A recreational marijuana retailer has sued the state Liquor Control Board, seeking to get the state agency to sue counties and cities such as Kennewick that ban legal pot businesses.
Americanna Weed’s case against the Liquor Control Board was filed Wednesday in Thurston County Superior Court.
The business, owned by Tad Seaton and Cynthia Ventura of Everett, sued Kennewick over the city’s ban on recreational pot businesses a few months ago. Benton County Superior Court Judge Vic VanderSchoor decided last week that Kennewick’s zoning ordinance defining pot businesses as a prohibited use is constitutional and not preempted by state law.
Elizabeth Hallock, Americanna Weed’s attorney, believes last week’s hearing would have gone differently if the Liquor Control Board had been involved in the lawsuit, she said.
“We would have won had the LCB been there,” she said.
Lisa Beaton, Kennewick city attorney, pointed out during the hearing 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.
Hallock did not get a chance to respond to that argument during the hearing, she said.
Officials from the Liquor Control Board declined to comment Wednesday, as they had not yet seen the lawsuit.
Hallock wants the Liquor Control Board to enforce its rules and its rulemaking authority, she said. The agency needs to stop half-heartedly implementing Initiative 502 and use the broad discretion it was given by the initiative.
“They have just been sitting on their hands this whole time,” she said.
Private citizens, like the owners of Americanna Weed, have taken on all the liability, Hallock said. The retail marijuana licenses that businesses have invested time and money in are “ghost” licenses.
Taking money from businesses to license them when they can’t use the license is “like selling someone an insurance policy and not covering them,” she said.
Liquor Control Board officials have said the state license for recreational pot businesses does not give a business the right to operate in a city or county unless it also follows local rules.
Hallock has suggested the Liquor Control Board hire a third-party attorney, since the attorney general’s office has been intervening in lawsuits to defend the office’s opinion that cities and counties can ban recreational marijuana businesses.
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.
Attorney General Bob Ferguson told the Herald last week that the decisions mean judges will not be asked to decide if federal law preempts the state recreational marijuana law.
One of the defenses raised by local governments that have been sued because of local bans is that if state law preempts them from banning marijuana businesses, then federal law preempts the state legalization of recreational marijuana, he explained.
Hallock thinks it’s clear that the state’s recreational marijuana law does not conflict with federal law, she said.
If the Thurston County judge does not force the Liquor Control Board to sue cities and counties that have issued recreational marijuana business bans, then Americanna Weed wants the agency to move retailer licenses to cities and counties that do allow recreational marijuana businesses.
The agency has not been allowing applicants in locations where the businesses have been banned to move their businesses elsewhere, Hallock wrote in court documents.
Many businesses can’t afford to move their legal marijuana business just because the county or city has banned them, Hallock said.
Americanna Weed does not want to move its business out of Kennewick, but Hallock said the owners are losing money each day they are not allowed to operate.
Americanna Weed was among the companies chosen in a lottery for the first shot at limited retail licenses in Kennewick. The owners have been renting a location in Kennewick for nearly a year as part of the requirements to qualify to receive a state license.