijuana,” Attorney General Bob Ferguson said in a statement. “It could have been done in a single sentence, but it was not. Now it is up to the Legislature to decide whether to require local governments to allow for the sale of marijuana.”
There is a fourth case in Pierce County arguing that jurisdictions are preempted from banning marijuana businesses, Ferguson told the Herald. No hearing has been set in that case, which his office also has intervened in.
“We are intervening in any case that brings up this issue,” he said.
While some argue that Washington should force every jurisdiction to allow recreational marijuana businesses, that would be inconsistent with state law and what other states have done, Ferguson said. The three other states that have legalized marijuana sales — Colorado, Oregon and Alaska — all have a provision that allows jurisdictions to opt out.
The Liquor Control Board can set a maximum, but it doesn’t have the authority to make cities or counties accept a specific number of marijuana businesses or any at all, said Jeffrey Even, deputy solicitor general, in court Friday.
The Legislature had opportunity during its last session to amend state law, but did not do anything to overturn the attorney general’s opinion, Beaton wrote in court documents. In the past, courts have found that means legislators have consented to that opinion.
VanderSchoor told Hallock he based his decision on the briefs filed in the case. She had asked him if he planned to explain his decision. He said no.
Americanna also has claimed Kennewick’s marijuana business ban is discriminatory. VanderSchoor did not rule on the discrimination claims Friday. The city has asked the court to deny those claims.
“The white city council of Kennewick does not want visibly public marijuana sales in traditionally white, commercial neighborhoods, yet is content to have the visibly public, unregulated sales of unsafe marijuana products continue and compound in minority neighborhoods,” Hallock said in court documents.
Kennewick says Americanna Weed lacks standing to sue for discrimination, since the company is not an organization or a representative of minority adults and children in the Tri-Cities, according to court documents. Beaton wrote that the company has failed to show how the city’s zoning ordinance discriminates against them specifically since the ban is on all marijuana businesses, regardless of race, gender or anything else.
Kennewick’s motion for summary judgment is expected to be heard on Dec. 5.