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Tualatin bans 'pot shops'


Council argues whether to be on side of state or federal law

by: SUBMITTED PHOTO - Last week, the Tualatin City Council banned medical marijuana retail facilities, like The Human Collective, formerly of Tigard. Shown: Firearms and marijuana confiscated during the September 2012 raid of The Human Collective.Tualatin has become the most recent city in Oregon to ban medical marijuana retail facilities outright, in a move that puts the city at odds with new state law — and at risk of a lawsuit.

In anticipation of changes to medical marijuana regulation that take effect March 1, the City Council voted 4 to 3 last week to refuse business licenses to would-be dispensary owners. An amended municipal code now prohibits “the issuance of a license to any person that engages in a business activity that violates city, state or federal law.”

But councilors Ed Truax and Frank Bubenik bristled at what they viewed as the city’s attempt to override state law. House Bill 3460, which Gov. John Kitzhaber signed Aug. 14, allows the Oregon Health Authority to license and regulate medical marijuana dispensaries.

Under HB 3460, dispensary owners are required to apply to the OHA for licensing, and dispensaries must be located either on agricultural land or in a commercial, industrial or mixed-use zone. Dispensaries cannot share an address with growing sites and must be more than 1,000 feet from schools and other medical marijuana facilities.

To be licensed through OHA, a dispensary must already be registered as a business.

In a statement to Secretary of State Kate Brown, Kitzhaber explained the law was largely motivated by concern for community and patient safety, and expressed optimism that licensing fees would fund the OHA’s rigid regulation of medical marijuana retail sites. Kitzhaber acknowledged the law does not protect individuals or businesses from federal prosecution.

Mayor Lou Ogden objected to what he described as a conflict between state law and the federal prohibition on marijuana.

“Until that’s resolved, I prefer to be on the side of federal law,” he said.

Joelle Davis supported the ordinance amendment, arguing for the kind of control she wished the city had over strip clubs.

“I don’t think smoking grass is necessarily free speech,” she said.

But Truax characterized the council’s move, and its decision to declare an emergency in order to expedite the process, as premature. He pointed out the OHA won’t begin accepting dispensary applications until March 1.

Bubenik argued the OHA had yet to release dispensary regulations, which are being drafted by a 12-member advisory committee that includes two of the bill’s cosponsors, the Lincoln County district attorney, medical marijuana advocates, executive director of the Oregon Board of Pharmacy, a dispensary owner and the Corvallis chief of police. Dispensary rules are due Jan. 31, 2014.

“My idea is to wait until after they settle this,” Truax said. “Or we can just be honest and call this the ‘unsavory business act.’”

“But on the other hand,” he added, “if what we really want to do is jump into the middle of an issue that’s not at all settled, then you can vote for this and put us right squarely in the middle of this mess tonight and declare an emergency clause to do it so we don’t even have to wait 30 days to start fighting with these people. Because if you pass this, you’re going to end up in court.”

OHA’s understanding is that HB 3460 does not require cities to grant licenses. Tom Burns, director of pharmacy programs at the OHA, tried to separate his agency from the debate.

“What the local rules are is not something that is the purview of the Oregon Health Authority,” he said.

Tualatin supply and demand

There are no medical marijuana dispensaries currently operating in Tualatin, but there are 169 cardholding medical marijuana patients in the city, and 4,142 in Washington County, according to the Oregon Public Health Division, which oversees the Oregon Medical Marijuana Program. There are 125 growers registered in Tualatin, with some expected overlap with cardholding patients, as the Oregon Medical Marijuana Act only allows medical marijuana patients to obtain their supply from a registered individual. Such growers can maintain up to six mature plants, and serve no more than four registered patients.

Authorized growers can only set the price of marijuana based on the cost of supplies and utilities necessary for production, but cannot charge for labor.

Tualatin is not alone in the debate over whether HB 3460 violates the federal Controlled Substances Act, which prohibits the possession and use of marijuana. The council’s approach echoes that of Medford, which imposed a nearly identical ban on medical marijuana facilities last month.

Tigard has no plans to introduce such a ban, according to Assistant City Manager Liz Newton, who said the city is trying to understand the nuances between state and federal law.

That issue was taken up by the state’s legislative counsel, which argued that HB 3460 does, in fact, preempt local authority.

In a nonbinding legal opinion issued Nov. 5, attorneys for the Legislature found 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.”

The complex legal analysis classifies medical marijuana plants as “nursery stock,” subject to laws that safeguard agricultural production. Attorneys also cited the 10th Amendment of the U.S. Constitution, which says the federal government cannot require state and local bodies to enforce federal laws.

Rep. Peter Buckley (D - Ashland), one of the bill’s co-sponsors, requested the analysis.

For more information about changes to Oregon’s medical marijuana laws, visit our website: TualatinTimes.com.