Marijuana Update OACP/OSSA Joint Fall Leadership Conference DPSST Wednesday, September 30, 2015 Rob Bovett Legal Counsel Association of Oregon Counties
Outline A. Status of local control of marijuana businesses B. Legislative tune-ups needed in 2016 C. Status of litigation in OR, WA, and CO
A. Local Control of Marijuana Businesses 2015 Oregon House Bill 3400 clarified: Local time/place/manner regulatory authority Sections 33, 34, and 89 Two opt out paths Section 133 Counties, and cities in counties, that voted No on Measure 91 by 55 percent or more Section 134 Any county or city Election in November of 2016
Measure 91 Election Results and HB 3400 Opt Out Options Clatsop Columbia HB 3400 134 counties (local election required): Yes and No (less than 55%) HB 3400 133/134 counties: No (55% and above) Tillamook Washington Yamhill Multnomah Clackamas Hood River Sherman Gilliam Morrow Umatilla Union Wallowa Wasco Polk Marion Wheeler Baker Lincoln Benton Linn Jefferson Grant Crook Lane Deschutes Coos Douglas Malheur Harney Lake Klamath Curry Josephine Jackson
Local Control of Marijuana Businesses in Oregon Counties Opt out of all Opt out of all, but referred for election (November 2016) Likely to enact local time/place/manner ordinances Clatsop Columbia Likely to take no action (default to State) Decision making in process Tillamook Washington Yamhill Multnomah Clackamas Hood River Sherman Gilliam Morrow Umatilla Union Wallowa Wasco Polk Marion Wheeler Baker Lincoln Benton Linn Jefferson Grant Crook Lane Deschutes Coos Douglas Malheur Harney Lake Klamath Curry Josephine Jackson
Early Start of Retail Sales 2015 Oregon Senate Bill 460 Starts tomorrow! (October 1, 2015) Limited items: Seeds Dried leaves and flowers Plants that are not flowering Quantities limited Local opt out
Special Notes: Early Start of Retail Sales One county that allows medical marijuana dispensaries has opted out of early start retail sales (Linn) One county, with two existing grandfathered medical marijuana dispensaries, has placed opt out and local taxation on the ballot (November 2016), but has also allowed early start retail sales through those two dispensaries in the meantime (Marion)
B. Legislative Tune-Ups Needed in 2016 1. Alter the state tax distribution formula to better reflect disbursements based on impacts 2. Narrow the scope of the taxation forfeiture provisions, by allowing some state and local tax receipts if not all categories of marijuana business are prohibited locally 3. Clarify a clean opt in of any category of marijuana business without an election, if an opt out election hasn t been held
B. Legislative Tune-Ups Needed in 2016 4. Continue to clarify marijuana offenses, and adjust marijuana offense levels, to ensure that no gaps exist, and that increasing/decreasing offense levels are proportionate 5. Amend ORS 305.620 to clarify that DOR can enter into IGAs with local governments to collect local marijuana taxes
C. Status of Litigation in OR, WA, and CO City of Cave Junction v State of Oregon (Cave Junction I) Providing All Patients Access v City of Cave Junction (Cave Junction II)
Issues in Cave Junction Cases 1. Does state law preempt local opt out of medical marijuana dispensaries (other than through HB 3400 paths)? 2. If so, does federal law, in turn, preempt? NOTE: AOC continues to be agnostic on marijuana. AOC defends local rights to have, or not have, marijuana businesses. In short, AOC supports local control.
Status of Cave Junction Cases 1. Cave Junction I LOC/AOC prevailed in trial court State law does not preempt (case # 14CV0588) On appeal to the Oregon Court of Appeals Briefing now complete (case # A158118) 2. Cave Junction II City/LOC/AOC prevailed in trial court Federal law preempts any state preemption (case # 14CV1246) On appeal to the Oregon Court of Appeals Briefing in process (case # A160044)
Litigation in Other States Washington Local opt out cases Lead case = City of Fife Colorado Nebraska and Oklahoma v Colorado RICO cases
Washington 1/16/14: Washington Attorney General Opinion - I-502 does not preempt local opt out (AGO 2014 No 2) Four trial courts have agreed Pierce County Superior Court MMH v City of Fife (8/29/14) (lead case) Green Collar v Pierce County (12/22/14) Chelan County Superior Court SMP Retail v City of Wenatchee (10/17/14) Benton County Superior Court Americanna Weed v City of Kennewick (11/21/14) Cowlitz County Superior Court Emerald Enterprises v Clark County (12/3/14) Status: City of Fife case at Washington Court of Appeals Briefing now complete (case # 46723-2)
Colorado Nebraska and Oklahoma v Colorado (case # 22O144) Petition asking SCOTUS to allow complaint to be filed, alleging that marijuana business licensing and regulation portions of Colorado Amendment 64 are in violation of the CSA and therefore preempted per the Supremacy Clause (12/18/14) 9 former DEA Administrators agree (2/19/15) Colorado, plus Washington and Oregon, disagree (3/27/15) Status: SCOTUS asked USDOJ to chime in (5/4/15)
Colorado RICO Cases Racketeer Influenced and Corrupt Organizations Act Civil: Treble damages and attorney fees
Questions?