Medical marijuana wins a round

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March 14, 2013, 7:35 pm
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(NECN: Peter Howe, Wakefield, Mass.) - A 24-minute train ride from Boston, Wakefield sports a classic New England downtown defined by pizza shops and consignment boutiques and a white-steepled church – the kind of place business owners like Suzanne O’Neill of Main Street Shoe Repair worry would see all kinds of trouble if medical-marijuana dispensaries join the local storefronts.

"I'm not even talking about the kind of people you’re going to meet" coming to pick up pot prescriptions that may or may not have been written by reputable doctors, O’Neill said Thursday. "The disadvantages are so great that I really think it should be sold in bag form in the established pharmacies where you have to go in with your prescription and pick up a little bag, just like you would any other drug," O’Neill said. "I don't think it should have its own pickup and drop off places."

A lot of people feel like O’Neill does in Wakefield. And after Massachusetts voters approved by a 63-37 vote in November a ballot initiative petition legalizing regulated marijuana for medical purposes like pain and nausea relief, Wakefield enacted a zoning bylaw effectively banning marijuana dispensaries as an allowed business in town.

But Wednesday, Attorney General Martha Coakley – whose office, under an arcane provision of state law, has the final say on the legality of town-enacted bylaws (but not ordinances enacted by communities with a city form of government) – threw out the Wakefield ban, saying in light of voters’ legalization of medical marijuana statewide, towns can’t effectively flout state law by using zoning to outlaw dispensaries locally.

Coakley Thursday said the fundamental principle was that if Wakefield’s ban stood, "we’d have to allow every town" trying to ban medical marijuana, which would effectively defy the law the voters approved in November.

"That law’s purpose cannot be served if a municipality were to prohibit treatment centers within its borders, for it one municipality were allowed to do so, all could do so, making reasonable access impossible," Coakley’s office said in a prepared statement.

Wakefield town administrator Stephen Maio said in an e-mail to me, "We are certainly disappointed in the AG's decision, especially since town meeting overwhelmingly supported the outright ban. The decision does however, appear to indicate the ability to impose some local regulations. We will need to weigh our options as a town, which could include local area restrictions to a short-term moratorium, or perhaps appealing the decision of the AG."

While Wakefield and other communities including Melrose, Peabody, and Reading have enacted no-medical-marijuana zoning bylaws or ordinances, many others have taken the step of imposing "moratoriums" on medical marijuana while state regulations and zoning laws are established and clarified. On Wednesday, Coakley upheld Burlington’s decision to impose a moratorium through June 30, 2014. The state Public Health Department is scheduled to release draft regulations for who can get medical marijuana, when, how, and for what, and rules around how it is prescribed and by whom, on March 29. The state Public Health Council could amend those rules or send them back to staff for reworking or adopt them as early as May 24.

In some communities, medical marijuana advocates think local officials are scheming to adopt the longest moratoria they can – or adopt zoning bans they know are illegal but will take a long time to be successfully thrown out by lawsuits – in hopes that the 35 medical marijuana dispensaries authorized by the ballot question will all have been issued before their community can potentially approve one.

Sarah Wunsch, a staff attorney with the American Civil Liberties Union of Massachusetts, said the ACLU was pleased by Coakley’s ruling and is closely watching city and town governments for signs they’re attempting to undermine or thwart medical marijuana legalization.

"Cities and towns aren't allowed to frustrate the purpose of a state law which governs all of us," Wunsch said. "There can be some reasonable local regulations" on where dispensaries can be located, Wunsch said, "as long as it doesn't undermine the intent of the law to allow access to medical marijuana, and so I think we will have to see, sort of go case by case … What we hate to see is cities and towns trying to get cute and deciding that despite what the voters said, they're going to try to stop medical marijuana in their communities."

With videographer John J. Hammann. NECN’s Jennifer Eagan and videographer Scott Wholley contributed to this report.

Tags: massachusetts, Martha Coakley, Peter Howe, Wakefield, medical marijuana, MA Attorney General, medical marijuana dispensaries
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