Weed control?

Judge Hesse to rule Thursday on city’s medical marijuana ordinance

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District Judge Paul Hesse

By Conrad Dudderar
Senior Staff Writer

A Canadian County judge this Thursday will consider granting a temporary injunction against Yukon because of its medical marijuana ordinance.

District Judge Paul Hesse will hear the request for the preliminary injunction filed last fall by attorneys on behalf of three Canadian County residents. The Feb. 14 hearing is due to start at 9 a.m.

“We’ve got clients that are directly affected, both patient licensees and businesses,” said Collin W. Rockett, one of the plaintiffs’ attorneys. “We can show standing; how they’ve been affected by the (city’s) ordinance. We can also show that the ordinance overreaches the authorities granted to municipalities. That’s a strong part of our argument.

“Another factor that helps our position is a ruling in Broken Arrow (that’s) favorable because it essentially is a ruling from a district court that’s saying basically what we’re claiming. … The ordinances and the issues were so similar to what we have here.”

Yukon ordinance No. 1365 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 Yukon City Council approved the ordinance last fall after passage of State Question 788, which provides for the legalization of the possession of marijuana for medical purposes. Oklahoma voters approved SQ 788 on June 26, 2018 by a 56.86 percent majority. The measure passed by a 55.17 percent margin in Canadian County. The final vote tally showed 19,190 voters favoring the measure while 15,596 were against it.

Yukon city attorney Gary Miller said Yukon’s marijuana ordinance is valid and the city should be allowed to enforce it. He believes the city’s ordinance requirements that retail marijuana stores be located in areas zoned commercial are not overly restrictive.

“It’s very similar to the requirements the state makes on alcohol establishments,” Miller said.

Miller said actions taken by city officials to enact its retail marijuana ordinance were reasonable, lawful exercises of its “police powers” to protect the health, welfare and safety of its citizens. The zoning requirement in the ordinance is a valid exercise of the City of Yukon’s police powers, he added.

The first medical marijuana dispensary inside Yukon city limits is The Green Lily, which opened Jan. 11 at 355 E Main.

Plaintiffs contend Yukon’s ordinance requires that a patient licensee’s residence must comply with “arbitrary security requirements” while dictating “how the licensee may use his or her private residence,” according to the lawsuit.

“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,” the plaintiffs claim.

With residents growing marijuana plants in their homes, Yukon Mayor Mike McEachern looks at it from a safety standpoint as well.

“I don’t care if someone has six (marijuana) buds in their house,” he said. “I care a whole lot if someone burns down their neighborhood.

“What people do in their home, I consider their domicile to be a pretty sacred place. But when you’re putting someone in a position to put others at risk, that is something we definitely need to look at.”

BATTLE MAY NOT END THURSDAY

If Judge Hesse grants the preliminary injunction preventing the City of Yukon from enforcing its marijuana ordinance, the battle will not be over.

A trial would then be scheduled on the merits of the case before the matter can be resolved.

“I think we’ll get some sort of answers or direction on the 14th,” attorney Rockett said.
Rockett is among four attorneys who represent the plaintiffs, 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. Bishop, Dedmon and Hodge want to open medical marijuana businesses inside Yukon city limits. Hodge also has a medical marijuana patient license.

Plaintiffs are seeking a declaratory judgment from the court that finds the municipal ordinance enacted on Sept. 18, 2018 by the Yukon City Council regulating medicinal marijuana within the City of Yukon “is invalid in whole or in part and constitutes an unauthorized exercise of municipal regulatory authority,” according to court documents.

The Broken Arrow case referred to by Rockett was filed last fall against that city in Tulsa County District Court. On Oct. 17, a judge issued a final declaratory judgment in favor of plaintiff Cloudi Mornings LLC to stop the Broken Arrow from enforcing its marijuana ordinances.

“Like the ordinances in Broken Arrow, the ordinance enacted by the City of Yukon relating to commercial medicinal marijuana businesses and patient licensees serves no purpose other than to deter those living within the City of Yukon from exercising their rights and privileges under SQ 788,” according to the petition for declaratory judgment.

“Said requirements and provisions grossly exceed (the City of Yukon’s) authority to regulate medicinal marijuana under SQ 788.”

‘PUBLIC INTEREST FAVORS ENFORCEMENT’

In its answer to the lawsuit, the defendant contends “the public interest favors enforcement” of Yukon’s ordinance.

In the court-filed response, attorneys for the city cited language 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.”

The answer, filed by attorney John J. Love for the City of Yukon, described potential hazards of individuals growing marijuana plants in their own homes:

“Marijuana plants grown indoors require artificial light created by high-voltage mercury vapor or high-pressure sodium lamps, each requiring its own igniter, capacitor and transformer. This equipment may create an increased risk of electrical fires. Each high-intensity lamp requires a capacitor, which holds an electrical charge after the power is shut off, and a transformer to step up the voltage.

“Additionally, houses where marijuana is grown may have pressurized gas cylinders used to enrich the concentration of carbon dioxide to hasten the growth of the plants. The CO2 generators are usually fueled by propane or natural gas.”

In its answer, Yukon claims filings and actions in the Broken Arrow case are “irrelevant” to the issues presented in this one.