Counselors,

I am reviewing medical marijuana ordinances and am trying to find any published or unpublished decisions from any Oklahoma court ruling on or addressing challenges to the validity of any municipal ordinances regarding medical marijuana.  If you are aware of any cases I would appreciate receiving a copy of the decision.  If you are aware of any challenges that were resolved short of a court ruling, I would appreciate receiving any anecdotal information you would be willing to share.

Also, if any municipality has used either special use permits or conditional use permits as the process for obtaining medical marijuana licenses, I would appreciate hearing how those processes have worked in your city and whether, as part of that process, your city has incorporated among the factors to review the distances from specified activities (schools, churches, etc.) and allowed for adjustment of those distances based on the specific facts relating to each application.

Thanks in advance.

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Road N., Suite B
P.O. Box 546
Piedmont, Oklahoma  73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

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Here is a list of Oklahoma cases I was keeping at one point, not sure of current status as its not been updated in some time:

Gregg, et al. v. State of Oklahoma (Cleveland County, CV-2018-1415, filed 7/13/18):
Dismissed by Court on 1/2/19.

Cloudi Mornings, et al. v. The City of Broken Arrow, et al. (Tulsa County, CV-2018-1213, filed 9/25/18; Okla. Supreme Ct, DF-117500, appeal initiated 10/31/2018):

•      Plaintiffs' Counsel: Ron Durbin
  

•      Plaintiffs: business and business owner
  

•      Claims: declaratory judgment for violation of Open Meetings Act, ordinance beyond municipal power/invalid, temporary restraining order
  

•      Status: TRO entered 9/28/2018; Final Declaratory Judgment entered 10/17/18, a counter-designation of record was filed on 11/21/18. Broken Arrow submitted Brief in Chief on 3/14/19, Appellees replied on 4/25 and Broken Arrow responded on 5/15.  Record Received by OK Supreme Court.
  

Sooner Green, et al. v. City of Sulphur (Murray County, CV-2018-46, filed 10/02/18):

•      Plaintiffs' Counsel: Darryl Roberts, Jason May
  

•      Plaintiffs: grower and individual owner of grower
  

•      Claims: declaratory judgment that ordinance is beyond municipal power/invalid
  

•      Status: EOA filed by City on 10/23 (Philip Hurst), Answer not timely filed (due 11/13/18), Motion for Default filed and set for hearing December 10, 2018 at 1:30p. Court held Motion in abeyance at the 12/10/18 hearing, giving Defendant 10 days to file response. Response to Petition for Declaratory Judgment filed on 12/21/18. The Response states the City repealed the previous ordinance and unanimously passed the medical marijuana statutes passed by the OK legislature. No change.
  

Hodge v. City of Yukon (Canadian County, CV-2018-326, filed 10/03/18):

•      Plaintiff's Counsel: Rachel Bussett, Greg Lavendar, Rachel Farrar
  

•      Plaintiff: Patient
  

•      Claims: Declaratory judgment for violation of Open Meetings Act or beyond municipal power/invalid
  

•      Status: Court heard Defendant's Motion to Dismiss for Insufficiency of Process and Plaintiff's Motion for Preliminary Injunction on 2/14/19. Motion to Dismiss denied as moot and the court requested further briefing on Motion for Preliminary Injunction. On 4/15/19 the court filed order granting in part and denying in part Plaintiff's Motion for Declaratory Judgement.  The order granted Plaintiff's motion enjoining the City from enforcing parts of the Ordinance since the City had announced that it will not enforce those provisions and did not defend their validity in the post-hearing brief. The order denied the injunction on the remaining provisions of the Ordinance, holding that the passage of State Question 788 did not wholly deprive City of its regulatory police powers.
  

Malone, et al v. City of Tulsa (Tulsa County, CV-2018-1243, filed 10/04/18):

•      Plaintiff's Counsel:  Bussett/Lavendar/Farrar, and Collin Rockett
  

•      Plaintiffs: Dispensary and individual owners
  

•      Claims: Declaratory judgment that ordinance is beyond municipal authority/invalid
  

•      Status: No EOAs or answer filed, no indication service has been accomplished; no TRO or other hearings set.
  

•      Additional Info:  Tulsa Marijuana Ordinance not passed, suit filed following first reading.  Tulsa Ordinance pass on second and final reading at 11/28/18 meeting.  Between first and second reading, a Motion for a moratorium on acceptance/processing of Marijuana Grower/Processor applications placed on agenda, with no action taken, ultimately pulled entirely.  No change to civil suit since passage by Tulsa of ordinance. No change, but administratively reassigned by AOC.
  

Vargas v. City of Weatherford (Custer County, CV-2018-102, filed 10/17/18):

•      Plaintiffs' Counsel: Ron Durbin
  

•      Plaintiffs: business and business owners
  

•      Claims: Declaratory judgment that ordinance is beyond municipal authority/invalid; emergency temporary injunction
  

•      Status: Motion for emergency temporary injunction set for 11/19/18 at 9:30a, hearing occurred and Defendant's legal counsel confirmed a ruling in favor of Defendants, denial of TRO/Temp. Injunction, commented that court considered and rejected a ruling similar to that in Broken Arrow case, and believed the current applicable statutes regarding medical marijuana regulation acknowledged a municipality's right to zone. Case is stayed until 7/22/19 and parties are scheduled to appear for a status conference on that day.
  

Caulfield Holdings Botanicals, LTD. v. State of Oklahoma (Oklahoma County, CJ-2018-5746, filed 10/19/2018):

•      Plaintiff's Counsel: Ron Durbin
  

•      Plaintiffs: Business and business owners (One of the plaintiffs (Vargas) is the same party in the Weatherford suit)
  

•      Claims: Class action petition seeking declaration that (1) licensees are only subject to registration requirements found in 63 O.S. § 420(A) and imposed by OMMA, not those imposed by OBN; (2) that licensees are not subject to taxation by the OTC over the 7% provided in the statute; and (3) all taxes already paid in excess of the 7% be refunded.
  

•      Status: Defendant's motion to dismiss filed on 11/15/18 and Plaintiff was given until 2/1/2019 to file response but it has not been filed. Last activity was on 1/11/19 when the case was administratively reassigned by AOC.
  

The only hard ruling I knew of was the Cloudi case and that is no longer an issue.  The City of Norman created Medical Marijuana uses for zoning that were identical to the state definition of each license category.  Eventually, the City of Norman opted to divide Processors into three tiers, Tier I and Tier II are non-extraction processing, and Tier III includes all processing activities.  Tier I and Tier II (joint rolling and adding pre-extracted substances to make a derivitave product, such as baked goods), are allowed in commercial areas with Dispensaries.  Our licensure is separate of zoning, but necessary, and we avoid duplication of fees for licensees that need both Dispensary and TierI/TierII Processor licenses.  Applicants must also have a state license.  We are still relying on state licensure categories and definitions for the scope and parameter of our licensure and zoning uses.

Here is a link to the City of Norman Code, Ch. 13 is our business licensure: https://library.municode.com/ok/norman/codes/code_of_ordinances?nodeId=COOR_CH13LIOC_ARTIADGELIPR .  Here is a link to the City of Norman Zoning Ordinance, where you see our placement of Medical Marijuana uses in various zoning districts: https://www.normanok.gov/your-government/departments/planning-and-community-development/planning-and-zoning/zoning-ordinance.

There are allowed medical marijuana uses in most districts (except residential - we do not regulate patient licensing at all, of course), and in some districts a special use permit is an option.  We have no distance requirements in addition to those set by the state and generally leave it to the state to enforce and determine compliance with those parameters.  Our special use applications typically involve discussion of what measures an applicant takes to employ security measures or odor-control measures, but at this time our ordinance does not have specific mandates in that regard, it remains a function of state rules and nuisance law.

Not sure if this is what you need, but I hope it's helpful.

Beth Muckala
Assistant City Attorney

From: Oama oama-bounces@lists.imla.org On Behalf Of Jon Miller
Sent: Wednesday, January 20, 2021 4:12 PM
To: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] MEDICAL MARIJUANA UPDATES

Counselors,

I am reviewing medical marijuana ordinances and am trying to find any published or unpublished decisions from any Oklahoma court ruling on or addressing challenges to the validity of any municipal ordinances regarding medical marijuana.  If you are aware of any cases I would appreciate receiving a copy of the decision.  If you are aware of any challenges that were resolved short of a court ruling, I would appreciate receiving any anecdotal information you would be willing to share.

Also, if any municipality has used either special use permits or conditional use permits as the process for obtaining medical marijuana licenses, I would appreciate hearing how those processes have worked in your city and whether, as part of that process, your city has incorporated among the factors to review the distances from specified activities (schools, churches, etc.) and allowed for adjustment of those distances based on the specific facts relating to each application.

Thanks in advance.

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Road N., Suite B
P.O. Box 546
Piedmont, Oklahoma  73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.