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Town Council Bans Retail Marijuana

Establishments in Fort Fairfield


By:  David Deschesne

Fort Fairfield Journal, August 2, 2017


   The Fort Fairfield town council recently enacted the proposed ordinance 17-08 to expressly prohibit retail marijuana establishments including retail marijuana stores, retail marijuana retail cultivation facilities, retail marijuana products and manufacturing facilities, retail marijuana testing facilities and retail marijuana social clubs within the town of Fort Fairfield. 

   A State law passed by referendum last Fall allowing for the legalization of marijuana use in Maine.  However, the voters of Fort Fairfield voted against that referendum question 989 to 684. 

   According to the ordinance,  “No person or organization shall develop or operate a business that engages in retail or wholesale sale of retail marijuana product as defined by 7 MRSA Section 2442.  Nothing in this ordinance is intended to prohibit any lawful use, possession or conduct pursuant to the Maine Medical Marijuana Use Act 22 MRSA C 558.”

   This ordinance took effect immediately upon enactment by the municipal legislative body.  Unless otherwise provided, it will remain in effect until amended or repealed. 

   After a motion and second, town councilman Scott Smith spoke in opposition to the ordinance because of its severe limitations on developing businesses for what is now a legal product in this state.  “I had a chance to talk to Mr. Risner and had an opportunity to come to the public hearing.  At the public hearing I saw fifty percent for, fifty percent against.  So it's kind of hard to get a balance of what the community wants.  I understand the vote to oppose was nine hundred eighty-something, I was one of those people.  I feel that once State law is enacted we should come back and review this ordinance and have an opportunity to maybe allow businesses because marijuana is here.  It's been here.  I know what the results are, they are not good.  If state law is enacted making it legal to do that, I'd hate to see a business or people who want to come in and cultivate marijuana to turn them away.  We have an economic development committee that is working to bring businesses in.  To do this, you're forcing businesses away.”

   Town manager, Jim Risner answered Mr. Smith's concern,  “The ordinance does say it remains in effect until amended or repealed so council can at any time either amend or repeal or replace the ordinance.”

   “I understand that,” said Smith.  “I just don't feel that it would happen.  It would probably be put by the wayside unless somebody forcefully tried to bring it back.” 

   Town councilman, John Herold noted that everything the municipalities and states are doing is merely academic due to the federal law prohibiting marijuana is still in effect.  “This whole process, state law local ordinances and so forth - even medical marijuana is still illegal under federal law.  That has not changed.  Now,it may change and in the opinion of some perhaps it should change but the fact is it hasn't changed, yet.  And anyone that engages in this activity is in violation of federal law.  The previous administration chose to not get too serious about enforcing it.  Perhaps the current administration may get serious about enforcing it.  So this is a risk everybody takes.”

   Herold also noted that a marijuana related business probably won't be able to get a business bank account or a credit union account since marijuana is still illegal at the federal level.

   While the prohibition of marijuana is still in effect at the federal level, the federal law in and of itself is illegal and technically unenforceable due to the 10th amendment to the U.S. Constitution that all legislators and law enforcement have sworn to uphold. 

   The tenth amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

   What this means in simple language is if a power was not delegated to the federal government or prohibited by the Constitution to the States, that power falls to the State legislatures or the people within that state.  Since there is no authority in the U.S. Constitution granting the federal government the power to outlaw or otherwise regulate marijuana, and nothing that says the States can't make it legal and regulate it, it is - according to this amendment - up to the States to decide for themselves and there can be no federal government involvement in the decision making process.  They simply have never been granted the authority.

   The federal government also does not have any authority to pass any other laws that are enforceable in any of the States.  This prohibition against federal law is expressly described in the U.S. Constitution at Article 1, Section 8, Clause 17 which clearly defines the only places the federal government (Congress) has any jurisdiction to legislate and it does not grant them authority to legislate or enforce federal law within a State or States outside of that very narrowly defined definition.

   In decades past, the U.S. government and its lackey Supreme Court has twisted and contorted the Constitution to interpret the so-called “Commerce Clause” at U.S. Constitution Article 1, Section 8, Clause 3 - one that allows the feds to regulate commerce between states - as giving them authority to regulate businesses within states that have products that cross state lines even though that wasn't the original intent of that clause.  However, products such as marijuana can be potentially grown, manufactured, sold and consumed within the same state without crossing state lines thus rending even the U.S. government's twisted interpretation of the Commerce Clause moot.  But, the U.S. government has habitually and historically ignored their own laws, and own regulations as set forth in the U.S. Constitution and pretty much do whatever they want.  This was the cause of the War of Northern Aggression (i.e. “Civil War”) where the Southern States rebelled against the Northern States and the U.S. government for unfairly and disproportionately levying import/export taxes on Southern ports of entry (it was not started to “free the slaves” as popular history books now proclaim).  The war ended by forcing all States and their respective inhabitants to be subject to the whims of a rogue federal government that has arbitrarily decided the U.S. Constitution no longer applies to them when it is not convenient or expedient for them or their political bosses.

   Given the power and intent of the 10th amendment, the reality is the Feds at this point will do what they want regardless of their lack of lawful authority.  Until that changes, we are forced to conform to their unlawful rule.

   Town councilor, Melissa Libby also had some reservations on the proposed ordinance.  “I agree that it is a risk to have something like this in town and a social club is probably not fit for Fort Fairfield; but a retail establishment and social club I find are two very different things,” said Libby.   “I think that if we're not willing to take a risk sometimes then we're going to remain where we've always been and another town is going to take a risk and that business is going to go there.  We're talking all the time about having businesses come in I just think that we should keep an open mind if it is regulated and it's not something that's going to be a detriment to us because there are regulation issues that it should at least be considered on a case-by-case basis.  [For example] you can have someone that's very responsible running a business that's not sitting in their shop smoking or using marijuana recreationally while they're running their business.  I think a lot of it is misinterpreted.”

   Town councilman, Mitch Butler has chosen to side with the voters in Fort Fairfield as his reason for supporting the ordinance.  “I don't partake and I don't believe in smoking marijuana and never have.  My philosophy when I voted for and started this whole thing was the way the townspeople voted,” said Butler.   “The people in Fort Fairfield voted to not have marijuana legalized and I'll stick with that.  If we have another ballot on the line and people come down and it turns the other way then I'll wholeheartedly support it [despite] my feelings on it.  But for businesses and stuff like that, I don't think Fort Fairfield can make an awful lot of money on the marijuana business.  That's the way I feel about it and that's why I'm going to stick with it.  If the townspeople come out and vote at a referendum - I don't care if it's next year at a referendum - if they vote for it then I'll agree with it a hundred percent.  But until they do, I have to go with the people that voted on it in the last election and fifty-nine percent said no.”

   The Fort Fairfield town council voted to approve the ordinance with councilman Scott Smith being the only dissenting vote.