A Tulsa attorney representing medical marijuana business licensees took legal action Tuesday in hopes of preventing the city of Broken Arrow from enforcing its new ordinances regulating the local cannabis industry.
Attorney Ron Durbin II claimed in documents filed in Tulsa County District Court that Broken Arrow city leaders do not currently have authorization to adopt restrictions besides those outlined in the text of State Question 788.
In a news conference announcing the petition, Durbin said he wants a judge to halt the process until and unless the Legislature passes laws allowing municipalities to enact their own frameworks. He simultaneously filed a petition seeking a declaratory judgment against the city and named all five council members, including Mayor Craig Thurmond, as defendants in their official and individual capacities.
The documents list Cloudi Mornings LLC and Austin Miller, its manager, as plaintiffs. Durbin asked for a hearing on the emergency request to be scheduled for Monday so the city would have time to prepare.
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“This struggle that we’re fighting here is the same struggle that was fought when 3.2 percent beer came to the state of Oklahoma,” he said during the news conference, later saying, “All that we’re asking is that (zoning laws) be equally applied to this as they are to a pharmacy. It’s not asking for any more protections than that. It’s asking for equal protection.”
The ordinances categorize dispensaries similarly to liquor stores, impose a $2,500 annual permit fee for business licensees and limit grow operations to existing only indoors in light or heavy industrial zones. Additionally, tenants planning to grow their own cannabis will be required to obtain written permission from property owners in advance.
Broken Arrow city councilors voted unanimously last week to approve the ordinances but noted a perceived lack of guidance from the state Capitol on how to proceed leading up to the next legislative session. The Legislature would convene starting in February unless a special session is called.
“Despite the Governor’s and Legislature’s failures to act when they should (regarding SQ 788), such failures do not authorize cities like Broken Arrow to enact restrictions or impose fees on the activities authorized under the Act,” Durbin wrote in the suit.
Acting City Attorney Trevor Dennis said last week that he was aware there could be litigation regardless of what the council decided but maintained the regulations are “common sense.” The ordinances took effect immediately after the vote.
Durbin, a Broken Arrow resident, told the councilors during public comments that they received “terrible” advice that resulted in them becoming a “test case” for litigation. He said SQ 788 bars municipalities from working to “unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment,” which he said means the ordinances won’t withstand a court challenge.
When asked for a response, a city of Broken Arrow spokeswoman said the department is “reviewing it now and we do not have any comments at this time.”
Miller, a prospective grower, said during the news conference that he already acquired a building along 61st Street between Garnett Road and 129th East Avenue for his business. But under the new zoning rules, he said it can’t be used for that purpose, which could result in the loss of his $40,000 investment.
“I’ve done everything that’s been required, and they’ve still set me back,” Miller said. “(The zoning rules) would destroy my business because I would have to up and move, and I don’t know where else I could go.”
Durbin also said in the documents that he thought the state question doesn’t authorize cities at this time to even create any procedure requiring entrepreneurs to obtain municipal permits.
“They also imposed all kinds of additional restrictions, including giving themselves 90 to 120 days and the ability to extend for, quote, ‘good cause,’ their review of the application process,” he said. “(These rules) are contrary to the general laws of the state of Oklahoma.”
Durbin additionally accused Broken Arrow city councilors of violating the Open Meetings Act by gathering as a body outside the public’s presence to formulate the language in the ordinances. He leveled a similar allegation against the Oklahoma State Board of Health when he sued that agency in July on behalf of activist group Green The Vote for opting to approve now-defunct emergency rules for medical marijuana. That petition is pending.
Dennis, in response to public comments from citizens, contended the council discussed the ordinances openly during previous meetings, saying the process “didn’t happen in the dark.” Dennis also asserted that the council acted properly within its municipal police powers.