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Fairview establishing roadblock to marijuana dispensaries

Cities say they will back federal law and deny business licenses


by: OUTLOOK PHOTO: JIM CLARK - A medical marijuana dispensary near Southeast 170nd Avenue and Division.In the midst of a statewide debate on whether local governments can ban medical marijuana dispensaries, the Fairview City Council is working on a code revision that would indirectly block the dispensaries from gaining a foothold within the city limits.

The legal battle comes in the wake of House Bill 3460, which Oregon lawmakers passed in August.

The new law goes into effect next year and allows the opening of state-regulated medical marijuana dispensaries.

Under existing state law, Oregon medical marijuana cardholders can grow pot themselves or find someone to grow it for them. And with the new law, cardholders will have an additional option of buying their medicine from state-regulated outlets.

However several cities are attempting to ban such dispensaries from opening in their cities altogether.

The Fairview City Council on Dec. 4 unanimously approved developing an ordinance to revise its municipal code to deny business licenses that do not comply with federal, state or local law, Councilor Steve Prom said.

“We are working on language that would prohibit businesses within the city of Fairview that violate federal law,” Prom said.

Because federal law maintains marijuana is an illegal, controlled substance, Fairview would be prohibited from granting a business license to a dispensary of medical marijuana.

“We are trying to improve the quality of life here in Fairview,” Mayor Mike Weatherby said. “To allow (medical marijuana dispensaries) would be against everything I have striven for in my 11 years to improve the city and what we offer.”

Fairview isn’t alone in this code revision. Gresham, Troutdale and Wood Village also prohibit the issuance of licenses to businesses that don’t comply with federal law. Wood Village, however, may reconsider once the rules for HB 3460 are implemented next year.

The state plans to roll out its rules by March.

While cities are trying to hold the line against medical marijuana dispensaries, Rep. Peter Buckley, D-Ashland, co-sponsor of House Bill 3460, said regulation of medical marijuana facilities should be left to the state.

Buckley asked the Office of Legislative Counsel to review the law to determine whether city governments have authority to regulate dispensaries.

Signed by Charles D. Taylor, senior deputy legislative counsel, the legal analysis dated Nov. 5 concluded that HB 3460 “preempts most municipal laws specifically targeting medical marijuana facilities.”

Taylor wrote, “Finally, we conclude that while a municipality may not be required to violate federal law to comply with a conflicting state law, a municipality may not act contrary to state law merely because the municipality believes that the action will better carry out the purposes and objectives of federal law.”

On the other hand, the League of Oregon Cities has advised Oregon’s 242 cities that they may impose restrictions on medical marijuana dispensaries or prohibit them altogether.

Gresham

Gresham City Attorney Dave Ris said the Oregon League of Cities has advised that the recently adopted legislation does not prevent the ability of local government to have provisions, such as the one adopted by the city of Gresham.

Gresham’s code provision says “the city will not issue a business license to a business that does not comply with federal law.”

“At this point there hasn’t been any discussion about changing the code,” Ris said.

To those who have inquired about opening medical marijuana dispensaries in Gresham, Ris said the city has cited its code and denied the business licenses.

Troutdale

Troutdale City Manager Craig Ward said the city of Troutdale has not dealt with the issue yet because they haven’t needed to. The city has had a policy in place for many years.

“Our policies right now preclude approving a business license that are not compliant with state and federal law.”

He said dispensaries are not compliant.

However, on the council’s January agenda, city councilors will meet the request of an individual to speak about medical marijuana dispensaries, HB 3460 and how it relates to business license approval criteria for Troutdale.

The discussion will be held at the Jan. 14 Troutdale City Council meeting.

Wood Village

An official with the city of Wood Village said the city code was written long before medical marijuana legislation was enacted.

But now that the Oregon statute has changed, Peterson said, “The council wants to revisit that when the administrative rules are written. The Department of Human Services is writing the rules to implement the (new) law.

“When that is done, we will go back to our council and see what they say about medical marijuana dispensaries,” Peterson said.

As for Fairview, councilors have agreed they won’t allow medical marijuana dispensaries to open in their city.

“Medical marijuana dispensaries will be prolific in Portland,” said Councilor Prom, a chiropractor. “I don’t see any reason we need to add additional to our city.”

Portland officials have said they don’t plan to restrict dispensaries.



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