Oregon cities and counties with marijuana moratoriums

142 Oregon cities and 26 counties pass cannabis bans

New medical pot rules create a legal patchwork

By Hillary Borrud / The Bulletin

Cities and counties across Oregon spent the past two months rushing to adopt temporary bans on medical marijuana dispensaries, after a new state law created a brief window for officials to pass the moratoriums.

By the May 1 deadline, the map of cities and counties with moratoriums on the retail outlets looked like a patchwork quilt spread across the state: 142 of 242 cities and 26 of 36 counties had reported bans to the Oregon Health Authority by Friday, and the agency expects to continue receiving notices of more bans.

The moratoriums are supposed to provide time for communities to come up with their own regulations for the location, business hours and type of marijuana products sold, so even after the prohibitions expire, the state probably will wind up with a hodgepodge of local laws.

Mike McCauley, executive director of the League of Oregon Cities, said Friday that municipalities across the state will be watching how the newly licensed dispensaries operate in cities and counties without moratoriums, such as Bend.

“Some cities will probably be discussing coming up with draft proposals on time, place and manner restrictions,” McCauley said, referring to the hours of operation, location and type of marijuana products. “And then there will probably be a few cities continuing to explore how they might position themselves with respect to trying to continue to ban them, if they want to ban them, or deal with them through licensing.”

The degree of local control remains a point of contention between some municipal lawyers who believe cities and counties have the legal authority to prohibit medical cannabis retail outlets, and other officials including a lawyer for the Legislature, who wrote in a legal opinion last year that state law pre-empts local regulations on the pot facilities. Democratic and Republican lawmakers also differed on the subject, with some Republicans favoring more local control.

Oregon is in the midst of the largest overhaul of its medical marijuana laws since voters approved the substance for medical use in 1998. This includes House Bill 3460, which state lawmakers approved in the 2013 legislative session, to legalize and regulate storefronts where Oregon Medical Marijuana Program cardholders can purchase pot and edible cannabis products. The law requires dispensary operators to register with the state, purchase a license and make sure their products are free of pesticides, mildew and mold. The Oregon Health Authority is finalizing rules to put House Bill 3460 into practice, and public hearings are scheduled around the state later this month, Karynn Fish, an agency spokeswoman, said Friday.

There is also Senate Bill 1531, passed by the Legislature in March. This law created the window for local governments to pass laws to ban the dispensaries until May 2015 and required child-resistant packaging for all pot-infused products sold at dispensaries. Fish said the state plans to form a committee soon to begin working out the details to implement the law. McCauley said the League of Oregon Cities plans to push for more statewide regulations, such as criminal background checks on all dispensary employees, not just the operator as currently required.

Officials adopted moratoriums on pot dispensaries in La Pine, Redmond, Prineville and other cities throughout Central Oregon, as well as the unincorporated areas of Crook and Deschutes counties. Bend officials decided to leave regulatory decisions to the state, and the city is currently home to the largest cluster of legal cannabis stores outside of Portland. City Manager Eric King said officials do not have plans to discuss local medical marijuana regulations.

“I think there have been a few comments from (city councilors) at one of their meetings about concern over some of the products and attractiveness to kids,” King said on Friday. “But it’s just that. It hasn’t gone so far as to say, ‘We’d like to regulate that.’”

Bend is not alone in its decision to leave medical marijuana regulation to the state. At a League of Oregon Cities medical marijuana workshop in Portland on Thursday, Eugene City Attorney Glenn Klein said the City Council is not interested in passing an ordinance on medical pot and “Eugene has done nothing — and I mean literally nothing — related to this.” Klein said he believes state law does not pre-empt local governments’ power to ban dispensaries, but the biggest risk would be the cost of defending city regulations if a dispensary operator decided to file a lawsuit.

The situation is quite different over the mountains.

Take La Pine, where the City Council adopted a moratorium.

La Pine City Manager Rick Allen said two people were interested in opening medical marijuana dispensaries in the city, but city councilors were adamant they wanted to adopt a moratorium and then eventually adopt local restrictions on the businesses. City councilors were concerned it would be easier for children to purchase marijuana once adults could buy it at a dispensary, and “the other thing (city councilors) felt was this medical marijuana card is basically a sham,” Allen said.

Jeremy Green, a lawyer who represents the cities of La Pine, Madras, Prairie City, John Day, Burns and Monument, said several of the cities chose to adopt moratoriums. Some cities had already used other means to prohibit marijuana storefronts: Madras’ business license program requires companies to comply with federal law, which outlaws marijuana, while John Day’s land use code “doesn’t allow activity that would violate federal law,” Green said. Other cities across the state, including Gresham, have used their business license programs to prohibit pot dispensaries. Bend’s business license application does not ask whether the company will comply with state and federal law.

Green said officials in many small towns are interested in adopting regulations on medical pot stores, but they are waiting for larger municipalities to jump in first. He expects that pot dispensaries will file legal challenges to local regulations.

“I think a lot of cities are kind of hoping the bigger cities utilize their resources to develop those,” Green said. “And then the smaller cities will look at what’s being developed.”

Lily Raff McCaulou contributed to this report.

— Reporter: 541-617-7829, hborrud@bendbulletin.com