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City medical marijuana dispensaries up in smoke?


Council considers how to act in light of burgeoning legalization movement

by: PAMPLIN MEDIA GROUP FILE PHOTO - Public attitudes toward marijuana are changing rapidly across the United States. Voters in Washington and Colorado legalized recreational use of the drug in 2012, while 20 states, including Oregon, now allow citizens to grow and possess marijuana for medical purposes.

Federal law, however, remains unchanged; any possession or distribution of marijuana remains illegal and it remains classified as a Schedule 1 controlled substance with “no currently accepted medical use.”

In states that allow medical marijuana, this is causing headaches for local jurisdictions that want to regulate medical marijuana dispensaries and related businesses.

Some, like the city of Portland, have taken a more laissez-faire approach and currently allow dispensaries, which can be found in commercial areas in many parts of the city. Others are looking for legal ways to prohibit such businesses altogether.

All this has left city of Wilsonville officials wondering if they, too, should adopt an official policy toward medical marijuana. The city said it has not received any applications from medical marijuana businesses to date. But given current trends it almost seems like a matter of time before it occurs.

“The process seems to be in flux, and very possibly, very likely will be considered for modification by the Legislature very soon,” Wilsonville Mayor Tim Knapp said at the city council’s Jan. 6 meeting. “But in the interim, the question is whether the council feels like trying to exert some influence over commercial operations of this type in the city or not.”

The council will next consider the matter at its Thursday regular meeting, which starts at 7 p.m. at Wilsonville City Hall.

The Legislature’s 2014 session, meanwhile, opens Feb. 3, and already the state House and Senate judiciary committees have met to discuss the legalization of recreational use of marijuana and the experience of Washington and Colorado to date.

City Attorney Mike Kohlhoff has been following the legal debate surrounding medical marijuana. He told the council he has concerns over allowing dispensaries to operate in Wilsonville, mainly because of the clash between city code and federal law that would occur.

City code already prohibits businesses that violate state or federal law. On top of that, he added, city staff could risk criminal charges for helping dispensary owners break federal law.

“The issue here is whether or not we’re between a rock and hard place,” Kohlhoff said.

The city of Medford has taken a similar approach by enacting a business license regulation requiring compliance with federal law. Meanwhile, the city of Hillsboro currently is contemplating a temporary ban on marijuana dispensaries until it can craft adequate zoning regulations for them. State law already restricts where dispensaries can operate, including near schools.

Kohlhoff noted that some have urged the city to take this approach, which he said would take longer to craft than an outright ban.

In either case, he added, the city still runs the risk of being sued by potential business owners backed by state law. Not only has medical marijuana been legal in Oregon since 1998, the Legislature passed a pair of marijuana bills in 2013 — Senate Bill 863 and House Bill 3460, which formally allows medical marijuana retail businesses.

Also of note in the debate is a subsequent November 2013 legal opinion written by state legislative legal counsel Dexter Johnson that states Oregon state law now by and large pre-empts municipal government from banning medical marijuana businesses.

“We conclude that SB 863 may present some barriers to municipal attempts to specifically target medical marijuana facilities,” the opinion states. “We conclude that HB 3460 pre-empts most municipal laws specifically targeting medical marijuana facilities. Finally, 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.”

As for Wilsonville, Kohlhoff said the city still could draft regulations that are “consistent with not violating federal law.”

“But whether or not we get challenged on that, it’s another matter,” he said.

At a Glance

What: Wilsonville City Council regular meeting

When: 7 p.m. Thursday

Where: Wilsonville City Hall, 29799 SW Town Center Loop East

Who: Public is welcome.