Pot backers plan to fight Pierce County ban

Pierce officials point to federal marijuana law, but it’s not expected to be enforced

Staff writerDecember 15, 2013 

Supporters of legalized marijuana say an ordinance blocking licensed marijuana operations in unincorporated Pierce County, approved last week by the County Council, will be challenged in court.

Tacoma lawyer Jay Berneburg said the measure will be struck down because the county has no authority to ban what state law allows.

“They want a battle,” Berneburg said. “They’re going to get one. They’re not going to win.”

Pierce County Prosecuting Attorney Mark Lindquist said the county will rely on federal law if it is sued.

“This is new territory, and we are aware there may well be legal challenges to the ordinance,” Lindquist said. “The county expects to rely on the supremacy of federal law as a defense.”

The County Council voted Tuesday to override County Executive Pat McCarthy’s veto of the council’s marijuana ordinance.

The override means the county has indefinitely banned recreational pot businesses from unincorporated areas, even if they’re granted a state license. Only if Congress were to remove marijuana from the list of federally controlled substances would the county allow those businesses to open in limited zones.

The council sided with upholding the federal prohibition against marijuana, even though Washington voters approved Initiative 502 last year legalizing the recreational use of marijuana.

McCarthy said she vetoed the ordinance because of the legal risk it poses and because the state is going to issue licenses.

Berneburg and marijuana reform proponent Keith Henson both say the county has no authority to defy state law.

“Their obligation is to follow the state law,” said Henson, director of the Pierce County chapter of the National Organization for the Reform of Marijuana Laws. “The courts will decide now.”

Berneburg said he expects the county will find itself in a legal battle with the state or a number of applicants.

The state Liquor Control Board says it will start issuing licenses for marijuana businesses in March.

Washington Attorney General Bob Ferguson is expected to issue an opinion in the next few weeks on whether local governments can ban or enact de facto bans on pot businesses.

Berneburg outlined several scenarios:

• Depending upon Ferguson’s opinion, the state could sue the county for violating state law.

• One or more license holders could sue the county for refusing to permit marijuana operations.

• License holders could take no legal action, apply for permits and open up their businesses without one.

Council attorney Susan Long has said the county could cite and shut down marijuana businesses that violate county code.

Berneburg said license holders could challenge any citations.

Henson said the most likely scenario is that a license holder will sue when the county denies a permit to operate, and the license holder will prevail in state court.

Because of the council’s action, “people have to fight for what is rightfully theirs, which is the opportunity to operate a business under the law,” Henson said. “It’s very disappointing.”

Lindquist acknowledged the objections.

“Marijuana was legalized under state law by initiative, yet marijuana remains a Schedule 1 controlled substance under federal law,” the county prosecutor said. “This complicates the legal situation for state and local governments, and we expect some of the issues will need to be resolved in court.”

Berneburg said he represents about 30 applicants seeking licenses to operate recreational marijuana businesses in Pierce County. Each one has said they will likely sue the county if they’re denied a permit, Berneburg said.

He said he also represents at least 100 medical marijuana providers in Pierce County.

One of those is Green Collar Club, a collective garden for medical marijuana in Parkland. Green Collar has applied for one of the 17 retail licenses the state has set aside for the unincorporated area.

An unlimited number of growers and processors of pot can also qualify for licenses.

The News Tribune asked to talk to one of Green Collar’s co-owners for reaction to the council’s ordinance. The newspaper’s inquiry was referred to their attorney.

“They don’t want to call attention to themselves,” Berneburg said.

Councilman Doug Richardson said last week he wants the county to ask a federal court to decide whether the federal prohibition of pot takes precedence over the state’s law legalizing recreational marijuana.

Berneburg described that request as “a joke.”

“The federal government is not going to engage,” he said.

But Berneburg said the council could interpret inaction as reinforcement that the federal prohibition remains in place.

In her veto message to the council, McCarthy noted the federal government has already said it won’t contest the state’s law.

“Yes, the state law is in conflict with the federal law, but the U.S. Department of Justice in August announced it is not going to challenge the state law at this time,” McCarthy said. “The county is an entity of the state, and we cannot pass an ordinance that is in conflict with the state.”

Steve Maynard: 253-597-8647
steve.maynard@thenewstribune.com
@TNTstevemaynard

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