Reporter’s note: Both complaints can be viewed above. The lawsuit against Bonney Lake is first, followed by the lawsuit against Deputy Mayor Dan Swatman.
Just when the city of Bonney Lake thought it saw the end of the marijuana debate, a potential marijuana retail store is ready to reignite the argument.
The city officially banned licensed marijuana growers, processors and retailers from operating in the city on Jan. 13 (Ordinance No. 1502 [D15-08A]).
On March 25, 4Ever Healing LLC’s owner Saranjit Bassi and THC Law Firm attorney Chris Crew filed a lawsuit against Bonney Lake in Pierce County Superior Court in an attempt to reverse the city’s decision.
This lawsuit is the latest of many that have attempted to reverse several city and county decisions to ban marijuana businesses.
Bans in the cities of Fife, Kennewick and Wenatchee have been upheld by courts in Washington, as well as Pierce and Clark counties, according to the Office of the Attorney General.
However, Crew said his arguments differ from the ones already made in those cases.
“A big difference between our lawsuit and the ones that have failed in Fife and Wenatchee and the county is they were not going for the takings argument,” Crew said after the Jan. 13 council meeting, explaining the city should pay Bassi for not allowing his businesses in the city. “They also were not going for the Bill of Attainder argument.”
Crew also filed a separate lawsuit against Deputy Mayor Dan Swatman on the same date citing unconstitutional conduct during the Jan. 13 meeting.
Both lawsuits are scheduled for hearings on July 17.
State law preempts city’s ban
The lawsuit against Bonney Lake relies on several different arguments as to why the city can’t ban marijuana businesses.
The complaint argues Bonney Lake’s ban on marijuana businesses is in conflict with state law and Initiative 502, and state law trumps, or preempts, the local ban.
“Neither I-502, Revised Code of Washington (RCW) 69.50 or Washington Administrative Code (WAC) 314-55 contains provisions authorizing cities or counties to opt out of the production, processing or retailing of marijuana,” the complaint reads.
However, Washington state Attorney General Bob Ferguson’s opinion on I-502, released on Jan. 16 2014, disagrees with the complaint’s claims.
Ferguson wrote, “Under Washington law, there is a strong presumption against finding that state law preempts local ordinances,” and I-502 “includes no clear indication” that state law to preempts local authority to regulate businesses.
In a statement released on Aug. 29 2014, Ferguson said, “The drafters of Initiative 502 could have required local jurisdictions to allow the sale of recreational marijuana. It could have been done in a single sentence, but it was not,” further strengthening his argument.
Another argument is the city of Bonney Lake did not file written objections with the Washington State Liquor Control Board toward Bassi’s marijuana business license, as per RCW 69.50.331(7)(b).
The code states written objections shall include a statement of all facts for why the city objects to a licensed marijuana business.
When the complaint is received, the Liquor Control Board would hold a hearing to grant or deny the marijuana business license. Either parties involved in the hearing can appeal this initial decision.
However, The Liquor Control Board, “has no authority to dictate zoning requirements to local governments,” the LCB wrote on a FAQ webpage about I-502, potentially giving weight to Bonney Lake’s ban. “Municipalities could conceivably zone marijuana/related businesses out of their geographical area.”
Kathleen Haggard, who represent the city of Bonney Lake in this lawsuit, agreed with the LCB and said the city wasn’t objecting to Bassi’s marijuana businesses license, but to marijuana businesses in general.
“Even if you do get a license from the liquor control board, you still have to comply with local zoning requirements,” Haggard said.
Finally, the lawsuit argues that by banning 4Ever Healing from operating in Bonney Lake is a bill of attainder in violation of both the Washington state and US Constitution.
Article 1 Section 10 of the US Constitution prohibits states from passing “any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.”
A bill of attainder is a bill or law that has a negative effect on a single person or group without a trial.
Because only one retail license was awarded to the city of Bonney Lake by the Liquor Control Board during the marijuana retail lottery, the lawsuit argues the city’s ban on marijuana businesses “specifically targets Saranjit Bassi and 4Ever Healing LLC,” and is a bill of attainder in violation of the Constitution.
The lawsuit asks for $1 million for just compensation to Bassi and to allow 4Ever Healing to operate in the city.
Kathleen Haggard, who will be representing the city, said the council’s decision to ban marijuana businesses is on strong legal ground.
“There have been half a dozen court decisions already that have upheld local bans on marijuana businesses,” Haggard said. “We’re not in any different position than any of those cities and counties that have had their bans upheld.”
Unconstitutional conduct at city council
The second lawsuit, filed by Crew, who is representing himself, argues that Swatman acted unconstitutionally during the Jan. 13 council, and the city is liable for his behavior.
During the citizen comment portion of the meeting, several people spoke in favor of a marijuana retail store, including Bassi and his business partner Zakaria Hazrat.
Crew was the last person to speak during the citizen comment period.
After giving his name to the council, Crew said, “I’m an attorney for Mr. Bassi and (Bassi’s business partner) Mr. Hazrat, the plaintiffs.”
Crew spoke for five minutes on why the city should not ban marijuana retail stores when he was interrupted by the five minute timer.
Crew asked for an additional five minutes, and Swatman, who ran the council in Bonney Lake Mayor Johnson’s absence, said, “If you are speaking for a group, you did not identify that when you started.”
Swatman did not let Crew continue his presentation.
(For the meeting audio file, click here. Crew begins to speak 23 minutes into the meeting.)
Crew’s lawsuit argues that while residents or speakers representing themselves may have five minutes to speak during the council’s citizen comment period, “representatives recognized by the chair who are speaking on behalf of a group may have a total of 10 minutes to speak,” quoting section II (B) of the city’s meeting agenda for the night.
Crew claims in the lawsuit he was denied his first amendment rights because Swatman disagreed with his viewpoints on marijuana businesses.
The lawsuit also argues the council’s decision to enact a marijuana business ban was affected by Crew’s inability to continue representing his clients.
Because of this, the lawsuit asks the court to rule Bonney Lake cannot continue its ban on licensed marijuana businesses.
In a later interview, Swatman disagreed with Crew’s argument that he represented a group of people, because the group Crew represented already spoke individually before Crew went up to speak.
“He was trying to double-dip the system,” Swatman said. “You don’t get all of the people to come up there individually and take their five minutes and then you come up and say, ‘I represent these people that have already spoken and I want my 10 minutes.’”
“It is so the meeting can progress in order and keep the flow of the meeting going,” Swatman said.
At time of press, the lawsuit against Swatman had not been served.
Reach Ray Still at email@example.com or 360-825-2555 ext. 5058. Follow him on Twitter @rayscottstill for more news, pictures and local events.