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The Wilsonville City Council finalized its stance against medical marijuana dispensaries and businesses last week, voting unanimously to prohibit anyone from engaging in any business that is illegal under federal law.

This effectively rules out medical marijuana-related businesses from operating within city limits. Despite being legal in Oregon since 1998, medical marijuana remains illegal under federal statute except for a few limited cases. Federal law continues to list marijuana as a Schedule One substance under the Nixon-era Controlled Substances Act, meaning it has no recognized medical use under that law.

The council’s second reading of the ordinance took place at a Feb. 3 meeting, and included an emergency clause allowing the amendment to take effect immediately.

“We had quite of bit of discussion at the first meeting, and I think people’s positions were fairly well enunciated at that time,” Mayor Tim Knapp said. “I’ve been watching the evolution of this issue in the press and other cities around the state, and I do believe this is the most appropriate method for Wilsonville to proceed on. That’s not to mean that things won’t change in the future, because I think they will. But we need to position ourselves optimally as the facts currently exist, in my view.”

The council was in a bit of a hurry to act on this issue because of Oregon House Bill 3460, adopted last year by the state Legislature. The bill for the first time provides for a state-regulated licensing system for medical marijuana dispensaries, which formerly were operating on an ad hoc basis. It takes effect March 1, which has led to a flurry of municipal action in the last month for fear of being left behind and pre-empted by state law.

This was the case with Wilsonville, said City Attorney Mike Kohlhoff, who explained that the city chose to deal with the issue through business licensing procedures rather than through the city’s zoning code or other means due to constraints and practicality.

“The thought process behind this is that the city clarify things and we’re narrowing it to reality and not simply that there’s a failure to comply (with federal or other laws),” Kohlhoff said during the first public hearing held last month. “Oftentimes there can be a failure to comply (with code) that can be rectified ... so we took a further look at that and narrowed it.”

Other cities, including Gresham, have adopted a similar approach. Others have chosen to enact strict zoning regulations that effectively prevent medical marijuana businesses from locating in their cities. Either way, Kohlhoff said, cities still may be risking future litigation from would-be business owners who feel they are entitled to open a medical marijuana-related endeavor under protection of state law.

“Some jurisdictions have come at this with zoning regulations, but I think that is fraught with more opportunity for litigation to occur,” he told councilors Jan. 23. “I think if you’re going to control this in a way until it all sorts out — perhaps there’ll be an initiative in November — is through the business license. It doesn’t guarantee there won’t be litigation but we know a number of jurisdictions have adopted this approach.”

Kitzhaber favors

legislative approach

Meanwhile, the state Legislature opened its 2014 session Feb. 3 with an eye on the possible legalization of recreational marijuana use and sales in a similar vein to neighboring Washington. Oregon Gov. John Kitzhaber already is on record as saying the Legislature is the right place to act on marijuana legalization.

“I hear the drumbeats from Washington and Colorado,” Kitzhaber said last month in Salem at a meeting with Oregon newspaper editors. “I want to make sure we have a thoughtful regulatory system. The Legislature would be the right place to craft that.”

Finally, a pair of ballot initiative proposals already have been filed with the Oregon Secretary of State’s office for possible inclusion on the November general election ballot.

Similar legalization efforts were rebuffed in Oregon in 2013, including House Bill 3371, which would have legalized possession and sales of marijuana for adults 21 and older. But the impact this year of the roll-out of marijuana sales in Colorado and Washington seems to be spurring other states to move in a similar direction.

Twenty states and the District of Columbia so far have legalized the medical use of marijuana, while nine others — Florida, Kentucky, Minnesota, Missouri, New York, Ohio, Pennsylvania, Tennessee and West Virgina — have legislation currently pending that would legalize medical marijuana.

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