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Will Local Bans On Medical Marijuana Dispensaries Hold Up Legally?

In this Nov. 7 file photo, medical marijuana is packaged for sale in a dispensary in Seattle. Massachusetts voters approved of medical marijuana on Election Day. (Ted S. Warren/AP)

In this Nov. 7 file photo, medical marijuana is packaged for sale in a dispensary in Seattle. Massachusetts voters approved of medical marijuana on Election Day. (Ted S. Warren/AP)

BOSTON — Medical marijuana dispensaries haven’t opened yet in Massachusetts — and some communities in the state hope to keep it that way.

Even before Massachusetts voters passed Question 3, which legalized medical marijuana, some cities and towns began researching how they could prevent medical marijuana dispensaries from opening within their borders. Now, some of those communities have passed zoning bylaws banning dispensaries, and they’re waiting to hear whether the state attorney general’s office will approve them.

Melrose, Reading and Wakefield, which comprise a regional health district, have passed identical dispensary bans, and Attorney General Martha Coakley must issue her opinion on Wakefield’s bylaw by March 21. WBUR’s All Things Considered host Sacha Pfeiffer spoke with the health director for those communities, Ruth Clay, about why they oppose dispensaries.

Ruth Clay: None of the three communities have a moral opposition to medical marijuana. The citizens of the community certainly want people who feel that they have a medical necessity or benefit to be able to access that. The main issue is basically the devil’s in the details. And the way that Question 3 was written, there is a lot of unanswered questions. And we don’t have the regulations from the state health department.

If the regulations come out that there’s reasonable dispensing, and it tightly regulates the use of home-grown and access to youth and people who don’t have a real medical need, then I think the communities will reexamine that. But these three communities have strong histories of substance abuse prevention work. Reading and Melrose both have a history of federal funding, and they’re called Drug Free Communities grants. Substance abuse prevention for youth is a big issue for these communities. So having a medical marijuana dispensing site in their community that would be available to their youth basically goes against all the work that the communities have been doing.

Sacha Pfeiffer: And you think that actually distinguishes Melrose and Wakefield and Reading in a way different than any other community concerned about substance abuse?

Not any other community, but from some communities. There are other communities that spend a lot of time and effort and money on dealing with substance abuse prevention, but not every community does.

As you’ve pointed out, the [regulations] have not been written yet by the Department of Public Health, but these dispensaries are intended to be tightly regulated so that only people with a doctor’s approval could be getting medical marijuana. Why are you worried that youth might end up getting access when they shouldn’t?

Because of the experience of other states that have already passed similar kinds of laws. The statistics show a significant increase in youths’ use of marijuana once those laws went into effect.

Do you know, though, that there is a definite connection between the rise in marijuana among young people and the arrival of medical marijuana dispensaries in those communities?

Yes. The increase in youth marijuana use increased dramatically in Colorado and California when those laws passed.

And you believe because the medical marijuana dispensaries came to town, that meant more availability of marijuana for young people?

Sure. That was the only variable that changed.

As a local public health official, what is your personal opinion about the benefits versus possible costs of having marijuana dispensaries in town?

I don’t think my personal opinion is relevant. I mean, it’s really what each community wants to do.

Well I guess I should say, then, your professional opinion. I mean, certainly many voters approved this because they felt that it was a real public health need. Do you have doubts about the medicinal benefits of medical marijuana?

I’d like to see more research being done. With someone who’s seriously ill, with using chemotherapy, with nausea, I think it’s pretty clear that there are components of marijuana — the THC — that does help. I certainly don’t want to withhold that medication from them.

But by having zoning restrictions, that would obviously make it harder for people who are suffering to get it if they think it could help them.

I don’t think it does. It’s not going to be that there’s going to be a dispensing site in every city and town in Massachusetts. And people go from one town to another to grocery shop and go to their pharmacy as it is.

In that sense, is there a Not In My Back Yard element to this?

I think there are some communities that are better suited for it. Especially communities that have large oncology centers.

So you think maybe have the medical marijuana dispensary be located near the hospital or the oncology center?

Those are where the patients will be.

Although there is a hospital in Wakefield, isn’t there?

Melrose.

In Melrose.

Melrose-Wakefield, yes.

So, in that sense, would Melrose be a good place for a medical marijuana dispensary?

I said in general terms that that might be a good place. But the mayor has been clear that this is not the best place for medical marijuana. It’s not in keeping with the vision for this community. If the state regulations come out in a way that really addresses all the details, I think that’s something that Melrose will definitely look at. Because, as I said, we’re not morally opposed to medical marijuana. We just want to make sure it’s done in a safe and appropriate way to protect the community.

The American Civil Liberties Union of Massachusetts opposes these bylaws banning medical marijuana dispensaries. Sacha Pfeiffer spoke with one of its staff attorneys in Boston, Sarah Wunsch, about why the ACLU considers the bans illegal:

Sarah Wunsch: Cities and towns are not allowed to pass laws that are at odds [with] or undermine state law, and we think this kind of total ban on the medical marijuana dispensaries is directly at odds with what the voters chose to do in approving Question 3 for the humanitarian provision of medical marijuana. And part of what was approved was setting up dispensaries at the direction of the state Department of Public Health, which has been given the authority to decide where they should go.

Sacha Pfeiffer: What if a town or a city doesn’t totally ban a dispensary from within its borders, but just partially bans it from certain areas? Is the ACLU willing to accept that?

You know, we’re not there yet. If that question came up, it depends on how extensive the ban is. But right now what we are dealing with and what the attorney general’s office is dealing with are total bans. And I think that, without question, is an effort to undermine and stop the operation of medical marijuana and what the voters approved when they passed Question 3.

So how much authority do they have here to create zoning restrictions of some type if they’re not totally comfortable with medical marijuana dispensaries?

The limits aren’t established by each city or town acting on its own, deciding, “We want it here” or “We don’t want it here.” Unlike when the state legislature passed the law that allowed needle exchange programs, the legislature specifically wrote in a provision telling DPH that they had to have local approval first. That’s not true of Question 3; there is no requirement of local approval. But now we see cities and towns saying, ‘Oh, well, not here.’ That’s just part of the opposition to the notion of medical marijuana.

We are seeing some communities where people say, ‘We support the idea of sick people getting access to medical marijuana, but we’re very uncomfortable that the details of the law haven’t been written yet and we’re worried that maybe the regulations won’t be tight enough and, for example, young people will get their hands on marijuana much more easily.’ Do you think communities have a right to be concerned about that?

I think they have a right to weigh in with the Department of Public Health about what kinds of restrictions they would like to see and what they would like the regulations to say. But I don’t think they have the right to erect roadblocks that will make it impossible to site a dispensary in their community.

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