Attorney General Bob Ferguson gets his day in court (of course, he gets a lot of days in court).
  • Image courtesy Attorney General's Office
  • Attorney General Bob Ferguson gets his day in court (of course, he gets a lot of days in court).
A small city in Washington State is legally justified in banning pot stores, even though pot stores are legally allowed under state law, according to a Pierce County judge's decision this afternoon. The Associated Press reports that a would-be store owner, who was banned from opening a shop by the city of Fife and filed the lawsuit, says he plans to appeal the decision. However, if today's ruling holds at the state supreme court, this could mean cities throughout the state have a green light to ban legal marijuana businesses.

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Is this the lamest thing ever?

It depends who you ask. Alison Holcomb, who wrote pot-legalization Initiative 502 and is currently the drug policy director of the state's ACLU chapter, recently discussed this issue with The Stranger. She warned that upholding the city council's ban in Fife would allow every local jurisdiction in the state to ban marijuana businesses. "If you carry that to its logical conclusion," Holcomb said, "every city and county in the state could ban marijuana businesses and then render Initiative 502 a nullity." The AP's Gene Johnson adds in his reporting, "28 cities and two counties have banned pot shops, and scores more have issued long-running moratoriums preventing the stores from opening while officials review zoning and other issues."

But on the other side, Attorney General Bob Ferguson—who helped defend the city of Fife—said in an interview earlier this month that stoners should actually rejoice in a ruling like this one. Sound counter-intuitive? He contended that the initiative passed by voters in 2012 doesn't explicitly prevent cities from banning pot businesses, and, as a result, any attempt to force pot stores upon those cities will lead to larger court battle. Officials in Fife argue that marijuana remains a federal offense, and that, in essence, allowing pot stores creates a conflict with the Controlled Substances Act passed by Congress. To follow Ferguson's logic here, allowing cities to ban pot businesses avoids a larger court battle that could "eviscerate" the entire marijuana law—in Washington and possibly other states. That sort of federal ruling would render the state-based legalization strategy moot, leaving future pot-law reform up to Congress, where legalization efforts have languished since the 1970s.

"If we are correct that local jurisdictions can ban marijuana, then the court never needs to reach the issue of whether federal law preempts Washington State law regarding the legalization of marijuana," said AG Ferguson. He said he is "intervening to uphold" legalization.

But Holcomb doesn't buy it. She says a federal challenge to state-based pot legalization in inevitable.

"I just don't see how you avoid the federal preemption question," said Holcomb, a lawyer herself with a career under her belt litigating drug cases. "Ferguson has given cities and counties more reason to adopt bans in place like Pierce County, which is actually doing more to invite the federal preemption litigation, because that will frustrate more license applicants." Stay tuned to this case.