Medford's effort to ban medical marijuana dispensaries has thrown another complication into an ongoing effort to write the rules for a new pot law that takes effect next year.
A 12-member, rule-making committee for House Bill 3460 already had been wrestling with whether a business license should be required for a dispensary.
"Not every area of the state requires a business license," said Rep. Peter Buckley, an Ashland Democrat who is on the committee and helped sponsor HB 3460.
The city of Medford put more teeth in a local ordinance that requires a business follow state, local and federal laws before it can be issued a license. Once HB 3460 takes effect in March 2014, the city plans to rely on federal law to revoke or deny business licenses for dispensaries.
In one version of the draft rules for HB 3460, "proof of a business license issued by the local governing agency" was among requirements for a state dispensary license. But the current recommendation, which isn't set in stone, is to strike out the line because some counties and cities don't require business licenses.
Buckley said this suggested change came up prior to being aware of Medford's decision to deny business licenses to dispensaries.
Buckley said he has received advice from the Legislature's legal team that state law will trump any local ordinances that attempt an outright ban. He said the Oregon Health Authority has the ultimate say in deciding where the dispensaries are located.
He said he will be receiving an official written opinion from the legislative counsel on the issue.
Buckley urged Medford officials to wait until the rules are written before acting.
"If the city decides to go to court once the rules are established and facilities are approved, they have every right to do so," he stated in an email response. "But again, it would be prudent, I think, to wait to see what they are actually trying to ban before they try to ban it."
Medford Councilor Chris Corcoran said he took an oath of office to uphold the law and to uphold the Constitution. Currently, he said, marijuana is a violation of federal law.
"If state law trumps city law, then federal law trumps state law," Corcoran said.
Though marijuana is an illegal drug under federal law, states with medical or recreational-use marijuana laws won't be prosecuted by the U.S. government as long as there's no money laundering, sales to minors or growing on public lands, the U.S. attorney general has said.
Corcoran said he doesn't have a problem with people who use marijuana for legitimate medical reasons, but he thinks many people have taken advantage of state laws.
"Do I think it's one of society's ills? I think it's a contributing factor," he said.
The rule-making committee will deal with another thorny legal issue. The dispensaries can't be located within 1,000 feet of each other or a school. If a school moves in after the dispensary is established, the dispensary is supposed to move.
Medford police raided Southern Oregon NORML on Sixth Street partly because it was discovered a school moved within 1,000 feet of the business. Language so far in the rule-making process isn't clear what the time frame would be for a dispensary to move or what the penalties would be if it didn't.
Tom Burns, director of Pharmacy Programs for the Oregon Health Authority, said the dispensaries will be set up and operated much like a pharmacy is run in the state.
He said the rule-making process at this point is still very preliminary.
"What you see are various attempts at getting at a solution," Burns said. "None of them are set in stone."
Differing from Buckley's point of view, Burns said his reading of HB 3460 doesn't indicate to him that state law trumps local law.
"We don't find anything in this bill that gives us the authority to say to Medford, 'You don't have a choice — you have to let a facility plop down in the middle of Main Street.'"
However, Burns said he wasn't privy to information Buckley received from the legislative counsel's office. He said he anticipated receiving a copy of the legal opinion possibly by Friday's meeting of the rule-making committee, set for 9 a.m. to 1 p.m. at the Capitol Building, Hearing Room F.
The committee session can be viewed at mailtribune.com/legislative-video.
Reach Mail Tribune reporter Damian Mann at 541-776-4476, firstname.lastname@example.org or follow him on Twitter at @reporterdm.