PROVIDENCE — R.I. Superior Court Associate Justice Richard A. Licht has granted two Smithfield residents, members of the Rhode Island Patient Advocacy Coalition, a temporary injunction preventing Smithfield from limiting private cultivation of medical marijuana.
The plaintiffs have not been named in the suit, as a privacy-saving measure, according to the American Civil Liberties Union of Rhode Island, which filed the suit on their behalf.
The suit argued Smithfield’s zoning ordinance is pre-empted by the Hawkins-Slater Act, which grants the power to cultivate medical marijuana for sale to compassion centers and for private use.
“Rhode Island law recognizes that marijuana is a legitimate and effective treatment for debilitating medical conditions and lays out stringent regulations for its lawful possession and cultivation. Smithfield’s ordinance is an obvious attempt to undermine that law and make it extremely difficult, if not impossible, for many of those who lawfully use medical marijuana to treat their conditions,” said Steven Brown, executive director of the ACLU of Rhode Island.
Licht agreed, according to the court decision.
The ordinance limits patient cardholder cultivation possession to two mature plants, while the Hawkins-Slater Act permits patient cardholders up to 12. The ordinance also bans all caregiver and cooperative cultivation, which is permitted by the Hawkins-Slater Act.
“As a general rule, a state law of general character and statewide application is paramount to any local or municipal ordinance inconsistent therewith,” Licht wrote in his decision.
Also, Licht wrote, the Hawkins-Slater Act already provides a comprehensive regulatory structure for the medical use and supply of medical marijuana involving both the R.I. Department of Business Regulation and the R.I. Department of Health.
“This level of attention and detail makes clear that ‘the Legislature intended that its statutory scheme completely occupy the field of regulation on a particular subject.’ Thus, the ordinance ‘will be declared invalid if it disrupts the state’s overall scheme of regulation,’ ” Licht wrote.
Licht wrote that while the Hawkins-Slater Act grants regulatory power over medical marijuana cultivation to towns, it only applies to large-scale operations, not individual efforts.
In his review of the Smithfield Town Council meeting during which the ordinance was passed, Licht noted the reasoning for the limits on personal cultivation of medical marijuana to two plants was not supported by evidence presented during the meeting, or known to the Court.
“The Court is ever mindful that the Hawkins-Slater Act was enacted because the General Assembly found that it was in the interest of the health of certain Rhode Islanders to allow them to use and grow marijuana for medicinal purposes. The Court gleans from the minutes of the Town Council meeting that the police chief and others believed, for some reason, that two plants was sufficient for a cardholder’s needs, and feared the excess could be sold illegally or make cardholder growers subject to potential robbery. Again, there is no evidence in this record or known to the Court that supports a claim that two plants is sufficient for a patient’s use,” Licht wrote.
Reasoning that the plaintiffs had both standing in the case and a reasonable chance of success in challenging the ordinance, Licht wrote he would grant their motion for a preliminary injunction.
Rob Borkowski is a PBN staff writer. Email him at Borkowski@PBN.com.
