Stephen Hamway
The Bulletin

A proposal to establish the first recreational marijuana store in Tumalo faced plenty of scrutiny from members of the public, including a neighboring property owner arguing that the store would force him to violate federal law.

The Deschutes County Commission held a public hearing Wednesday on an application, which was appealed in February by a nearby property owner, to construct a 1,500-square-foot recreational cannabis store on the west side of U.S. Highway 20 in Tumalo.

If approved, the storefront would represent the first of its kind in Tumalo, and the first store in Deschutes County outside of Bend that will deliver to residents.

Applicant Mike Hayes said before the hearing that he thinks the store can serve residents living in rural parts of the county, who he said are underserved because of the lack of stores in Deschutes County outside of Bend’s urban growth boundary.

However, Joe Willis, an attorney representing Joel ­Gisler, the property owner who appealed the decision, argued that federal law, specifically the Controlled Substances Act, pre-empts Oregon law in regards to cannabis. Because the lot in question is accessible via an easement that stretches across Gisler’s nearby property, Willis said Gisler could be liable for providing access for a operation that remains illegal at the federal level.

“Anybody that’s violating the (Controlled Substances Act), they’re at the grace of the Justice Department,” Willis said after the hearing.

Hayes, the owner of the Bend-based recreational dispensary Miracle Greens, submitted an application for a new marijuana storefront, along with an adjacent farmer’s market and food cart, last July. Hayes ultimately simplified the application to remove the food options, with a storefront and storage center totaling just over 1,500 square feet.

The county held an initial public hearing on the application in November, and a hearings officer formally approved the application in January. However, Gisler and other residents appealed the decision Feb. 7, arguing that the property had no legal access point without using an easement across Gisler’s nearby property, among other issues.

As evidence Wednesday that Oregon’s marijuana laws don’t supersede federal law stating the drug is illegal, Willis pointed to Emerald Steel Fabricators, Inc., v. Bureau of Labor and Industries, a 2010 case in which the Oregon Supreme Court ruled that a statute prohibiting discrimination on the basis of disability does not extend to medical marijuana users. Taken in conjunction with older federal cases, Willis argued that Oregon state law cannot force Gisler to allow access to a federally illegal business.

“They have to get over the hump that this is illegal on its face,” he said.

Stephanie Marshall, Hayes’ attorney, said the argument is nothing new, and came up frequently when Deschutes County was finalizing its recreational marijuana regulations. However, she said, the federal government has largely opted not to interfere in cannabis operations that are legal at the state level. She said there was no reason to think the federal government would choose to arbitrarily prosecute a licensed growing operation in Deschutes County.

“The ripple effect would be completely unwieldy,” Marshall said.

Also in question is the application’s alleged proximity to a Spanish-language school, a school that Marshall and Hayes contend may not exist at all. During the hearing, Marshall said the school, which Gisler’s appeal argued is too close to the proposed marijuana shop and violates county code, doesn’t meet the standards for a school and finding information about it is difficult.

“There’s nothing online, you can’t register for classes, there’s no presence, there’s no children,” Marshall said. “There’s nothing except for speculation.”

Comments from members of the public were mixed, with some Tumalo residents objecting to potential increases in traffic and crime that the store might bring. However, other speakers, including staff and board members from Miracle Greens, pointed to positive aspects of the application, including how the presence of a recreational store outside Tumalo could cut into Deschutes County’s medical marijuana market, which has been criticized for being under-regulated.

Because of the complexity of some of the arguments laid out during the hearing, the County Commission opted for a longer decision timeline than it typically uses for hearings on cannabis-related topics. Matt Martin, associate planner for Deschutes County, said written comments will be allowed for two weeks after the hearing. The county is expected to make its final decision on the application by June 20, Martin said.

— Reporter: 541-617-7818,