By Conrad Dudderar
Senior Staff Writer
Attorneys are due back in court next month to argue a lawsuit filed against Yukon over its new medical marijuana ordinance.
An evidentiary hearing had been set Jan. 28 before District Judge Paul Hesse in Canadian County District Court. But Yukon city attorney Gary Miller said Monday the hearing will be postponed until sometime in February at the plaintiff’s request.
“They’re asking for a temporary injunction to stop the City from enforcing the ordinance,” Miller said. “We believe it is a valid ordinance, and there’s no reason not to enforce it.”
The lawsuit was filed last fall by attorneys representing three plaintiffs individually and on behalf of their businesses, Charles Edward Bishop III of Castle Creek Farm LLC, Megan Dedmon of N8V Herb LLC and Jason Wesley Hodge of Yukon’s Best Cannabis Farms Inc.
The plaintiffs are represented by attorneys Collin W. Rockett and Rachel Bussett of Oklahoma City, and Gregory A. Lavender and Rachel L. Farrar of Tulsa. The defendant is represented by attorney John J. Love of Oklahoma City.
The lawsuit was filed against Yukon after the city council on Sept. 28 passed an ordinance restricting where medical marijuana dispensaries can locate inside city limits.
The ordinance states a retail marijuana establishment permit will not be granted to any applicant where the proposed location is within 300 feet of a museum, public playground, childcare center, church, public park, pool, recreation facility, halfway house, correctional facility, substance abuse treatment center, or another marijuana business; or 1,000 feet of any school or college.
The action stems from the passage of State Question 788, which provides for the legalization of the possession of marijuana for medical purposes. Oklahoma voters passed S.Q. 788 on June 26, 2018 by a 57 percent majority.
Yukon filed a motion to dismiss the lawsuit after claiming the mayor or city clerk were not properly served by a process server with notice of the lawsuit. Bussett, one of the plaintiff’s attorney, believes this issue has been corrected.
“We’ve tried to serve it numerous times,” Bussett said. “I’ve never had anyone who had service issues like this before. I had a new process server, and they apparently served the wrong person (at city hall). Attorneys can serve documents, except a petition, and so (the defendant) wanted a process server to serve them.”
Judge Hesse is set to rule on the motion to dismiss at the upcoming court hearing.
‘INFRINGING RIGHTS AND PRIVILEGES’
Yukon’s marijuana ordinance is an “invalid exercise” of the City of Yukon’s legislative authorities, according to the lawsuit.
Ordinance 1365 “clearly conflicts” with the language of SQ 788 by prohibiting the opening of a retail marijuana establishment “within nearly the entirely” of the City of Yukon, the suit alleges.
“As a result, defendant has infringed upon plaintiffs’ rights and privileges under SQ 788.”
Plaintiffs in this case are Canadian County residents who qualify or will qualify to be licensed medicinal marijuana business owners, according to the lawsuit. Hodge also has a state-issued medicinal marijuana patient license.
The plaintiffs, through their attorneys, claim that passage of Yukon’s marijuana ordinance has caused them and their businesses “injury and damages.”
They are seeking a declaratory judgment from the court that finds the ordinance enacted by the Yukon City Council is invalid and constitutes an “unauthorized exercise” of municipal regulated authority.
“The ordinance completely outlaws commercial marijuana growing facilities, wholesale marijuana facilities, marijuana storage facilities, and marijuana processing facilities,” according to the lawsuit. “For a patient licensee to grow medicinal marijuana in his or her residence for personal use, the ordinance requires, among many other things, that the patient licensee’s residence comply with arbitrary security requirements, prohibits medicinal marijuana from being grown outdoors, and dictates how the licensee may use his or her private residence.
“The ordinance explicitly makes the processes used in growing and consuming medicinal marijuana in one’s residence a public nuisance, and also allows for inspections of a patient licensee’s private residence.”
This would violate the plaintiffs’ rights to be free from unreasonable searches and seizures under the Oklahoma and U.S. constitutions, according to court documents.
The plaintiffs have asked that Yukon’s marijuana ordinance be declared void.
‘PROTECT HEALTH, WELFARE AND SAFETY’
Meanwhile, Yukon contends its actions were “reasonable, lawful exercises of its police powers to protect the health, welfare and safety of its citizens,” according to the city’s answer to the lawsuit.
“Requiring that retail businesses only be located in commercially zoned areas and subject to reasonable location restrictions, and that any operations which would implicate public safety, are matters of legitimate public interest.”
Yukon’s new ordinance does not unduly restrict or prevent plaintiffs from operating retail marijuana establishments in the city and does not impair the ability of any person possessing a medical marijuana license from using that substance, according to the defendant’s court-filed response.
The defendant responded to the plaintiff’s claim that the city’s ordinances would improperly restrict their ability to operate retail marijuana stores.
“This claim cannot stand. Zoning is a valid exercise of a municipality’s police powers. It is purely a legislative function vested in the governing body, in this case the city council of the City of Yukon.”
Plaintiffs have not suffered and will not suffer “irreparable harm” if the city’s ordinances are enforced and the “public interest favors enforcement” of those ordinances, the defendant states.
“They do not allege that there are no locations in the City where they can operate a marijuana shop under the ordinance and the current zoning provisions,” according to Yukon’s response. “Plaintiff Hodge cannot show that the ordinance will prevent or infringe upon his ability to use marijuana for medicinal purposes.”
In court documents, the defendant contends the ordinance enacted by Yukon only requires that retail marijuana businesses be located in areas zoned commercial and subject to the same location restrictions applicable to retail liquor stores.
Yukon cites language included in SQ 788 that acknowledged cities would need to take “appropriate actions to zone and regulate the introduction of this new industry into their communities by reasonable, common sense ordinances.”
In accordance with SQ 788 and consistent with Oklahoma Supreme Court precedents, Yukon “undertook to analyze how it could best protect the health, safety and welfare of its citizens by regulating retail sales or marijuana and the growing of marijuana for personal use,” according to the court-filed answer.
The defendant, in response to the lawsuit, cited potential hazards of individuals growing marijuana plants within their own homes using equipment that may cause an increased risk of fires.
OPEN MEETING ACT VIOLATION?
The plaintiffs, in their lawsuit, claim Yukon officials violated the Open Meetings Act when the city council discussed the marijuana ordinance during a work session held before its Sept. 18, 2018 council meeting at the Centennial Building, 12 S 5th.
The ordinance was not listed on the work session agenda yet discussion about the local law took place, according to the suit.
Due to the city’s “willful violation” of the Open Meeting Act, the plaintiffs have asked the court to declare the ordinance invalid.
In its court-filed response to the allegations, the defendant states no business was conducted during the work session and the meeting was accessible to the public. A notice of the council meeting and work session were posted on the front window of the building.
“The City denies that any officer or agent of the City in any way discouraged, inhibited or prohibited any member of the public from attending the work session,” according to the court document.
In this lawsuit, the plaintiffs’ attorneys cite a “similar case” filed last September in Tulsa County alleging ordinances enacted by the City of Broken Arrow are “excessive, burdensome and exceeded the scope” of the new state law.
In its answer, Yukon states, “The pleadings filed and orders entered in another district court, relating to different ordinances enacted by a different city, are irrelevant to the issues presented in this case.”