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Maryland Counties Prevented From Banning Medical Marijuana Dispensaries?

Updated: Jul 9, 2020

People building a greenhouse (Photo by Edwin Remsberg).

Green field (Photo by Edwin Remsberg).

This post should not be construed as legal advice but is purely educational in nature

The question mark at the end of the headline above is necessary because there is no final answer to this question. Yet. In response to a request from the Senate Judicial Proceedings Committee Chair Robert Zirkin, the Maryland Attorney General’s Office (OAG) issued a letter of advice on September 22 illustrating that local governments (counties in particular) were preempted by the State’s medical cannabis law from banning 1) growing and processing facilities or dispensaries, or 2) the legitimate possession or use of medical cannabis within the local government’s jurisdiction.

Before we get in to any more detail, let’s take a step back and look at what this actually means in the legal setting. Paul has previously discussed preemption in a different context, specifically related to counties banning pesticide use and planting of GMO crops. Preemption occurs when a state statute, or law, conflicts with a local ordinance on the same subject. In this instance, Anne Arundel County has proposed local legislation to prohibit medical cannabis facilities in the county. Typically, where a state has spoken on the same subject and intends to occupy the field that it has spoken on instead of leave it to local government to control, state law would trump county legislation. Thus, Maryland’s state law would preempt the Anne Arundel County ban. This is not necessarily the case here where a court or other governmental agency has said it is actually preempted, but for purposes of explaining preemption, that is what would occur.

The letter described the reasoning behind why counties cannot prohibit an activity where the state has expressly permitted the activity:

…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).”

So the letter of advice basically says, is that simply, counties cannot ban medical cannabis where the state has made it legal. It is important to note, however, that the letter of advice is not law and not binding. It is simply an overview of the laws at play and what the OAG determined to be the result.

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