How much can a Mississippi city regulate medical cannabis dispensaries through zoning if it doesn't opt out?

Plain-English summary

Southaven asked five questions about how much it can regulate medical cannabis under the new (2022) Mississippi Medical Cannabis Act (Senate Bill 2095). The AG walked through each:

Background: SB 2095 makes medical cannabis cultivation, processing, sale, and distribution legal statewide. Counties and cities can "opt out" by board vote within 90 days of the act's effective date (Section 30(1)). Cities that don't opt out are subject to the regulatory framework.

Section 19 sets the framework for cities and counties that don't opt out:

• (1) Local ordinances may govern "time, place, and manner" of operations, as long as they don't conflict with the chapter or its regulations.
• (2) Cities cannot "prohibit dispensaries either expressly or through the enactment of ordinances or regulations that make their operation impracticable."
• (3) Dispensaries, research facilities, and testing facilities can locate in commercial zones (or in any zone where commercial use is "otherwise authorized or not prohibited"). Cultivation and processing facilities can locate in agricultural or industrial zones (with similar logic), or in commercial zones where the city authorizes them.
• (5) "No medical cannabis dispensary may be located within a one-thousand-five-hundred-feet radius from the main point of entry of the dispensary to the main point of entry of another medical cannabis dispensary."

Specific answers:

1. Prohibit dispensary in a commercial zone? The city can designate which commercial zones can host dispensaries, but the ordinance cannot have the purpose or effect of prohibiting dispensaries citywide.
2. Prohibit dispensary in a particular commercial zone (where commercial use is allowed)? Same answer: city designates specific zones, but the ordinance cannot prohibit citywide.
3. Limit/restrict location and manner? Yes, through time/place/manner ordinances within a comprehensive plan.
4. Allow dispensaries in some commercial zones, prohibit in others (e.g., create a "medical commercial zone")? Yes.
5. Distance restrictions greater than 1,500 feet? Yes, the 1,500-foot statutory minimum is a floor. Cities can require greater spacing as long as the rule doesn't make dispensary operation impracticable.

The AG cites the 1991 Rafferty opinion (Mississippi Gaming Control Act) for the analogy: where the Legislature has authorized an activity statewide, local governments can use reasonable zoning consistent with the statewide framework, but cannot use zoning to prohibit the activity. Same framework applies to medical cannabis.

The opinion also notes that ordinances must comply with the comprehensive zoning plan requirements of Section 17-1-9. Piece-meal zoning singling out particular businesses or limited areas is improper.

The 2013 Delphi Oil case provides the preemption framework: a local ordinance is preempted if it directly conflicts with the state statute or "allows what state law prohibits, or prohibits what state law allows."

What this means for you

For Mississippi cities that have not opted out

Under the opinion, a city that has not opted out under Section 30 may, through ordinances adopted in accordance with a comprehensive zoning plan, designate specific commercial zones in which dispensaries, cannabis research facilities, and cannabis testing facilities may operate; create a designated "medical commercial zone"; regulate the time, place, and manner of operations; and require a minimum distance between dispensaries greater than the 1,500-foot statutory baseline. What the opinion says the city may not do: adopt ordinances that have the purpose or effect of prohibiting dispensaries or making their operation impracticable in the jurisdiction (Section 19(2)), and allow dispensaries to be located less than 1,500 feet apart (Section 19(5)).

For city councils and boards of aldermen

The opinion frames the opt-out under Section 30 as a separate, time-limited decision (a vote within ninety days after the act's effective date). For cities that did not opt out, the opinion holds that zoning of cannabis establishments must be done in accordance with a comprehensive plan under Section 17-1-9, not through piece-meal zoning singling out property owners or one limited area, citing the Williamson, Creekmore, and Scafide opinions.

For planning and zoning officials

The opinion's controlling points for an ordinance: it must accord with the comprehensive zoning plan (Section 17-1-9); it may distinguish establishment types, with dispensaries, research, and testing facilities in commercial zones and cultivation and processing facilities in agricultural or industrial zones (or in commercial zones the locality authorizes by variance or zoning change) under Section 19(3); and it must keep dispensaries at least 1,500 feet apart. The opinion does not address school, church, or park buffers, security standards, or other specific ordinance terms.

For cannabis-industry attorneys

The opinion's key limit on local regulation is Section 19(2): ordinances cannot prohibit dispensaries, expressly or by making their operation impracticable. On greater spacing, the AG holds Section 19(5) does not preempt a minimum distance greater than 1,500 feet "so long as the ordinance or regulation does not prohibit or make impracticable the operation of dispensaries within the City." The opinion closes by noting that "it is for a court of competent jurisdiction to determine the validity of a particular ordinance" (Martin, Williams, Rutledge).

For citizens and community groups

The opinion treats cannabis zoning as a planning matter governed by the comprehensive-plan process. It explains that the formal opt-out under Section 30 was a board or governing-authority vote within ninety days of the act's effective date; absent that, a city cannot use zoning to prohibit dispensaries, though it can regulate where and how they operate.

Common questions

Q: What is the Mississippi Medical Cannabis Act?
A: Senate Bill 2095 (2022 Regular Session). Under the opinion, it makes cultivation, processing, sale, and distribution of medical cannabis legal in every county and municipality unless the locality opts out, with the Mississippi Department of Health holding authority for oversight of the program.

Q: Did a city have to vote to opt out?
A: Yes. The opinion quotes Section 30(1): medical cannabis activities are legal in every county and municipality "unless a county or municipality opts out through a vote by the board of supervisors of the county or governing authority of the municipality ... within ninety (90) days after the effective date of this act."

Q: What's the 1,500-foot rule?
A: Section 19(5), which the opinion quotes: "No medical cannabis dispensary may be located within a one-thousand-five-hundred-feet radius from the main point of entry of the dispensary to the main point of entry of another medical cannabis dispensary." The opinion describes that distance as a baseline or minimum; a city cannot allow dispensaries closer than that, but may require greater spacing.

Q: Can a city require dispensaries to be farther than 1,500 feet apart?
A: Yes. The opinion holds Section 19(5) does not preempt an ordinance setting a minimum greater than 1,500 feet, as long as the ordinance does not prohibit or make impracticable the operation of dispensaries in the jurisdiction.

Q: Where do cultivation and processing facilities go?
A: Under Section 19(3) as the opinion reads it, a cannabis cultivation or processing facility may be located in an area zoned agricultural or industrial (or where such use is otherwise authorized or not prohibited), or in a commercial area if the municipality or county has authorized it by variance or a change in the zoning ordinance. The opinion's no-prohibition rule in Section 19(2) is stated for dispensaries; it does not separately address banning cultivation.

Q: Who decides whether a particular ordinance is valid?
A: A court. The opinion states that "it is for a court of competent jurisdiction to determine the validity of a particular ordinance," citing the Martin, Williams, and Rutledge opinions. The AG provides the framework but does not rule on any specific Southaven ordinance.

Background and statutory framework

Mississippi's medical cannabis framework is layered:

State level:

• Senate Bill 2095, 2022 Regular Session (Mississippi Medical Cannabis Act): legalizes cultivation, processing, sale, distribution; sets up state-level licensing through the Mississippi Department of Health
• Section 4 of the act: state regulatory authority
• Section 19 of the act: local regulatory authority (time/place/manner; cannot prohibit; specific zoning rules)
• Section 19(5): 1,500-foot dispensary-to-dispensary minimum
• Section 30: opt-out procedure (90 days from effective date)

Local zoning framework (general):

• Section 17-1-1 et seq., Mississippi zoning enabling statutes
• Section 17-1-7, division of municipalities into zones
• Section 17-1-9, comprehensive plan requirement
• Section 17-1-19, considerations in zoning regulations

Preemption framework:

• Delphi Oil v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719 (Miss. 2013): a local ordinance is preempted if it directly conflicts with state statute. Looking at: does the ordinance prohibit what state law allows or allow what state law prohibits?

The 1991 Rafferty opinion (Mississippi Gaming Control Act) provides the structural analogy: local governments cannot use zoning to prohibit a state-authorized activity, but can use reasonable zoning to control its placement. The 2001 Williamson opinion and 1996 Creekmore opinion confirm zoning must be part of a comprehensive plan, not piece-meal targeting.

The 2003 Freelance Entertainment decision (N.D. Miss.) addresses comprehensive-plan zoning of adult businesses, applying analogous principles.

Citations and references

Statutes:

• Senate Bill 2095, 2022 Regular Session, Mississippi Medical Cannabis Act
• Miss. Code Ann. § 17-1-1 et seq., zoning enabling
• Miss. Code Ann. § 17-1-7, division into zones
• Miss. Code Ann. § 17-1-9, comprehensive plan
• Miss. Code Ann. § 17-1-19, zoning considerations

Cases cited:

• Delphi Oil, Inc. v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719, 722-23 (Miss. 2013), preemption framework
• Freelance Entm't, L.L.C. v. Sanders, 280 F. Supp. 2d 533, 546 (N.D. Miss. 2003), comprehensive plan zoning

Prior AG opinions cited:

• MS AG Op., Rafferty (Sept. 24, 1991), gaming zoning analogy
• MS AG Op., Williamson (Apr. 27, 2001), no piece-meal county-area zoning
• MS AG Op., Creekmore (Aug. 16, 1996), zoning a particular business requires comprehensive plan
• MS AG Op., Scafide (June 10, 1986), no piece-meal zoning singling out property owners
• MS AG Op., O'Reilly-Evans (Mar. 4, 1992), preemption analysis (allows what state prohibits / prohibits what state allows)
• MS AG Op., Martin (July 1, 2016), validity of particular ordinance is for courts
• MS AG Op., Williams (Jan. 23, 2009); MS AG Op., Rutledge (June 5, 1998), validity questions for courts

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/04/D.Musselwhite-April-15-2022-Municipal-Regulatory-Authority-under-the-Mississippi-Medical-Cannabis-Act.pdf

Original opinion text

April 15, 2022

Darren Musselwhite
Mayor, City of Southaven
8710 Northwest Drive
Southaven, Mississippi 38671

Re: Municipal Regulatory Authority under the Mississippi Medical Cannabis Act

Dear Mr. Musselwhite:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, as well as subsequent communications, the City of Southaven (the "City") is contemplating opting out of allowing cultivation, processing, sale and/or distribution of medical cannabis and cannabis products within the City in accordance with the recently enacted Mississippi Medical Cannabis Act. Senate Bill 2095, 2022 Regular Session ("S.B. 2095"). You ask several questions regarding the City's authority to regulate medical cannabis establishments in various zoning districts. As of the date your request was received, the City has approximately nine different types of commercial zones, including neighborhood commercial districts, general commercial districts, planned commercial districts, office districts, planned business park districts, and light industrial districts. Your request suggests that Section 19(3) of S.B. 2095 could be interpreted to conflict with other sections of S.B. 2095 and/or limit the authority of municipalities and counties to enact zoning ordinances or otherwise regulate medical cannabis establishments.

Issues Presented

1. Does the City have the authority to prohibit a "dispensary, cannabis research facility or cannabis testing facility" from locating in a commercial zone within the City?
2. If commercial use is not prohibited or already exists in a certain zone within the City, could the City prohibit a "dispensary, cannabis research facility or cannabis testing facility" from being located within that zone?
3. Could the City legally limit or restrict where those establishments are located within its various zoning districts or the manner in which they operate?
4. May the City allow for medical cannabis dispensaries to operate in some commercial zones but restrict them from operating in other commercial zones? For example, may the City create a "medical commercial zone" which allows for the sale of medical cannabis but prohibit it from being sold in other commercial zones located within the City?
5. Assuming any regulation and/or ordinance approved by the City would not make a dispensary's operation impracticable, does the City's authority under the "time, place, and manner" restrictions allow the City to regulate medical cannabis dispensary locations to be at a greater distance than the "one-thousand-five-hundred-feet radius from the main point of entry of the dispensary to the main point of entry of another medical cannabis dispensary" as set forth in S.B. 2095?

Brief Response

1. The City may designate specific types of commercial zones in which dispensaries, cannabis research facilities, or cannabis testing facilities may operate through lawfully enacted ordinances or regulations adopted in accordance with a comprehensive zoning plan. However, these ordinances or regulations cannot have the purpose or effect of prohibiting or making impracticable the operation of such establishments within the City.
2. The City may designate specific types of zones for which commercial use is otherwise authorized or not prohibited in which dispensaries, cannabis research facilities, or cannabis testing facilities may operate through lawfully enacted ordinances or regulations adopted in accordance with a comprehensive zoning plan. However, these ordinances or regulations cannot have the purpose or effect of prohibiting or making impracticable the operation of such establishments within the City.
3. Yes. The City may restrict or limit the location of medical cannabis establishments and the manner in which they operate through ordinances or regulations governing the time, place, and manner of medical cannabis establishments adopted in accordance with a comprehensive zoning plan.
4. Yes. The City may enact local zoning ordinances that accord with its comprehensive zoning plan designating specific types of commercial zones, such as a medical commercial zone, in which medical cannabis dispensaries may operate.
5. Yes. Section 19(5) of S.B. 2095 does not preempt the City's authority to adopt an ordinance or regulation with a minimum distance greater than one-thousand-five-hundred-feet between cannabis dispensaries so long as the ordinance or regulation does not prohibit or make impracticable the operation of dispensaries within the City.

Applicable Law and Discussion

Section 30(1) of S.B. 2095 provides:

The cultivation, processing, sale and distribution of medical cannabis and cannabis products, as performed in accordance to the provisions of this chapter, shall be legal in every county and municipality of this state unless a county or municipality opts out through a vote by the board of supervisors of the county or governing authority of the municipality, as applicable, within ninety (90) days after the effective date of this act. . . .

Assuming the City does not opt out in accordance with Section 30 of S.B. 2095, the City may enact ordinances regulating medical cannabis establishments pursuant to Section 19 of S.B. 2095.

With respect to your first four questions, Section 19 of S.B. 2095 states, in part:

(1) A municipality or county may enact ordinances or regulations not in conflict with this chapter, or with regulations enacted under this chapter, governing the time, place, and manner of medical cannabis establishment operations in the locality. . . .

(2) No municipality or county may prohibit dispensaries either expressly or through the enactment of ordinances or regulations that make their operation impracticable in the jurisdiction. . . .

(3) A dispensary, cannabis research facility or cannabis testing facility may be located in any area in a municipality or county that is zoned as commercial or for which commercial use is otherwise authorized or not prohibited, provided that it being located there does not violate any other provisions of this chapter. A cannabis cultivation facility and/or cannabis processing facility may be located in any area in a municipality or county that is zoned as agricultural or industrial or for which agricultural or industrial use is otherwise authorized or not prohibited, provided that it being there does not violate any other provision of this chapter. A cannabis cultivation facility and/or cannabis processing facility may be located in any area in a municipality or county that is zoned as commercial or for which commercial use is otherwise authorized or not prohibited, provided that the municipality or county has authorized the entity to be located in such area and that it being there does not violate any other provision of this chapter. The municipality or county may authorize this by granting a variance to an existing zoning ordinance or by adopting a change in the zoning ordinance that allows for those entities to be located in specific commercial areas.

Although the Mississippi Department of Health has the authority for oversight of the administration of the medical cannabis program, the Legislature expressly reserved limited regulatory power in municipalities and counties. S.B. 2095 §§ 4, 19. Your request suggests that Section 19(3) of S.B. 2095 limits the authority of municipalities and counties to enact zoning ordinances or otherwise regulate medical cannabis establishments. However, this subsection appears to simply distinguish between the types of medical cannabis establishments that may be located in a commercial zone as opposed to an agricultural or industrial use zone. Based on the plain language of the statute, a municipality has the authority to enact ordinances or regulations governing the time, place, and manner of medical cannabis establishment operations, as long as the ordinances and regulations do not conflict with S.B. 2095. S.B. 2095 § 19(1). Any zoning regulations must be made in accordance with a local government's comprehensive zoning plan. Miss. Code Ann. § 17-1-9. See also Freelance Entm't, L.L.C. v. Sanders, 280 F. Supp. 2d 533, 546 (N.D. Miss. 2003).

Municipalities and counties generally have the authority to adopt zoning ordinances in accordance with Title 17, Chapter 1 of the Mississippi Code. Section 17-1-7 provides for the division of municipalities and counties into zones "of such number, shape and area as may be deemed best suited to carry out the purposes of Sections 17-1-1 through 17-1-27, inclusive." Within those zones, subject to certain restrictions on farm buildings and agricultural lands, the governing authorities may restrict and regulate, among other things, the use of buildings, structures, or land. Miss. Code Ann. § 17-1-7. While regulations may vary from zone to zone, throughout each particular zone, "[a]ll regulations shall be uniform for each class or kind of buildings. . . ." Id. Zoning, however, may not be done in isolation but rather, as mandated by Section 17-1-9. "Zoning regulations shall be made in accordance with a comprehensive plan" with the goals of reducing traffic congestion, providing safety from fire and other dangers, preventing overcrowding and undue concentrations of people, providing adequate air and light, and providing such public necessities as water, sewer, transportation, and schools. Miss. Code Ann. § 17-1-19. "Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings, and encouraging the most appropriate use of land throughout such municipality." Id.

This office was previously asked about a municipality's authority to regulate gambling where gambling activities had been legalized in accordance with the Mississippi Gaming Control Act. In MS AG Op., Rafferty at *2 (Sept. 24, 1991), we opined:

In sum, while local governing authorities cannot enact any zoning ordinance or classification affecting gaming establishments which is inconsistent with the general law of the state, they may pass reasonable zoning regulations consistent with the general law of the state. In other words, in jurisdictions where gaming has been legalized, local governing authorities cannot enact zoning laws which have the purpose or effect of prohibiting gaming, but they may enact reasonable zoning ordinances restricting the permissible locations of casinos, subject to the regulations promulgated under the Gaming Control Act.

Similarly, a municipality that has not opted out of allowing cultivation, processing, sale or distribution of medical cannabis and cannabis products cannot adopt zoning ordinances that would prohibit medical cannabis establishment operations in the municipality. However, it may enact ordinances that regulate the time, place, and manner of operations in the delineated zones, keeping in mind this office has previously opined that state zoning laws make no provision for a local zoning plan that applies to only a certain part of the county. Id. "While the county has authority to adopt county wide zoning ordinances as part of a plan, to adopt a county ordinance applicable to one limited area of the county would be contrary to legal authority." MS AG Op., Williamson at 1 (Apr. 27, 2001). Also, in response to whether a county can enact a zoning ordinance applicable to only one type of business, this office replied that any zoning ordinance regulating a particular business must be in compliance with a comprehensive plan. MS AG Op., Creekmore at 1 (Aug. 16, 1996). To allow otherwise would result in piece-meal zoning that singles out property owners. MS AG Op., Scafide at *1-2 (June 10, 1986).

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 and Mississippi Code Annotated Sections 17-1-1 et seq. and do not prohibit the operation of such facilities in the City.

With respect to your fifth question, Section 19(5) of S.B. 2095 provides, in part: "No medical cannabis dispensary may be located within a one-thousand-five-hundred-feet radius from the main point of entry of the dispensary to the main point of entry of another medical cannabis dispensary."

As a general rule, municipalities and counties may not regulate activity that has been preempted by state law. Delphi Oil, Inc. v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719, 722 (Miss. 2013). The "Court resolves the issue of whether state law preempts local law by considering the express language of a statute to determine whether there is a direct conflict between the state statute and the local ordinance." Id. at 723. "[T]he relevant inquiry [is] whether the state statute prohibit[s] the local ordinance, or whether the local ordinance [is] an additional regulation not inconsistent with state law." Id. (Internal citation omitted.) A local ordinance that is "merely supplementary" to the state statute is not preempted by state law. Id. "Another method of examining the preemption question is to consider whether the proposed ordinance allows what state law prohibits, or prohibits what state law allows." MS AG Op., O'Reilly-Evans (Mar. 4, 1992).

Pursuant to the express language of Section 19(5) of S.B. 2095, a municipality may not allow dispensaries to be located less than one-thousand-five-hundred-feet of each other as such a rule would directly conflict with the statutory mandates. The one-thousand-five-hundred-feet distance operates as a baseline or a minimum distance between dispensaries. For example, a municipality cannot enact a regulation allowing medical cannabis dispensaries to be located within one thousand feet of each other. However, a local ordinance or regulation requiring a minimum distance greater than one-thousand-five-hundred-feet between cannabis dispensaries would not directly conflict with the language of Section 19(5) of S.B. 2095. Thus, Section 19(5) of S.B. 2095 does not preempt the City's authority to adopt an ordinance or regulation with a greater minimum distance than one-thousand-five-hundred-feet between cannabis dispensaries. As you noted in your request, the ordinance or regulation cannot make the operation of the dispensary impracticable in the jurisdiction. Section 19(2) of S.B. 2095. Ultimately, as this office has previously stated, "it is for a court of competent jurisdiction to determine the validity of a particular ordinance." MS AG Op., Martin at 2 (July 1, 2016); MS AG Op., Williams at 1 (Jan. 23, 2009); MS AG Op., Rutledge at *2 (June 5, 1998).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General