A bill in Oregon would let local governments regulate medical marijuana dispensaries but wouldn’t let them ban the shops.
The state Senate Judiciary Committee approved the bill Feb. 13 and passed it on to the full Senate, where it will face a floor vote. If it passes, it would stop several cities and towns that have already tried to block dispensaries.
“It will drive all these cities and counties into court,” said Rob Bovett, attorney for the Association of Oregon Counties, which supports the bans.
Oregon voters first approved medical marijuana at the polls in 1998, one of the earliest states to do so. But patients were only able to grow their own weed or get it from a caregiver growing for a short list of other patients. Dispensaries eventually appeared, but they were unregulated and unreliable.
Then, last year, the state enacted a law allowing dispensaries. It takes effect in March.
As soon as it became clear pot shops would be legal in Oregon at last, insular communities began plotting to ban the stores. They used the usual tactics, changing their zoning codes, imposing new business regulations and, in a favorite new approach, barring anything that violates federal law.
Though pot is legal in Oregon for medical uses, it is illegal under federal law. President Obama’s administration has promised not to interfere with states that legalize for medical or recreational purposes as long as they enforce certain federal criteria, such as preventing interstate trafficking.
Several communities tried a similar tack in Michigan until they ran into a state Supreme Court ruling this month. The court held that municipalities may not thwart state law, even in service of federal law.
Not only would that likely be the outcome in Oregon, but the amended bill approved by the Judiciary Committee would seem to prevent local governments from using that argument in the first place.
The legislation originally contained a provision that allowed communities to prohibit dispensaries entirely. But it was stripped before the committee voted.
“Cities and counties have never had that authority to preempt a medicine that is authorized within the state,” said state Sen. Floyd Prozanski.
Non-binding opinions from an agency that gives legal advice to the legislature concluded Oregon’s medical marijuana law put regulatory powers in the hands of the state, not municipal governments.
“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,” wrote Charles Taylor, senior deputy legislative counsel at the Office of Legislative Counsel.
Not all towns in Oregon are turning to bans as a response to coming dispensaries. Many are enacting new regulations to limit the number and location of the shops. Others are using temporary moratoriums to buy time while they consider their options.