Pubdate: Wed, 27 Sep 2017
Source: Providence Journal, The (RI)
Copyright: 2017 The Providence Journal Company
Author: Tom Mooney


PROVIDENCE, R.I. - A Superior Court judge issued a preliminary
injunction Wednesday preventing the town of Smithfield from enforcing
a recent amendment to its zoning ordinance that restricted the
cultivation and distribution of medical marijuana.

In his decision, Superior Court Associate Justice Richard A. Licht
questioned whether local communities had the power to regulate
"small-scale" medical marijuana cultivation under its zoning
authority, which traditionally has been used to determine land use.

In April, the Smithfield Town Council passed an ordinance that limits
licensed medical marijuana patients to two mature plants and two
seedlings, and only at a patient's primary residence. Rhode Island law
specifically allows for the cultivation of 12 mature plants and
outlines where medical marijuana can be grown.

At the time of the ordinance's passage, Smithfield Town Solicitor
Edmund Alves said the council had been influenced by various safety
concerns and a presentation from the attorney general's office urging
the town to oppose an expansion of marijuana production.

The American Civil Liberties Union of Rhode Island filed the lawsuit
in June on behalf of two licensed medical marijuana patients and the
Rhode Island Patient Advocacy Coalition (RIPAC), a medical marijuana
educational group, saying the new ordinance infringed on rights
allowed under state law.

Steven Brown, executive director of the ACLU of RI, said, Smithfield's
ordinance was an obvious attempt to undermine the state law that
recognized the legitimacy of medical marijuana and to "make it
extremely difficult, if not impossible, for many of those who lawfully
use medical marijuana to treat their conditions."

The ordinance also requires patients to disclose their identity to a
number of municipal authorities, which, the suit argues, is almost
certain to undermine their right to confidentiality under the law.

In his decision, Licht said a review of town council minutes showed
that the town police chief and others feared excess medical marijuana
would be sold illegally and arbitrarily determined that two marijuana
plants would be sufficient for any patient.

"There is no evidence in this record or known to the court that
supports a claim that two plants is sufficient for a patient's use,"
Licht said.

Given that the state was passed "to protect the health of those with
debilitating medical conditions, the court hopes that the town was
acting on more than a hunch when it decided to alter the protections
granted to [medical marijuana] cardholders by the General Assembly."

Moreover, said Licht, "there is no precedent of which the court is
aware that says zoning ordinances are to be drafted as crime
prevention tools. ...If that were the case, a municipality could use
its zoning ordinance to eliminate banks as they are susceptible to
robbery or prohibit pharmacies from dispensing opioids because of the
health threat they pose."

RIPAC director JoAnne Leppanen said Wednesday: "The Smithfield ordinance 
was based on misinformation and prejudice. It was enacted by a council 
more concerned with an anti-marijuana agenda than the health of its
most fragile and vulnerable residents, the facts, or the law. It has 
inflicted stress, fear and suffering on law abiding patients struggling 
to cope with debilitating medical conditions. We are grateful that
the town will now be required to abide by the state law."
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