City Council agrees on temporary ban on dispensaries

by: JONATHAN HOUSE - Medicinal marijuana, like the specimen pictured, is at the center of Tualatins recent debate about what the city is legally able to ban on a municipal level.If you can’t beat ’em, ban ’em — temporarily, at least.

In an effort to avoid both marijuana retail storefronts and litigation, the Tualatin City Council hopes to enact a six- to 12-month citywide moratorium on medical marijuana dispensaries.

House Bill 3460, signed in August, allows the Oregon Health Authority to license and regulate medical marijuana dispensaries. But the council has expressed concern that by following the expanded state law, they will be in violation of federal law — namely, the Controlled Substances Act.

City Attorney Sean Brady said that either way, Tualatin would be in conflict with some form of the law.

“So knowing you have that risk out there, is there interest in pursuing a vehicle like a ban or are you more interested in accepting they’re going to be here, and how do you deal with it?” Mayor Lou Ogden questioned.

Last month, the council decided that changing business license protocol, as cities like Medford have done, posed too great an unintended risk to other businesses.

Councilor Joelle Davis, who changed her vote between the Nov. 12 and Nov. 25 council meetings, was defensive of her position on Monday.

“I believe if we go down that road of trying to do an outright ban, the marijuana lobby has a tremendous amount of money, allowing them to have a jurisdiction within the Portland metropolitan area,” she said, expressing concern that Tualatin might be made an example of for the rest of the region.

She urged the use of zoning restrictions, and land-use regulations, to effectively prohibit dispensaries.

Davis added that areas hypothetically zoned for dispensaries should have minimal exposure to children, easy access for law enforcement and should somehow be known as an area designated specifically for card-carrying medical marijuana patients.

Currently, nothing about land-use restrictions keeps such facilities out of Tualatin, Brady explained.

“Whether it’s a total ban or additional zoning that restricts where they can locate, they can still argue these restrictions are preempted by state law,” he said. “Without further actions of the council, if a business came in today, there’s nothing in our land-use process that would prohibit them from being located in the city.”

The council agreed on the dangers of including the language of such a ban in a city ordinance.

“When you add the language of prohibition, which is what we were doing, it invites a whole different set of problems,” Ogden said. “I’m sorry we’re here, but this is how it is.”

“I don’t think we can pass a ban against this and keep ourselves out of court,” Councilor Ed Truax agreed. “My interest is in us not talking about spending a half million dollars to defend ourselves. If an outright ban doesn’t work, I’m with (Davis). I want to deal with this as a land-use issue,” he said, emphasizing he wanted to make zoning regulations “as onerous as we can get away with.”

Ogden remained uncertain the city could create legal restrictions that would keep them on the right side of the law while making legalized marijuana retail centers unwelcome.

“My question would be, does it seem feasible we could create a legal sieve tight enough that (a dispensary) can’t get through?” Ogden asked.

Even the logistics of a temporary moratorium were vague at the Monday meeting, but with the dispensary regulations due to be released Jan. 31, 2014, and dispensary applications being accepted in early March, the council agreed on a kind of freeze in dispensaries as the city explores its options.

“In the meantime,” City Manager Sherilynn Lombos said, “we’ll ban it until we can come up with regulations.”

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