by Sarah Lee Gossett Parrish, Cannabis Lawyer1
1 Information contained herein provides general information related to the law and does not provide legal advice. It is recommended that readers consult their personal lawyer if they want legal advice. No attorney-client or confidential relationship exists or is formed between you and Ms. Parrish as a result of this article.
2 The Unity Act lacks an emergency clause, so it will become effective ninety (90) days after the last day of this legislative session.
When Oklahoma citizens passed State Question 788 (“788”), they limited the authority of municipalities to enact ordinances to further regulate medical marijuana retail businesses. Specifically, 788 provides “[n]o city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment.” However, 788 is silent concerning municipal regulation of growers and processors, and does not prohibit cities from requiring additional licenses with fees. In the coming months, Oklahoma will likely see continued attempts by municipalities to cash in on cannabis.
Unity Act’s Provisions Concerning Municipalities
The Unity Act2 (“Unity” or “the Act”), codified as Section 427.8 of Title 63, provides “[m]unicipal and county governing bodies may not enact medical marijuana guidelines which restrict or interfere with the rights of a licensed patient or caregiver to possess, purchase, cultivate or transport medical marijuana” within the confines of 788 and the Act, and precludes municipalities from requiring patients or caregivers to obtain permits or licenses in addition to state-required licenses. Unity also prohibits ordinances that restrict the rights of patients and caregivers to own, purchase, and possess firearms and to possess marijuana for medicinal use. Further, it protects physicians who write medical marijuana recommendations from interference by municipalities to restrict or regulate same.
Unity allows municipalities to access criminal history records of applicants for relevant local licenses and permits, and states OMMA licenses “shall not be issued until all relevant local licenses and permits have been issued by the municipality, including but not limited to an occupancy permit or certificate of compliance”. However, the Act contemplates a one-year conditional license if “an applicant has not received the necessary permits, certificates or licenses from a municipality” but “has fulfilled all other obligations required” by the Act. The Act also recognizes OMMA’s and municipalities’ authority to grant exemptions to businesses as to compliance with the Oklahoma Uniform Building Code, the International Building Code, and the International Fire Code.
Litigation Challenging Ordinances
A review of litigation contesting municipal ordinances suggests cities should simply align the city code with state law. Many have done so, but several smaller municipalities have banned most commercial marijuana operations within their limits, and many such ordinances contain virtually identical boilerplate language.
Litigation challenging proposed or enacted ordinances involves, but is not limited to, these cities: 1) Broken Arrow (court struck down ordinance that levied $2,500 annual permit fee, classified dispensaries similarly to alcohol-related establishments and prohibited tenants from 2
growing their own marijuana without written permission from property owner); 2) Weatherford (ordinance challenged that prohibits dispensaries from staying open past 8 p.m. and locating on Main Street; restricts dispensaries to at least 1,000 feet from schools, child cares and other dispensaries and at least 500 feet from any museum or library; bans cultivation and processing operations; requires patients to abide by “all federal laws”); 3) Yukon (ordinance challenged that prohibits medical marijuana businesses from operating on Sundays or within 1,000 feet of schools, libraries, museums, playgrounds, child-care centers, churches, parks, public pools or other recreational facilities; any type of correctional center, halfway house or rehabilitation center; or another medical marijuana-related store; imposes annual permit fees of $600 for dispensaries and $240 for patients who grow in their homes); 4) Tulsa (proposed zoning code amendment [never adopted] challenged that required growing and processing facilities to be at least 1,000 feet from residential areas); and 5) Sulphur (lawsuit filed on basis of overregulation despite ordinance’s repeal on advice of counsel).
Municipalities that have aligned city ordinances to state law include, but are not limited to, Oklahoma City, Moore, Sand Springs, Stillwater, Enid, Bartlesville, Pawhuska (after rejecting an ordinance with strict regulations), and Midwest City.
Municipalities with ordinances adding regulations and/or requiring licenses or permits with additional fees, including same for patients who grow at home, include, but are not limited to, Muskogee, Sallisaw, Comanche, Woodward, Dickson, Ardmore, and Slaughterville.
What’s the Take-Away?
In the coming months, more municipalities will likely enact ordinances that impact medical marijuana patients, caregivers, and businesses, requiring additional licenses and attendant fees. However, pending litigation, the Unity Act, and the people’s will as expressed in S.Q. 788 should encourage these cities to conform such ordinances to state law, and to refrain from restrictive regulation and excessive license fees.