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State Court of Appeals affirms city of Kent's authority to ban medical marijuana businesses

Kent Mayor Suzette Cooke celebrated the state Court of Appeals decision to affirm the city's authority to prohibit medical marijuana collective gardens from operating in the city.

"We got the word from the court on their decision and we won," Cooke said at the City Council meeting on Tuesday night.

John Worthington, of Renton, one of the plaintiffs who sued the city in 2012 after the council voted 4-3 to ban medical marijuana collective gardens, said he would appeal the ruling.

"I'm going to ask them to modify the ruling to distinguish between commercial and noncommercial," Worthington said in a voice mail. "They overreacted and banned legal activity by people in their homes who have residential collective gardens by painting this broad brush because of what commercial gardens did."

The Court of Appeals ruled Monday that medical marijuana use, including participation in collective gardens, is illegal in the state.

The King County Superior Court ruled in October 2012 that the council had the authority to ban medical marijuana collective gardens. The challengers then appealed, arguing the city’s prohibition was in conflict with state laws regulating medical marijuana.

Kent’s Acting City Attorney, Pat Fitzpatrick, said he is pleased with the outcome. Fitzpatrick argued the case in February before the Court of Appeals.

“This case is as much about a local jurisdiction’s legislative authority as it is about medical marijuana," Fitzpatrick said in a prepared statement.   "What may be right for Seattle may not be right for Kent, or other Washington cities or towns that face unique challenges.

“When determining which land uses are or are not appropriate, it makes sense that city councils, which are more in tune with the needs and challenges of the city or town, should make those decisions.”

The Legislature attempted to legalize medical marijuana through a tightly regulated registry system in 2011, but vetoes by then Gov. Chris Gregoire rendered legalization of medical marijuana ineffective.

“That’s exactly why the city’s prohibition on medical marijuana collective gardens is allowed; because the city ordinance prohibits an activity that is also prohibited under state law," Fitzpatrick said. ”As the Court of Appeals affirmed, medical marijuana is still not legal under state or federal law. Any state law that requires a city to authorize marijuana land uses that violate federal law will create significant legal obstacles and challenges.”

Deryck Tsang, who owns a Kent medical marijuana collective garden and also is a plaintiff in the lawsuit, continues to operate under a stay granted in December 2012 by the state Supreme Court.

Cooke asked Fitzpatrick at the council meeting if the city can now shut down the operation.

Fitzpatrick said with the stay and the expected appeal of the Court of Appeals ruling the business would be able to stay open.

This case is separate from the city's ban against recreational marijuana businesses, which the state allows. City officials plan to change land use codes this year in order to have a permanent ban against marijuana businesses rather than an ordinance with a six-month ban. The city's Land Use and Planning Board will consider the code changes before submitting them to the council.

Tsang is one of numerous people who have applied to operate a recreational marijuana retail business in Kent. The state's recreational marijuana law doesn't address medical marijuana.

The state Liquor Control Board plans to issue recreational marijuana licenses in July.

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