Just about every day, another city or county in a marijuana state enacts an all-out ban on any type of marijuana commercial activity, whether it’s medical or recreational. Though we love fighting/suing these retrograde cities and counties at every turn, we also know how expensive and time consuming those fights can be for our cannabis clients.
Why are these bans happening? Do these cities and counties have the power to prohibit marijuana sales when the State says they can take place? And what happens with these bans when the courts get involved?
These bans primarily have two legal origins. Some come from state law provisions that explicitly allow cities and counties to opt out of marijuana implementation. Others come from the general police powers state constitutions usually grant cities and counties to regulate for the health, welfare, and safety of their own city/county citizens. For example, just last week, the State of Oregon decided that cities and counties can opt out of Oregon’s newly revised dispensary laws for at least a year if they so choose, and some Oregon cities and counties are doing exactly that. In Washington State, it is not clear whether cites and counties can legally forego adopting local recreational marijuana laws after passage of I-502, legalizing recreational marijuana. Though Washington’s Attorney General formally opined that cities and counties can refuse to participate in I-502, that opinion is not the law. As a result, some cities and counties in Washington are relying on their police powers to zone adult-use marijuana out of town. Only time (and litigation) will tell if those bans will hold up over time.
There’s a third (alleged) legal and political source for these bans: the current federal prohibition against marijuana. Meaning, some cities and counties seek to ban marijuana because it is still federally illegal. These cities and counties argue that no state law can force them to violate federal law. These bans are the most susceptible to legal attack because cities and counties cannot enforce federal law unless their State has authorized them to do so.
A few years ago, in a case we brought against a city on behalf of an MMJ cooperative, a police officer testified that the city should be able to ban MMJ activity altogether because the medibles it was selling were unregulated, and thus inherently unsafe. We turned this officer’s testimony on its head by getting him to admit that his city allowed a large and completely unregulated farmers market every week and that as far as he knew nobody had ever taken sick from that and the city had no plans to shut it down.
How are courts dealing with these local bans? California’s Supreme Court has held that cities and counties can ban medical marijuana facilities outright. Michigan’s Supreme Court ruled that dispensaries are illegal, though the State itself has ruled that municipalities cannot ban the personal use of medical marijuana. Washington’s Court of Appeals allowed a ban on MMJ dispensaries and collective gardens but this was probably due to its also finding that medical marijuana remains a criminal activity in Washington (this was before Washington legalized recreational marijuana).
What can you do if your city or county enacts seeks to ban the cultivation, processing, or dispensing of marijuana? You have the following options:
- Fight. Realize that you will almost certainly lose at the lower, more local levels, and be ready to have to keep going higher in the court system before you will have a real shot at winning. This means that this sort of fight is not going to be either fast or cheap, but this also means that if you do prevail, you will be establishing some great precedent for the marijuana industry as a whole. In some instances, your facility stays open during the entire long fight.
- Wait it out. You can try to wait out the moratorium/ban, hoping it will go away. If you do this, you are risking that the city or county will do nothing on the issue.
- Lobby. You can try to lobby for a change in the city or county law. Like litigation, this can be lengthy and expensive, but it also sometimes works.
- Move. Relocating your marijuana facility may be your best option. Then again, it may not.
The best offense is the best defense and that means you need to stay in tune with the political pulse in your city and county and if you get wind of a possible ban, you should immediately do whatever you can to prevent it. Local bans often pop up very quickly, with little warning or logic, so be ready.