Medford marijuana dispensary ban illegal, says state legal committee

A legislative legal committee has determined Medford's attempt to ban medical marijuana dispensaries violates the spirit of two recent laws.

The five-page opinion prepared for state Rep. Peter Buckley, D-Ashland, finds that state law preempts local law.

The legal opinion, sent Nov. 5, states that local bans on medical marijuana dispensaries are invalid under Senate Bill 863 and House Bill 3460.

SB 863 gives the state the authority to regulate agricultural crops and businesses. HB 3460 allows for the creation of medical marijuana dispensaries throughout the state.

"We conclude that HB 3460 preempts most municipal laws specifically targeting medical marijuana facilities," the opinion stated.

The Medford City Council enacted an ordinance in September that would effectively ban medical marijuana dispensaries based on federal law. The council attempted to head off the rolling out of dispensaries after March 2014.

The Medford ordinance now states a business must be compliant with city, state and federal laws before it can be issued a business license.

Medford already has attempted to revoke the business license of MaryJane's Attic and MaryJane's Basement over allegations of unlawfully dispensing medical marijuana. The business has appealed the decision.

Medford counsel John Huttl previously had issued an opinion that the city was on solid legal ground in denying a business license based on federal law.

He cited various court opinions that have upheld local jurisdictions as they wrestle with Oregon's medical marijuana law.

In response to the legislative counsel opinion, Huttl said, "I respectively reserve the right to have a different opinion than them."

He said it's not uncommon for lawyers to have different opinions.

Huttl said he hasn't been directed by the City Council to go to court on the issue, if that becomes necessary.

The legislative counsel likened Medford's local action to Jackson County Sheriff Mike Winters' attempt to withhold a concealed handgun permit to a medical marijuana patient who had a clean criminal record.

Ultimately, the U.S. Supreme Court declined to hear the sheriff's case after every court in the state rejected his argument that federal law preempts state law.

Buckley, who championed HB 3460, said the legislative counsel opinion confirms what he believed was the legislative intent behind both bills.

He said the creation of medical marijuana dispensaries is a way for the state to curtail black market activities as well as provide additional security and oversight surrounding marijuana transactions.

"I keep saying this, but the best course of action is to work with the cities and counties and work through their concerns," he said.

A committee has been meeting to create the rules that will govern the operation of the dispensaries.

Geoff Sugarman, who is on the committee, said the dispensary law was designed to help patients find a secure method of receiving their medication.

"You have a lot of patients down there," he said.

Currently up to 200 dispensaries are operating without licenses in the state, he said. Many communities are turning a blind eye or are tacitly allowing them to operate, he said. Other communities, such as Medford, are conducting raids.

He said the new law will create a legal framework for dispensaries to operate in a more regulated fashion with greater oversight and accountability. He urged Medford and other cities to voice their opinions to the committee rather than fight the process before it has finished.

"If cities like Medford go forward with a ban on dispensaries, it could be a long and protracted legal effort," he said. "It's time for the city to sit down at the table to see if we can find a way to address their concerns but still provide safe access to patients."

Reach Mail Tribune reporter Damian Mann at 541-776-4476 or Follow on Twitter at @reporterdm.

Share This Story