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Senate blocks cities' ability to ban pot shops

Marijuana discussion heads to the House


by: JONATHAN HOUSE - Medicinal marijuana, like the specimen pictured, is at the center of Tualatin and Tigard's recent debate about what a city is legally able to ban on a municipal level.Bud. Roach. Ganja. Weed.

Call it what you will, in its medicinal form, cities across Oregon call it nothing but trouble.

Gresham and Medford led the charge to block dispensaries from opening doors within their borders. That surge has caught on in Washington County, where several cities and the county have taken stands banning medical marijuana dispensaries.

But the state Senate voted Tuesday to hinder county and city governments’ ability to ban medical marijuana dispensaries, which will become legal in Oregon starting March 1.

Initial drafts of Senate Bill 1531, introduced earlier this month, allowed city and county governments to ban medical marijuana dispensaries outright. But an amendment to the bill, adopted Feb. 13, did away with any language of prohibition. Instead, the bill now allows cities and counties to impose only “reasonable regulations” on registered medical marijuana facility operations. The bill does not give them the ability to deny such facilities outright.

As SB 1531 heads to the state House of Representatives for review, it threatens Tigard and Tualatin’s best intentions to say “not in my backyard” to what are colloquially known as “pot shops.”

The discussion has been raging since fall of 2013, and the reasons for opposition vary: In Tualatin, councilors have debated a ban in order to curb the supply of what is seen as a gateway drug.

In Tigard, it’s a different matter entirely.

The city banned dispensaries last week, saying it needed more time to consider what — if any — regulations it would be able to place on the businesses.

“It would benefit the city to take the time and study the issue,” said Tigard city planner John Floyd. “We will be able to identify any challenges to what we can practically enforce and how much authority local governments have to untangle some of those questions.”

That question has plagued city leaders across the state since HB 3460 was signed by Gov. John Kitzhaber in August 2013. But the law legalizing medical marijuana dispensaries did little to address what local governments could do to regulate the businesses, and a nonbinding legal opinion issued Nov. 5, 2013, by the Legislative Counsel Committee added little clarity. The opinion cited the 10th Amendment of the U.S. Constitution, which states the federal government cannot require state and local bodies to enforce federal laws. Still, much of the argument hinged on the debatable classification of medical marijuana as “nursery stock” eligible for agricultural production safeguard laws.

SB 1531 was authored to address the confusion.

Tigard City Councilor Gretchen Buehner — the lone vote against the Tigard ban — said cities should refrain from the prohibition until they get more facts. “Tualatin bought themselves a very expensive lawsuit that’s coming down the pipe,” said Buehner.

In fact, daunted by the prospect of a lawsuit, the Tualatin City Council declined to follow the lead of Medford, which refuses to issue a license to any business seen to be in violation of federal law.

Instead, Tualatin has been debating a temporary moratorium on medical marijuana dispensaries within city limits.

Tigard city officials said the ban isn’t to keep people from getting their hands on the drug.

“Medical marijuana is legal in Oregon,” said Tigard Mayor John L. Cook during the Feb. 11 meeting’s dispensary discussion. “We are not here to discuss whether it’s a good idea to have it or not.”

Tigard councilors said the ban would be a stopgap while it gets its affairs in order. Officials said the ban has little to do with the pros or cons of medical marijuana.

“The medical evidence is clear,” said Councilor Jason Snider. “You can argue that you don’t like it, but the science is there.”

In Tualatin, Councilor Ed Truax played devil’s advocate during Feb. 10’s discussion of a possible moratorium.

“This is a very fluid situation,” Truax said, adding that the state Legislature had a reading of SB 1531 scheduled the following day. “In the meantime, I don’t think the city’s on fire.”

Ogden disagreed. Absent a strong statement from the Legislature, like SB 1531, he said, he doubted the council’s ability to agree on a tactic to keep dispensaries out of town.

“We can’t do a chicken ordinance in six months,” Ogden said. “That’s not funny. I don’t think we can do this by the end of the year, to be honest with you.”

SB 1531 would declare an emergency and would go into effect March 1, the same day HB 3460 would allow the Oregon Health Authority to begin accepting applications from dispensaries.

Like cities, counties have also responded to dispensaries with mixed results. In Multnomah County, several dispensaries operate openly. Law enforcement authorities say officers have more important things to do than raid medical clinics.

Washington County, on the other hand, has made a name for itself with its zero-tolerance policy toward marijuana.

The last dispensary in Washington County closed its doors in October 2012, after it was raided by the Washington County Sheriff’s Office.

That clinic, The Human Collective dispensary on Pacific Highway, re-opened a few months later in Multnomah County.

Last month,the Law Enforcement Council of Washington County declared its opposition to medical marijuana dispensaries in an official statement, outlining concerns of increased marijuana-related exposure cases and illegal interstate drug trafficking.

The restrictions placed on dispensaries could include rules about how close to schools the businesses can operate, and other restrictions, similar to those already placed on strip clubs or pornography shops in town.

“We regulate eating and drinking establishments, and we also regulate adult entertainment,” Floyd said. “There are several ways we can examine them.”

“What we are saying is that we need to carefully consider the land-use implications and what it means,” Snider said. “There are too many questions in the law and conflicts in state and federal law. We need to talk about it more.”

Tigard’s ban will last until the year’s end, if not lifted sooner.

The Tigard City Council agreed to reconsider the ban following the Legislature’s short session, which is scheduled to end in March.

During its Feb. 24 meeting, the Tualatin City Council will hold a second reading of an ordinance to temporarily prohibit medical marijuana facilities.



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