Maryland AG’s Office: Local Governments Preempted From Banning Medical Cannabis Facilities

In response to a request from Senate Judicial Proceedings Committee Chair Robert “Bobby” Zirkin, the Maryland Attorney General’s Office (OAG) issued a letter of advice on September 22, 2015, stating that local governments were preempted by the State’s medical cannabis law from banning growing and processing facilities, dispensaries, or the proper possession or use of medical cannabis within a local government’s jurisdiction. A letter of advice is not legally binding, but represents a preliminary  judgment by OAG on a legal question.  In the letter, Deputy Counsel to the General Assembly Kathryn Rowe wrote:

Where State law does not regulate a specific drug, local jurisdictions are free to do so.  Letter to the Honorable James N. Mathias from then Counsel to the General Assembly Dan Friedman dated July 22, 2009 (Ocean City may regulate the possession and sale of salvia divinorum within city limits). The laws on medical marijuana, in contrast, specifically authorize entities registered and licensed under its provisions to perform certain acts related to medical marijuana, from use and possession to manufacture and sale.  Health – General Article (“HG”), §§ 13-3304 through 13-3311. Furthermore, the law expressly states that persons who act under the authority of the law “may not be subject to arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of cannabis.” HG § 13-3313(a). Because State law expressly permits these activities, a local jurisdiction may not prohibit them, and any ordinance that attempted to impose penalties for them would be preempted.  See Ter Beek v. City of Wyoming, 823 N.W.2d 864 (Mich. App. 2012).

As previously reported on Conduit Street, Anne Arundel County Executive Steve Schuh has proposed local legislation that would prohibit medical cannabis facilities in the county.  Zirkin’s request to the OAG was in response to Schuh’s proposal and Zirkin intends to introduce legislation during the 2016 Session to explicitly prohibit a county from enacting such a ban. A September 23 Daily Record article provided further comment Zirkin, the Anne Arundel County Executive’s Office, and MACo:

“Anne Arundel County could go forward and pass an illegal law, it will just be struck down by the courts,” said Zirkin. “The end is fairly obvious, and it’s a waste of time and taxpayer money.” …

Owen McEvoy, a spokesman for Schuh, said the law proposed by the first-term Republican county executive is legal.

“The senator should more closely read the law he helped write,” McEvoy said. “It’s the opinion of our office of law that we can do this because we are doing it through zoning and planning law.” …

[Medical cannabis] was the subject of a well-attended seminar during the Maryland Association of Counties summer convention last month in Ocean City.

Les Knapp, legal and policy counsel for the association, said counties have longstanding legal authority over land use issues and have right to set reasonable zoning regulations as it pertains to the location and setback requirements of medical cannabis facilities. The association has historically opposed attempts by the state to usurp local land use authority.

“The state law doesn’t specifically prohibit that but there is a question about preemption that would need to be worked out though if a county were to ultimately go through with a ban,” Knapp said.

A September 23 Capital Gazette article noted that the Anne Arundel County Council is also considering a separate bill that would set zoning requirements on where medical cannabis facilities can be located, similar to what was recently adopted in Baltimore County.

Under provisions of that bill, the growing, processing and dispensing of medical marijuana would be prevented within 1,000 feet of a public or private elementary, middle or high school. It would also limit dispensaries from operating 2,500 feet within one another.

Similar mechanisms were passed by the Baltimore County Council this month, except Anne Arundel would double the distance from schools.

Prior Conduit Street Coverage on Medical Cannabis