Superior Court judge grants preliminary injunction preventing Town of Smithfield from cracking down on medical marijuana cultivation

PROVIDENCE, R.I. — A Superior Court judge issued a preliminary injunction Wednesday preventing the town of Smithfield from enforcing a recent amendment to its zoning ordinance that restricted the cultivation and distribution of medical marijuana.

In his decision, Superior Court Associate Justice Richard A. Licht questioned whether local communities had the power to regulate “small-scale” medical marijuana cultivation under its zoning authority, which traditionally has been used to determine land use.

In April, the Smithfield Town Council passed an ordinance that limits licensed medical marijuana patients to two mature plants and two seedlings, and only at a patient’s primary residence. Rhode Island law specifically allows for the cultivation of 12 mature plants and outlines where medical marijuana can be grown.

At the time of the ordinance’s passage, Smithfield Town Solicitor Edmund Alves said the council had been influenced by various safety concerns and a presentation from the attorney general’s office urging the town to oppose an expansion of marijuana production.

The American Civil Liberties Union of Rhode Island filed the lawsuit in June on behalf of two licensed medical marijuana patients and the Rhode Island Patient Advocacy Coalition (RIPAC), a medical marijuana educational group, saying the new ordinance infringed on rights allowed under state law.

Steven Brown, executive director of the ACLU of RI, said Smithfield’s ordinance was an obvious attempt to undermine the state law that recognized the legitimacy of medical marijuana and to “make it extremely difficult, if not impossible, for many of those who lawfully use medical marijuana to treat their conditions.”

Following Wednesday's decision, Brown said a volunteer attorney is now reviewing ordinances in roughly eight other towns that have restricted patient grows in similar ways. The ACLU will consider filing another lawsuit if necessary, he said, noting that the organization got involved in Smithfield because it was the most "egregious" ordinance passed in the state.

The ordinance also requires patients to disclose their identity to a number of municipal authorities, which, the suit argues, is almost certain to undermine their right to confidentiality under the law.

JoAnne Leppanen, executive director of RIPAC, said medical marijuana patients in Smithfield have been frightened. Some have destroyed their plants while others are continuing to grow while trying to stay out of view of law enforcement. Roughly 300 of some 18,427 medical marijuana patients in Rhode Island live in Smithfield.

“You have a town that is seriously interfering with people’s health care, which is beyond frightening,” Leppanen said.

In his decision, Licht said a review of town council minutes showed that the town police chief and others feared excess medical marijuana would be sold illegally and arbitrarily determined that two marijuana plants would be sufficient for any patient.

“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 said.

Given that the state law was passed “to protect the health of those with debilitating medical conditions, the court hopes that the town was acting on more than a hunch when it decided to alter the protections granted to [medical marijuana] cardholders by the General Assembly.”

Moreover, said Licht, “there is no precedent of which the court is aware that says zoning ordinances are to be drafted as crime prevention tools. … If that were the case, a municipality could use its zoning ordinance to eliminate banks as they are susceptible to robbery or prohibit pharmacies from dispensing opioids because of the health threat they pose.”

— tmooney@providencejournal.com

(401) 277-7359

On Twitter: @mooneyprojo

— jbogdan@providencejournal.com

(401) 277-7493

On Twitter: @JenniferBogdan