1. OCAA Spring 2013 Options for Municipal Regulation of Medical Marijuana Christy Monson, The Local Government Law Group in Eugene christy@speerhoyt.com 541.485.5151

2. Should Cities Just Say No?

3. OMMA Prohibitions: Harshing the Mellow  NO selling or purchasing MJ to/from anyone.  NO sharing with non-cardholders.  NO using pot in public or in public view.  NO driving while under the influence.  NO growing or producing other than registered growsite. (Can grow yourself or have someone grow for you.)  Six mature plants per cardholder. Maximum 24 plants per grower. (ORS 475.300 et seq.)

4. What MMJ Looks Like in our Cities: A Mixed Bag  Home growing and home use  Dispensaries, Gardens, “Cannabis Clubs”, Retail Establishments, Collectives.  Enforcement Choices and Limited Resources  Dazed and confused?

5. “Chronic” Neighborhood Problems Nuisance Issues: Odor, smoke, grow lights, generator noise. Location and Zoning: Schools, residential areas In Plain Sight: Attractive nuisance? Crime? Accessibility of grow site: self-security and police/public safety. Storm water quality: fertilizers, chemicals. Building Issues: fire and building inspections. Mold. Fire Inspections: increased need?

6. Regulation Options: A Municipal Potpourri Consider Declaring a Per Se Nuisance Dispensaries as per se nuisances? Medical marijuana grows as per se nuisances? Findings needed? Standards? Discrimination liability? Watch WA State: Tacoma and Everett

7. Regulation Options: A Municipal Potpourri Consider Using City’s Existing Nuisance Abatement Process Nuisance ordinance legal review likely needed Administrative or search warrants required unless exception exists. Findings needed? Standards of measurement? Basis for treating homes differently than dispensaries?

8. Regulation Options: A Municipal Potpourri Consider Zoning Solutions Proximity to schools, parks? Density concerns Traffic

9. Regulation Options: A Municipal Potpourri Consider Smoking Laws City ordinance? State statute? ORS 433.835 et seq

10. Regulation Options: A Municipal Potpourri Consider Inspections, Permitting, and Licensing Fire and building inspections? Other inspections? Caution Required! See next slide.

11. Licensing/Permitting can be a sticky situation Invalid authority to license a crime?  Marchetti, 390 US 39 (1968). License creating a vested right to a business?  Santa Barbara Patients Collective Health Co-op v. City of Santa Barbara, 2012 WL 2129370, 9 th Cir., June 13, 2012) Fifth amendment protections against self incrimination?  Baltimore City Dept. of Soc. Serv. v. Bouknight, 493 US 549 (1990); Montes v. US, 2012 WL 2798810 (E.D. Cal. Jul 09, 2012).

12. Regulation Options: A Municipal Potpourri Consider Doing Nothing Problems with Permitting. Possible legalization in near future. Preemption likely in many cases Express Implied Occupy the Field Conflict : Actual or Obstacle Preemption

13. Criminal Options: An Ounce of Prevention or a Token Gesture?  Analyze the real problems vs. perceived or political.  Limitations on MMJ user immunity from criminal laws: ORS 475.316  DUII  Sharing  Purchase  Grow location or too many plants  Affirmative defenses provided to MMJ users: ORS 475.319  No card needed

14. DARK GREEN: legal medical cannabis/decriminalized LIGHT GREEN: legal medical cannabis ARMY GREEN: decriminalized PURPLE: legalized recreational cannabis Consider taxing in the event of legalization.

15. Rolling in the Green COLORADO: proposing up to 25% state sales tax for recreational use. Collected $5 million in MMJ sales tax last year. OAKLAND: $1.4 million in taxes from dispensaries in 2011. COLORADO SPRINGS: $700,000+ in taxes from the medical marijuana industry in 2011. SAN JOSE: $2.5 million in 2011 “marijuana business tax”. SACRAMENTO: 12.75 % combined state and city tax on medical marijuana. --from Huffington Post, 4.29.2013, Denver Post, 4.29.2013, Sacramento Bee, 4.26.13, and NY Times Article, Feb 11, 2012.

16. Blunt Advice Municipal Research Services of WA Memo on Local Regulation of MMJ: http://www.mrsc.org/artdocmisc/m58medmar.pdf WA State Dept of Revenue Discusses Sales Tax and MMJ: http://dor.wa.gov/content/getaformorpublication/publicationbysubject/taxtopics/MedicalCannabis.aspx Tacoma City Atty Research on Wa State MMJ: http://www.mrsc.org/wsamaproc/2012f/2012f-03.pdfMunicipal Research Services from WA State on MMJ: http://www.mrsc.org/subjects/legal/medmarireg.aspx City Of LA FAQ on taxing dispensaries: http://finance.lacity.org/content/MedicalMarijuanaFAQ.htm Regulating City of Boulder FAQ on MMJ licensing: http://www.bouldercolorado.gov/index.php?option=com_content&id=14186&Itemid=4806 Dispensaries: http://americansforsafeaccess.org/downloads/dispensaries.pdfKey Cases: http://americansforsafeaccess.org/section.php?id=34

17. "Two of my favorite things are sitting on my front porch smoking a pipe of sweet hemp, and playing my Hohner harmonica." - Abraham Lincoln (from a letter written by Lincoln during his presidency to the head of the Hohner Harmonica Company in Germany).