By Matt Goldberg
In an eight-page legal memo, the League of Oregon Cities and the Association of Oregon Counties previewed the litigation strategy they will use to seek greater control for local jurisdictions under Oregon’s recreational marijuana law if the Legislature does not write such additional controls into the law this session.
As passed, and as commonly understood, Oregon’s Measure 91 only allows marijuana to be taxed at the state level and only allows counties and cities to ban marijuana businesses outright through a local option submitted to the will of the voters. However, the lawyers for Oregon’s cities and counties argue that the actual text of the initiative, especially when viewed in light of cases addressing similar issues under state liquor laws, permits local governments to tax, regulate — and even ban — recreational marijuana businesses.
The cities and counties argue that Measure 91’s text is not evidence of a specific enough intent to preclude local governments from regulating marijuana beyond the requirements of the measure. Because Measure 91 does not state, for example, that a local election is the “only” way for a city or county to opt out of recreational marijuana, the cities and counties argue that they retain local authority to ban businesses.
This argument is somewhat disingenuous, though. The cities and counties
referenced a footnote statement in the voters’ pamphlet that a local election was, in fact, the “only” way for a city or county to opt out. If successful, the argument is also dangerous because it could open the door to a possible multiplicity of rules and regulations on the local level, treating the forthcoming rules from the Oregon Liquor Control Commission not as a regulatory standard across local jurisdictions but as a regulatory floor on which local jurisdictions can establish their own unique rules and requirements.
In light of this shot across the bow by Oregon’s cities and counties, it is likely that the Legislature will take some action by way of amending the statute to allow for some greater degree of local control. While doing so would seem to go against the will of the voters, the Legislature faces a Catch 22: either cave to the pressure now and amend the law to give local governments more control, or move forward with the law as written, knowing that the cities and counties will tie the new law up in litigation for much of its early life.
Matt Goldberg advises cannabis businesses throughout the Pacific Northwest at Cannabis Lawyers NW, LLC (www.cannabislawyersnw.com). He can be found on Twitter at @Cannabis_Lawyer.