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VOL. 131 | NO. 236 | Monday, November 28, 2016

Nashville, Memphis Respond Differently to Pot Ordinance Opinion

By Bill Dries

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A legal opinion from the Tennessee attorney general requested by two Shelby County legislators has again put Nashville city leaders in the lead as municipal marijuana ordinances enacted there and in Memphis have taken a turn toward the courts.

Ordinances in Memphis and Nashville that allow cops to write a ticket with a $50 fine for possession of a half ounce or less of marijuana appear to be on their way to court.


Both the Memphis City Council and the Nashville Metro Council recently passed ordinances that allow police officers to issue a $50 civil fine to someone caught with a half-ounce or less of pot instead of charging them with criminal misdemeanor possession.

The Nov. 16 legal opinion from Tennessee Attorney General Herbert Slatery says the ordinances are not enforceable and regulate something already covered by state law.

“A municipal ordinance that attempts to regulate a field that is regulated by state statute cannot stand if it is contradictory to state law,” Slatery wrote.

The legal opinion was requested by Republican state Sen. Brian Kelsey of Germantown and Republican state Rep. Ron Lollar of Bartlett.

In response, the Memphis Police Department has suspended use of the new city ordinance, with only one ticket, or civil summons, having been written between the effective date and the legal opinion.

The suspension of enforcement was recommended by Memphis Mayor Jim Strickland’s administration as city attorney Bruce McMullen reviews the legal opinion “to determine the best course of action moving forward,” said city communications chief Ursula Madden.

Nashville’s Metro Mayor Megan Barry has taken a different approach to the legal opinion from Slatery.

Metro government’s director of law, Jon Cooper, said in a Nov. 21 statement that he had reviewed the legal opinion and understood Slatery’s reasoning.

“However, we believe we have a good faith legal argument that the ordinance is not pre-empted by state law,” Cooper added in the statement. “At this point, we do not believe a change in the police department’s enforcement practice is warranted.”

The Nashville ordinance had broader support beyond the Metro Council. It was supported by Barry as well as law enforcement officials there.

In Memphis, Memphis Police Director Michael Rallings was a vocal critic of the ordinance. Strickland did not take a stand, ultimately agreeing that he would not stand in the way of the ordinance once passed by the council.

The city council gave final approval to Memphis’ ordinance after the Metro Nashville Council gave final approval to its version. Shelby County Commissioners are to take a final vote next month on a similar ordinance that would apply to unincorporated areas of Shelby County.

City Councilman Berlin Boyd, the sponsor of the Memphis measure and the most vocal advocate of it, posted on Facebook Monday that Slatery’s legal opinion is “just that, his opinion.”

“I strongly feel that Memphis needs to take a bold stand and move forward with our ordinance,” Boyd added. “We cannot afford to be bullied by legislators who are clearly against our city. I will assure you that this isn’t the end of the fight. It’s just the beginning.”

The coming legal clash is likely to revolve around the very point Cooper makes about whether the Tennessee Legislature, in passing a set of drug laws, has pre-empted local bodies like a city council from enacting ordinances that set civil fines for the same conduct.

Slatery, in his legal opinion, conceded that the Legislature “has not expressly pre-empted the field of controlled substances regulation from all local government regulation.”

“Nevertheless, because the Drug Control Act provides a comprehensive and unified system of drug offense regulation, which includes an integrated penalty and punishment schedule, one could conclude that the General Assembly has impliedly pre-empted the field with respect to the penalties that may be imposed for drug offenses in the state.”

Slatery also reasons that there is a clear conflict between the ordinance and the state law – so clear that it isn’t necessary for the Legislature to expressly say local bodies cannot pass ordinances on the matter.

Slatery also argues that the pot ordinance “impedes the inherent discretion and responsibility of district attorneys general to prosecute violations of the Drug Control Act.”

The reasoning there is that because a fine is involved, it becomes a serious enough matter under state law that a district attorney couldn’t prosecute the civil offense as a criminal matter because it would violate Constitutional guarantees against trying and punishing a person twice for the same offense.

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