“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.”
n September, officials in the Southern Oregon city of Medford voted to ban medical marijuana dispensaries. In October, another Southern Oregon mayor, Darin Fowler of Grants Pass, warned dispensaries would hurt his town’s “tourism and retirement population” and vowed to vote on a ban before the end of the year. By November, two Central Oregon cities, Madras and Metolius, also determined that dispensaries should be banned.
Now all four of those cities have just been issued a stern rebuke by the state’s Office of Legislative Counsel. Last month the state legislature passed HB 3460, a law to establish and regulate medical marijuana retail facilities in Oregon, and, according to Charles D. Taylor, the senior deputy legislative counsel, that law “preempts most municipal laws specifically targeting medical marijuana facilities.”
Officials in Medford cited marijuana’s illegal status under federal law and changed city business license requirements to include compliance with all state and federal laws. Mr. Taylor swatted away that concern, writing, “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.”
Another factor in the legislative counsel’s opinion is the earlier passage of the so-called “GMO Law.” This law was written so only the state, not municipalities or counties, can regulate agricultural seeds and their products. While it was intended to prevent of patchwork of local laws regarding genetically-modified crops and not to protect medical marijuana per se, nobody can deny cannabis is the product of an agricultural seed. Mr. Taylor opined that the GMO Law would “present some barriers” to cities trying to ban dispensaries.
The Legislative Counsel’s opinion isn’t binding and Scott Winkels, a lobbyist for the League of Oregon Cities, still believes cities can legally maintain local control over (read: ban) dispensaries. However, the opinion is read by most as a clear indicator that banning dispensaries would lead cities into a lengthy, costly, and ultimately fruitless court battle.
With this opinion and the passage of HB 3460, Oregon’s regulation of medical marijuana dispensaries may be the best in the country. California’s Supreme Court has ruled cities can ban dispensaries, and at least 180 of them have. Washington’s dispensaries aren’t technically legal and may be phased out in favor of recreational pot shops. Unlike most other dispensary states’ limits of one ounce or less, Oregon makes no limit on how much marijuana can be purchased, other than the medical possession limit of a pound and a half. Oregon has no cap on total number of dispensaries, like Arizona’s “one dispensary per ten pharmacies." And unlike Colorado and other “seed-to-sale” or “vertically integrated” states, any Oregon cardholder will be able to sell usable marijuana and seedlings to any Oregon dispensary, which will then bear the burden of state-mandated pesticide, mold and mildew testing.