The city’s new pot law is illegal, according to an opinion rendered Wednesday by Tennessee Attorney General Herbert Slatery.
Memphis and Nashville passed laws last month that lowered city charges for possession of small amounts of marijuana.
The law here gave Memphis Police Department officers the choice of charging those caught with a half ounce or less of marijuana with a $50 ticket or the full state charge of up to a $2,500 fine and a year in jail.
But Slatery said in an opinion that, while a city’s authority to regulate police powers are broad, it is “subject to significant limitations.”
“One well-established limitation is that a municipality is not authorized to enact ordinances that conflict with either the federal or state constitution, the statutes of this state, or established principles of common law,” reads Slatery’s opinion.
Memphis City Council members passed the new marijuana law in early October after six weeks of debate on the matter. One, recurring concern from many council members was the fact that changing our city law would conflict with state law. Council member Worth Morgan repeated that he believed the issue was best left to state lawmakers in Nashville.
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Slatery said the law is illegal because it violates the Tennessee Drug Control Act of 1989 and it interferes with the powers of the District Attorney General.
“A municipal ordinance that attempts to regulate a field that is regulated by state statute cannot stand if it is contradictory to state law,” reads Slatery’s opinion.
Cities can pre-empt state law in certain circumstances, Slatery said, but the marijuana ordinance does not meet the requirements.
“The ordinance’s significantly lesser penalty provisions are repugnant to the state’s policy decision as to the requisite penalties for the offense of marijuana possession,” reads the opinion. “Moreover, the ordinance frustrates the state’s ability to enforce the [Drug Act’s] penalty provisions in a unified manner throughout Tennessee, which would result in disparate and impermissible unequal treatment of offenders.”
The option also states that the ordinance would strip a District Attorney General’s discretion in prosecution.
