What promises to be the first of a litany of legal interpretations of the new Mississippi Medical Cannabis Act (MMCA), Attorney General Lynn Fitch released an official attorney general’s opinion on April 15, 2022, regarding the scope of a municipality’s ability to locally regulate medical cannabis establishment operations through zoning or ordinances. Fitch, applying a fairly straightforward interpretation of the MMCA’s language, concluded that cities that have not opted out of the medical cannabis program have some freedom to limit medical cannabis business operations. The opinion warned, several times, that such limitations cannot “have the purpose or effect of prohibiting or making impracticable the operation of such establishments within the City.”
The opinion responds to several questions posed by Darren Musselwhite, the mayor of Southaven, Mississippi. First, Musselwhite asked whether Southaven could prohibit a dispensary, cannabis research facility, or cannabis testing facility from locating in a commercial zone or within a zone in which commercial use is not prohibited or already exists. Fitch concluded that a municipality cannot prohibit medical cannabis establishments from operating in the city. Evaluating the text of the MMCA, Mississippi’s general zoning statutes, and analogizing a prior opinion about local zoning of gambling activities, Fitch opined that a municipality’s “limited regulatory power” under the MMCA allows the city to designate specific types of commercial zones or zones in which commercial use is otherwise authorized or not prohibited, as long as doing so does not have the purpose or effect of prohibiting or making impracticable the operation of such establishments within the city. For example, the opinion found that a city could restrict or limit the location of medical cannabis dispensaries to specific types of commercial zones through local zoning ordinances that follow a comprehensive zoning plan, such as a medical commercial zone. Significantly, the opinion reasoned that such a zoning ordinance should not “result in piece-meal zoning that singles out property owners.” A commercial zoning ordinance regulating only medical cannabis dispensaries might be contrary to legal authority, while a broader “medical commercial zone” regulating all medical establishments might be proper.
Second, the opinion confirms that a municipality can restrict or limit the location of and manner in which a medical cannabis establishment operates through ordinances or regulations governing the time, place, and manner of operation. The opinion summarized these findings as follows:
Accordingly, the City may designate specific types of commercial zones in which medical cannabis establishments may operate, and the City’s local zoning ordinances may regulate the time, place, and manner of operation, so long as the ordinances are in line with the mandates of S.B. 2095 [the MMCA] and Mississippi Code Annotated Sections 17-1-1 et seq. and do not prohibit the operation of such facilities in the City.
Finally, the opinion determined that a municipality can enact an ordinance that expands the distance between which dispensaries can be located – beyond the 1,500-foot radius prescribed by the MMCA. Accompanying this component of the opinion was, again, the caveat that such an ordinance cannot make the operation of the dispensary impracticable. It seems likely that the attorney general may have reached a similar opinion regarding a city or county’s ability to expand the MMCA’s 1,000-foot distance requirement between medical cannabis establishments and churches, schools, or childcare facilities.
While Fitch’s April 15, 2022, opinion offers a glimpse into how these components of the MMCA may be interpreted, the opinion closed by recognizing “it is for a court of competent jurisdiction to determine the validity of a particular ordinance.” If Vegas had odds on how soon a Mississippi court might be faced with such a question, a safe bet would be on a date in the very near future.