Medford's authority over pot shops raises flap

Legislators who sponsored a medical marijuana dispensary law are at odds with the League of Oregon Cities' assertion that Medford has the right to ban these facilities.

"Right now, the way we're looking at it, there is nothing in the statute that would pre-empt the city's authority," said Scott Winkels, a lobbyist with the league, which represents all 242 cities in Oregon.

The chief sponsors of House Bill 3460, Rep. Peter Buckley, D-Ashland, and Sen. Floyd Prozanski, D-Eugene, say their legislation doesn't permit cities to ban medical marijuana dispensaries, only to provide some local controls over hours of operation and location.

Medford recently toughened its codes in anticipation of HB 3460 to ban any business engaged in activity that is unlawful under federal, state or local law. Other cities are contemplating similar ordinances and would rely on federal law to ban dispensaries.

Marijuana is a controlled substance under federal law, but states with medical or recreational-use marijuana laws won't be prosecuted by the U.S. government as long as there's no money laundering, sales to minors or growing on public lands, the U.S. attorney general has said.

Winkels said he raised the issue of local control during a House meeting before passage of the bill, though he doesn't think Buckley was present at the meeting.

The league ultimately endorsed HB 3460 with the understanding that it would allow local control over medical marijuana dispensaries.

Buckley said legislative counsel will issue a written opinion that the bill doesn't allow cities to ban dispensaries. He urges cities to wait until the rule-making process for HB 3460 is completed prior to the law taking effect in March 2014.

Buckley has said the House bill is similar to Senate Bill 863, which gives the state authority to regulate genetically modified organisms. The only exception in the bill is that it allows Jackson County the ability to pass local legislation banning GMOs because of an initiative pending on the May 2014 ballot.

Winkels said he's seen preemptive language written into other legislation, but not in 3460.

"When the Legislature wants to pre-empt something, there is a way to do this," he said.

In the 11-page House bill, there is no mention of any local control over medical marijuana dispensaries. The sole authority for regulating the dispensaries is the Oregon Health Authority, with licensing from the Secretary of State's Office.

However, the Medford Municipal Code requires a business license for any enterprise, including a not-for-profit, that operates within city limits. Jackson County doesn't require business licenses.

County Commissioner Don Skundrick said the Board of Commissioners hasn't taken an official position on HB 3460.

"Personally, I don't think any of the three of us are in favor of the dispensaries," he said.

He said that he thinks most of the areas outside of local cities that are under county jurisdiction have little land that would be suitable for dispensaries, which are often compared to pharmacies.

HB 3460 has a provision that permits dispensaries on agricultural land. Skundrick said he sees potential conflicts with other state land-use laws that are fairly restrictive about setting up businesses on land zoned exclusive farm use.

Even if a person got a license for a dispensary in the county, Skundrick said a neighbor could potentially sue to stop it.

The county will continue to watch the progress of the rule-making committee for HB 3460, he said.

"We're on the sidelines at the moment," he said. "We will definitely need to revisit that when those final rules come out."

Jackson County took on a high-profile case when Sheriff Mike Winters denied a concealed handgun license to a medical marijuana patient in 2008, citing the U.S. Gun Control Act of 1968, which prohibits anyone who uses or is addicted to a controlled substance from having a firearm. Winters ultimately lost when the U.S. Supreme Court declined to hear the case.

Sen. Prozanski said the House Bill that he supported never envisioned giving local jurisdictions the right to ban dispensaries.

"My opinion is that the intent was that there wouldn't be an outright pre-emption option," he said.

He said local jurisdictions would have the ability to enact reasonable regulations over time and placement of dispensaries.

During testimony at the Legislature, Prozanski said he heard impassioned pleas from patients who wanted safe access to medical marijuana.

Two veterans suffering from post-traumatic stress disorder told legislators how beneficial marijuana was for their condition.

"Instead of being of whacked out on an opiate substance, they can actually function with medical marijuana," he said.

Prozanski said there was plenty of discussion about HB 3460 before it was passed.

"I don't ever remember somebody saying that a city can outright ban a dispensary within the city limits," he said.

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

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