Cities can’t dodge marijuana law forever

“I told you that if you passed this ban I would sue you … And here we are tonight,” was as far as Cannabis Action Coalition (CAC) Director Steve Sarich got before a packed house erupted in Kent City Hall on June 5.

The crowd cheered at that moment as Poppy Sidhu walked up to the mayor of Kent and served her with a lawsuit. The suit names the mayor, the City Council and the city of Kent.

The crowd cheered at that moment because Poppy Sidhu, dressed in a purple Cannabis Action Coalition t-shirt, walked up from her seat to serve Kent Mayor Suzette Cooke with a lawsuit. The suit names the Mayor, the City Council and the City of Kent. The suit was served just minutes before the council voted to ban collective gardens, and access points, with a vote of 4-3. The ban criminalizes the two area access points, and will force local patients into a black-market situation. For Sarich and the CAC, there was little option other than a lawsuit.

“We had discussed (a lawsuit) for months, as soon as they started passing moratoriums,” Sarich said. “I think what was finally the tipping point was an article I read in Pasco where the city said, ‘Well, it must be legal because nobody’s sued us so far.’ I said, now they’re gloating because they haven’t been sued. It’s time.”

The 20-page suit is the result of the moratorium and following ban, but the heart of the issue has nothing to do with medical marijuana. It’s about the law.

“The fact that they are illegally preempting state law is the reason they’re being sued,” Sarich said. “The only section of the law that mentions collective gardens — it only appears in one section: section 085, which does not grant any power to the cities and municipalities to regulate medical marijuana (MMJ) in any way (including zoning) or banning them. And the moratoriums are a form of the ban, a rolling ban because they keep renewing them. That is absolutely preempting state law.”

Several prominent examples exist of cities losing lawsuits when trying to ignore state law. In 2008, the city of Seattle tried to ban guns from parks. This contradicted state law, and the state Supreme Court struck the ban down in 2010. This case law can also be found in a case in which the city of Chelan tried to ban jetskis by issuing moratoriums against their use. Again, state law won and the city was forced to remove their ordinance.

The cities and municipalities only have the right to take action that is specifically allowed by the state.

If the state law says something can be done, the cities can’t say, “Oh, no, they can’t.”

It’s that simple.

A growing number of cities have moratoriums or outright bans on access points, including several that this article and the coalition are focusing on. Those cities are Kent, Everett, Maple Valley and Pasco. The first three all have or have had access points operate within city limits.

In Everett, things haven’t been so simple. A city council meeting on June 20 saw the city attorney advising for an extension of the moratorium. Sarich was there along with co-author of the Kent suit Arthur West, who spoke to the council.

West reminded the city of its duty after the city attorney claimed that the city was obligated to uphold federal law. He also addressed the release of a memo advising cities on how to enforce MMJ bans.

“The AWC (Association of Washington Cities) has provided a road map telling cities that when they adopt bans they should color them as moratoria and use the excuse that they’re studying,” West said. “This is consistent with a pattern of false representation to justify bans. So you are in the middle of the pack … you’re lying like the AWC tells you to so that you can continue to ban medical marijuana.”

Further proof of the city punting the issue was presented by Jeremy Kelsey, director of Medical Marijuana Patients Network. MMPN is in Mukilteo after the current moratorium in Everett forced him to leave a Broadway location. Kelsey addressed the City Council.

“Some of you may remember me from last year. I went through nine months of planning with the city and building that facility on Broadway which in effect you forced me to close and relocate to Mukilteo,” Kelsey said. “I also filed for a freedom of information disclosure about this issue. I did that because I wanted to see where the planning department was (in regard to MMJ workplan) What shocked me the most is that I had a work plan dated July 27, 2011, a three-page document from the planning department about MMJ and that’s all I have from your city as of May 21, 2012. This is what an emergency moratorium gets you: A reminder to to get on the ball and figure some stuff out. This (three pages) doesn’t cut the mustard.”

Within the city, the same sentiment was felt by members of the planning commission.

“I’m struck by the fact this is the first time this has become before the Planning Commission,” said Commissioner Clair Olivers. “This was taken up by City Council in the form of an emergency ordinance a year ago, yet there’s been no staff report or workshop or any kind of activity until tonight’s outline was given to us.”

The city also presented their opinions through their attorney, who amongst other claims stated that he advised the moratorium be extended for another six months.

“One advantage to extending this moratorium is that it puts us in the middle of the pack,” said the Everett City Attorney in his address to the council. “It’s what most cities have done or are going to do.”

This information is consistent with the AWC memo telling cities to “study” the MMJ issue. In one calendar year, the Everett City Council came up with just three pages of documents. As public servants, they deserve an F for due diligence. Kelsey also pointed out potential malfeasance charges against the city officials for not doing their job, an issue Sarich is prepared to raise in Kent.

“We are considering filing malfeasance charges against the mayor and the council members who voted for the ban. Official misconduct means they can be removed from office for malfeasance. We are going to attempt to recall them and remove them from office.”

Moving forward

Whether it’s a big city such as Everett or a smaller one such as Pasco, the lawsuits are not being done for the traditional reasons.

“We are not in this lawsuit for money,” Sarich said of the Kent lawsuit. “We have not asked for any damages. They expect us (MMJ patients) to obey the law to the letter. So we are going to hold you to the same standard. They don’t like MMJ so they are looking for a way to ban us.

“All the city has to do is drop the illegal moratorium and the lawsuit will be dropped instantly. It’s pretty simple. Follow the state law and we won’t sue you. Break the state law and we will. There’s the message. I’ve said it at every city council meeting.”

About the author

Wes Abney is founder and editor of Northwest Leaf, a monthly magazine for medical marijuana patients in Washington state, founded in June 2010. Learn more:

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