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Homegrown marijuana sales legal under Minnesota constitution, lawsuit claims

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The timeline for some Minnesota marijuana sales may move up.

Retail licenses are still several months away, but a small group of people are hoping a law from the early 1900s gets them in business.

The state constitution changed in 1906 to allow us to sell things from our gardens or farms without a license after a farmer was punished for selling his homegrown melons.

The attorney general is now saying marijuana is a different story.

As he recovers from a major surgery, Patrick McClellan still has an easy laugh and expensive treatment.

The 57-year-old has muscular dystrophy and was among Minnesota’s first medical marijuana patients nine years ago.

He started growing his own supply when the price tag got too high, but that also came with a startup cost of almost $4,000.

His crop of two pounds recently came in, and he wanted to sell some of it.

"I think it's important to kind of offset the very large costs that home growers are having," McClellan told FOX 9.

When it comes to supplying other patients, the new law says you can give away up to two ounces of homegrown cannabis, but you can’t sell anything without a retail license.

McClellan and three other men sued, saying Article 13, Section 7 of the state constitution says no license is required for homegrown farm or garden products.

The attorney general’s office last week asked a judge to throw out the case.

Their number one reason is they say cannabis plants are not a product of farms or gardens. McClellan says that’s absurd.

"It's like saying that a tomato is not a tomato," he said. "We cannot give our lawmakers the ability to tell us that a plant is now not a plant."

The AG’s office says sales of controlled substances requires a license and anyone growing cannabis has to follow all the rules and regulations in the new law.

Plaintiff’s attorney Jeff O’Brien agrees his clients couldn’t sell marijuana to someone under 21, for example. But he says the state constitution opens to door for unlicensed sales on the small scale of what’s allowed for home growers.

"We're not talking about someone being able to open up a dispensary or a large, growing operation off of eight plants, four of which are flowering," said O'Brien, a lawyer at Chestnut Cambronne.

O’Brien says he's trying to get clarity without getting someone arrested or fined for illegal sales they believe are actually legal.

A judge is expected to rule on the motion to dismiss later this month, but the case is likely headed for an appeals court either way.

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