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How the city of Heavener rushed an ‘emergency’ cannabis ordinance with permits and inspections for home grows
It’s easy to overlook the small city of Heavener and its 3,300 residents in the southeastern part of Oklahoma. The area is probably best-known to outsiders for curious runestone carvings that have perplexed historians for decades. No one on the internet can even spell the surrounding county’s name correctly.
The Oklahoma Historical Society and Wikipedia spell it “Le Flore” County. The county sheriff spells it “LeFlore” County. So does the local newspaper in Heavener, which has been publishing since before statehood, still publishes today, and has a special section for churches.
Like a lot of communities in tradition-bound Oklahoma, Heavener is grappling with the unfamiliar sensation of state-legal cannabis after decades of prohibition and criminalization.
The city’s four commissioners and mayor with little notice enacted a broadly restrictive “emergency” cannabis ordinance on Feb. 4. A local cannabis watchdog there posted the ordinance online, and it eventually appeared in my Google Alerts.
The ordinance foretells what other communities in Oklahoma could attempt to do in the future to cannabis businesses and patient-license holders that’s overzealous or simply illegal.
Among other things, the Heavener ordinance mandated city inspections for people growing cannabis at home, a special home-grow permit for private residences, and a six-foot tall privacy fence if growing outdoors for personal use. Other restrictions contained in the ordinance applied to cannabis businesses operating in the area.
The trajectory of the Heavener ordinance has been a difficult story to unravel online over recent days to say the least. The city’s online page for viewing council meeting agendas appears to have not been updated since 2014. It’s page for viewing council meeting minutes has no meeting minutes.
But as I was writing out this post, Heavener issued a new cannabis ordinance on April 15 with many of the most seemingly impulsive restrictions removed. That occurred following outcry from cannabis reformers in the area, who found out about the initial ordinance only after it passed.
Even with the city council having rethought the ordinance after public input, the experience in Heavener is revealing. Oklahoma laws on local community restrictions for cannabis businesses in particular are stubbornly unclear. They raise questions about what any city or county in Oklahoma could seek to do and be less receptive to input from cannabis about it.
When I explain the sequence of events below as I know them, it’ll become clearer why I think Heavener’s ordinance is an important illustration of what could continually lead to conflict in Oklahoma as communities adapt to the still-new reality of legal cannabis.
First a look at the law
Oklahoma’s medical marijuana laws are made up of two parts. The first is what voters passed in 2018. That’s Title 63 Section 420 (tee hee) of Oklahoma’s public health and safety statutes.
The second was created by the state legislature as it sought to implement the will of voters and create a suitable and sensible framework for regulations. It’s formally called the Oklahoma Medical Marijuana and Patient Protection Act. But it’s more commonly referred to as “the Unity bill” and can be found beginning at Title 63 Section 427.
Together, these laws made clear that no matter how Oklahoma chose to proceed with cannabis, certain rights were fundamentally protected for everyone across the state. This is the case no matter how big or small or how conservative or liberal the town in which you live.
On the other hand, cities also have rights and can enact zoning and regulatory ordinances to protect public peace and health and safety where it’s deemed necessary. They can even add an “emergency clause” as Heavener did in both versions of its cannabis ordinance:
“It being immediately necessary for the preservation of public health, peace, and safety, an emergency is hereby declared to exist, and this ordinance shall take effect and be in full force from and after its passage and approval.”
But Section 420 passed by voters nearly three years ago now specifically articulates two things. It states that patient-license holders are free to have at their private residences six mature plants and six seedling plants along with eight ounces of consumable cannabis flower.
It additionally states that “no city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment.” The law passed by voters otherwise only addressed cities in one respect. They were free to enact ordinances that permitted people to possess more cannabis than what state law allowed.
Then came the Unity bill from the state legislature, which went further to address cannabis rights in Oklahoma. Section 427.8 explicitly addressed municipal and county governments with respect to patient-license holders:
“Municipal and county governing bodies may not enact medical marijuana guidelines which restrict or interfere with the rights of a licensed patient or caregiver to possess, purchase, cultivate or transport medical marijuana within the legal limits set forth in this act or Section 420 et seq. of Title 63 of the Oklahoma Statutes or require patients or caregivers to obtain permits or licenses in addition to the state-required licenses provided herein.”
If you made it this far, and you’re not a lawyer, but things are making sense, awesome. I’m not a lawyer, either. We’re learnin’ here, y’all.
Now for the Heavener ordinance
LeFlore County isn’t buying cannabis in as big of numbers as some other areas of the state. But the area enjoys cannabis nonetheless. Since 2018 when voters authorized medical marijuana, LeFlore has generated nearly $18 million in retail cannabis sales, according to figures from the Oklahoma Tax Commission. Almost $3 million of that has gone to excise and sales taxes.
Not everyone in the area is enthusiastic about cannabis, however. Republican Rick West, whose hometown is Heavener, represents District 3, which contains only LeFlore County. He proposed a bill in the state’s current legislative session for unclear reasons that would ban cannabis-related proposals from being submitted to a special Oklahoma program for promoting interest in agriculture.
The extent to which Heavener was willing to rush an “emergency” cannabis ordinance without fully researching how or whether it conflicted with cannabis rights embedded in state law tells us something about the way many people in Oklahoma still view cannabis.
The ordinance as initially passed, among other things, called for the following requirements with respect to patients that appeared to clearly clash with the state’s medical marijuana protections:
Ordinance Any state-licensed person growing cannabis at home must obtain a special city permit that includes an annual fee and home inspections by Heavener officials.
State law No city “may require patients or caregivers to obtain permits or licenses in addition to the state-required licenses provided herein.”
Ordinance Any access point for home cultivation must be secured by lock and key “or equivalent.”
State law Says only that a home grow must be operated in a way “so that the marijuana is not accessible to a member of the general public.”
Ordinance If cultivating from home in an outdoor area, the property must be secured by a six-foot tall, “sight-proof fence.”
State law Says only that home grows cannot “be visible from any street adjacent to the property.”
Ordinance Marijuana grown for personal use may not be given, sold, or traded to a third party.
State law Nothing in the law appears to prohibit one licensed person from gifting home-grown cannabis to another licensed person.
That’s where the initial Heavener ordinance dealt with home cultivation. How about where the ordinance sought to restrict cannabis businesses of different kinds? There the law becomes murkier and shows how legal uncertainty could continually create headaches for cannabis businesses anywhere in the state.
Cannabis in Oklahoma courts
Because Oklahoma is still so young to cannabis, there are few court cases to draw from in order to better understand the potential for city and county restrictions. But one case -- Cloudi Mornings v. City of Broken Arrow -- reveals how anxious some local officials in Oklahoma were to regulate cannabis before the industry and legislature even had a chance to situate themselves.
Broken Arrow in southeast Tulsa County began enacting ordinances regulating cannabis businesses immediately after voters passed State Question 788. But they did so before the legislature could get around to clarifying some of the ground rules.
The Broken Arrow ordinances required growers and processors only to operate indoors and within areas zoned industrial. Dispensaries, meanwhile, had to locate according to the same rules as liquor stores.
Cloudi Mornings was itself still forming as a cannabis-cultivation business and not technically denied permits as a result of the ordinances. But given the uncertain legal environment, it sued Broken Arrow anyway arguing that the city couldn’t institute any ordinances at all regulating cannabis under the state’s new medical marijuana laws as approved by voters.
That was because Title 63 Section 425 explicitly stated: “No city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment.”
A Tulsa County judge agreed and said that under the law as authorized by voters:
“Oklahoma cities are precluded from adopting regulations, zoning overlays, fees, or other restrictions as to the medical marijuana business activities authorized by Oklahoma’s Medical Marijuana Act.”
Then came key changes to the state’s medical marijuana laws during the 2019 legislative session in the form of Senate Bill 1030. Its lead sponsor was Sen. Lonnie Paxton (R-Tuttle), who is also sponsoring a controversial bill this session that threatens to re-criminalize cannabis.
Paxton’s SB 1030 clarified that cities were only prohibited from changing or restricting their zoning ordinances where doing so “entirely prevents” retail cannabis licensees, aka dispensaries, from operating. This meant cities were free to:
“ … follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or any other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.”
Lawmakers didn’t stop there. An additional key provision left other business-license categories entirely out of any protections, namely cultivators and processors.
By the time the Cloudi Mornings case made it to the Oklahoma Supreme Court, it was dismissed, because the matters at issue had been settled by the passage of SB 1030. Local restrictions were permitted as long as they didn’t prevent cannabis dispensaries completely from operating.
Not to mention, Cloudi Mornings was seeking to be a cultivator, rather than a dispensary, and its chosen location wasn’t zoned according to Broken Arrow’s cannabis ordinances. As a result, the Oklahoma Supreme Court found:
“There is no specific statutory protection against undue changes or restrictions in municipal zoning as provided to a business engaged in the growing or processing of cannabis. … Clearly, the [Oklahoma Medical Marijuana] Act authorizes the city to follow standard planning and zoning procedures as to marijuana growers such as Cloudi Mornings. The Act does not even apply the ‘unduly change or restrict’ standard to growers such as Cloudi Mornings.”
Now for Heavener on businesses
Now you know cities are free to restrict dispensaries within certain parameters. Now you also know cities are free to restrict other types of cannabis businesses seemingly anyway they wish. So let’s consider the initial Heavener ordinance where it dealt with cannabis operators.
Ordinance Dispensaries may not be located within 1,000 feet of any schools, childcare centers, places of worship, or other dispensaries. Also may not be located within 500 feet of any museums, historical sites, libraries, or public parks, pools, or recreational facilities.
State law While perhaps unnecessarily restrictive, these rules would seem to be allowable. State law on its own forbids dispensaries within 1,000 feet of a school.
Ordinance Dispensaries must only operate between the hours of 8 am and Midnight. They must also remain closed on Sundays, Thanksgiving, and Christmas.
State law While perhaps unnecessarily restrictive, these rules would seem to be allowable.
Ordinance Commercial cannabis cultivators are allowed only in areas zoned agricultural or industrial.
State law Appears allowable.
Ordinance Commercial cannabis processors are allowed only in areas zoned industrial.
State law Appears allowable.
Then local cannabis reacted
The initial Heavener ordinance may have remained in effect in its entirety if not for the actions of local cannabis reformers. Brandy Akins and her team at The Stashbox dispensary learned about the ordinance after it passed and began voicing complaints.
They attended city council meetings and spoke with city officials. The Stashbox argued that the ordinance was overly restrictive in some areas or simply didn’t comply with the state’s medical marijuana laws in others.
The local Heavener Ledger newspaper reported that in response, “the city attorney has been working to make sure the ordinance does comply with the state’s laws and several items have been deleted.” Then this week, the city of Heavener issued a new version of the ordinance. The public input appeared to work. The most onerous provisions are removed including:
The requirement of a special city permit for personal home cultivation that included an annual fee and home inspections by Heavener officials.
The requirement that outdoor home grows be accompanied specifically by a six-foot tall, “sight-proof fence.”
The requirement that retail cannabis businesses be closed on Sundays, plus Thanksgiving and Christmas.
The requirement that retail cannabis businesses only be open 8 am to Midnight.
The requirement that retail cannabis businesses not locate near numerous places beyond just schools.
So while action from Akins and The Stashbox caused Heavener to reconsider the ordinance, what happened there illustrates what could potentially happen anywhere. It shows what other cities could be free to do with or without input from cannabis. And it creates yet more uncertainty for Oklahoma cannabis operators trying to run legitimate businesses, pay their taxes, and contribute meaningfully to the state’s economy.
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