The City Council opts not to change business ordinance

The Tualatin City Council has reversed its decision to ban marijuana retail facilities. Shown: Firearms and marijuana confiscated during the September 2012 raid of The Human Collective.One reversed council vote effectively killed an ordinance that would have kept medical marijuana dispensaries out of Tualatin.

A proposed change to the municipal code would have forbidden the city from granting a business license to anyone found to be in violation of federal or state law. This tactic of blocking dispensaries through local business ordinances rather than through zoning has already been used in Medford, allowing the city to ban medical marijuana retail outlets that will be licensed and regulated by the Oregon Health Authority starting March 1, 2014.

Although the council supported the idea 4 to 3 during its Nov. 12 session, Mayor Lou Ogden’s move for a second reading of the draft ordinance failed to gain the support needed to proceed to a final vote.

Councilor Joelle Davis switched to a nay vote on Monday.

“I have spoken with a lot of people about the potential unintended consequence of the ordinance we were considering,” Davis said, adding she found it prudent to hold off on the issue until the OHA advisory committee released dispensary rules and regulations, which it will do Jan. 31.

“I want to make sure we draft an ordinance that is bullet-proof, and that is not going to put us in court, and not put the business community at unnecessary risk,” Davis explained.

Councilors Ed Truax and Frank Bubenik argued two weeks ago that such a change was little more than an effort to preempt state law and would likely open the city to litigation.

Truax also warned that the amended ordinance would make it easier for business owners to lose their licenses, which might encourage “disgruntled” residents to go after their least-favorite establishments.

“If we’re going to have a nuclear option, we at least need to discuss the nuclear fallout,” Truax said Monday.

“I know of dozens of cities in Oregon that are doing it, and none of those cities have been threatened by insurmountable nuclear attacks,” Ogden quipped.

But Truax and Bubenik also took issue with putting the city at odds with the state Legislature, which approved licensing and regulation of medical marijuana facilities last August with House Bill 3460. The Legislature’s counsel recently issued a nonbinding legal analysisstating cities could not override state law.

But the federal Controlled Substances Act still bans the possession and use of marijuana, and the at times uncertain language of that Nov. 5 opinion demonstrates that questions of liability and legality are far from resolved.

“There is some risk to city employees that issue a permit that violates Controlled Substances Act,” City Attorney Sean Brady said. “I’m not aware of any city employees that have been prosecuted.”

The city can still attempt to ban dispensaries, but it will take a new ordinance or a change in approach.

Ogden proceeded with a public hearing on the defeated draft, acknowledging the considerable list of those who signed up to make public comments.

Three citizens spoke in favor of a ban, largely arguing that marijuana “storefronts” would mean better availability and social acceptance of the drug, which would mean an increase in substance abuse.

“Why are my kids going to be riding their bikes by a medical marijuana dispensary?” Tualatin resident Sue Wise asked, questioning why a drug recommended by doctors was not simply being dispensed at regulated pharmacies.

Tualatin can count 125 growers, and 169 medical marijuana patients, registered with the Oregon Medical Marijuana Program. There are no dispensaries currently operating in the city.

The council will discuss alternative approaches to a medical marijuana dispensary ban during its Dec. 9 work session.

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