Legal implications for city discussed by attorney
by Steve Howe
The Burns City Council held a meeting Wednesday, Dec. 10 to discuss and receive public comment on time, place and manner restrictions for a medical marijuana dispensary.
Jeremy Green, legal counsel for the city, was on hand to present the draft ordinance, which would place additional regulations on the operation of dispensaries in the city of Burns, above and beyond state law. Green and the council fielded questions and comments from the public on the issue.
At the Oct. 22 meeting, the council approved an ordinance amending and restating Burns Municipal Code (BMC) Chapter 5.05 (concerning business licenses), stating:
“…the Burns City Council finds that it is necessary to amend and restate BMC Chapter 5.05 in its entirety in order to, among other things, accommodate businesses that may have otherwise been inadvertently prevented from operating in the City’s corporate limits.”
A business license for a medical marijuana dispensary was approved by the council Sept. 10 “with modifications or amendments,” with the intention of placing the time, place and manner restrictions on the business in a separate ordinance before issuing the license.
A draft of this ordinance was presented at the Nov. 12 meeting, where the council reviewed the document and received public comment. A second draft was distributed at the most recent meeting.
Green outlined the legal risks involved in the time, place and manner restrictions, saying that they had to be backed up by legitimate, safety-driven concerns in order to avoid a lawsuit. He also explained, in response to questions about the other options the city has, that if the council were to undo the amendment made to the business license ordinance in order to deny the issuance of the license to a dispensary, the city could face legal action.
“If you were to go back and require compliance with federal law, then you could deny the business license to that particular dispensary and any other dispensary that comes in,” said Green.
“That doesn’t end it, though, because you could be subject to legal challenge from that dispensary, not only based on the business license piece, but based upon a retroactive issue as well,” he added.
The majority of public comment was against the dispensary, and against the use of marijuana in general.
Grant Gunderson addressed Green and the council regarding section 5.05.120 of the business license ordinance, which states that “all licensees must comply with all federal, state, and local laws, regulations, and ordinances,” asking how it allowed for a medical marijuana dispensary to exist (as marijuana is illegal under federal law).
“This is no longer a regulatory-driven business license ordinance. It is now…an information-gathering type ordinance,” said Green.
He explained that the city would not be ensuring compliance with federal law, and that other cities have similar ordinances.
“We don’t have the resources – financial, staffing, and otherwise – to go about enforcing federal laws,” said Green.
Gunderson also asked if cities could be more restrictive than the state when it comes to medical marijuana dispensaries.
“I would argue that, yes, they can,” said Green.
Gunderson asked about the viability of various restrictions placed on the dispensary, including additional location restrictions. Green reiterated that he believed they were possible, as long as they were tied to a legitimate, safety-driven reason.
Gunderson asked if the approval of the business license for the dispensary implied approval of the location, which is currently planned at the former Bike Burns shop on Highway 20.
“The mere fact that we’ve already issued a business license to a medical marijuana facility, does not mean that they’re not ultimately going to be subject to our time, place and manner restrictions,” explained Green.
“Even if that means they can’t be there?” asked Gunderson.
“They’re going to argue that they get grandfathered in, we all know that…but an argument could be made that that isn’t the case,” said Green.
“Is it unreasonable to make them change the name of the dispensary – right now, they have ‘Enjoy’ on there, that to me is hypocrisy – medical marijuana?” asked Gunderson.
“Honestly, that is the first time I’ve received a question regarding controlling the name of a business…I will look at it,” said Green.
Following further discussion about concerns regarding the amendment made to the business license ordinance (which relieved the city of responsibility for regulating businesses’ compliance with federal law), Councilor Jerry Woodfin suggested that it should be reversed.
“What I’m hearing is, with these time, place and manner restrictions, if we put something in there, somebody’s going to challenge it. And then somebody else is going to find something in there, and they’re going to challenge it,” said Woodfin.
“I think if we’re going to sit around and worry about getting challenged, we should just draw the line and say, ‘Let’s go back and say you have to follow state and federal law,’ and then there’s just one thing to challenge.”
The comment was met with approval from the crowd.
In response, Mayor Craig LaFollette asked the council whether they remembered the executive session in which they had this discussion with Green’s counsel.
“I don’t want the public to think that we didn’t already have this discussion. We had this discussion in detail. And I’ll leave it at that,” he said.
Charity Robey said her biggest issue with the dispensary was the disposal of the marijuana. She said that if it were placed in dumpsters outside the building, it would pose a threat to children and pets.
Green pointed out a provision in the draft time, place and manner ordinance, which states that the dispensary “must provide for secure disposal of marijuana remnants or byproducts; such remains or byproducts shall not be placed within the dispensary’s exterior refuse containers.”
Sgt. Brian Needham, speaking on behalf of himself and the Harney County Sheriff’s Office, said allowing the dispensary would result in increased “black market” marijuana, a higher crime rate, and increased law enforcement costs.
Bev LaFollette told the councilors that she felt it was in their best interest to “go back” and undo the amendment to the business license ordinance.
“I think we need to back up, and we need to slow down and look at this,” she said.
“I think the majority of the people here would like to see ‘federal’ put back in,” she added, referring to the ordinance.
LaFollette said that if the council did decide to keep going forward, she would like to see additional restrictions on the dispensary, including that it be 1,000 feet from childcare facilities and preschools, and that background checks be required for everyone working at the facility.
Andrea Letham asked the council “what the hold up” was with going back and undoing the business license ordinance amendment.
“What are we really scared of, a lawsuit? I’d be more scared about what’s going to happen to our children,” she said.
Kirby Letham added to her comments.
“The biggest risk is going against what the majority of the local people think and feel,” he said.
Kim Rollins addressed the council, and said he was not pro-marijuana, but was pro-marijuana reform.
He asked Green to clarify whether medical marijuana and recreational marijuana (after July 1, 2015) would still be legal in Harney County, even if dispensaries were denied business licenses. Green responded, “Yes.”
Rollins said that the legal marijuana industry was projected to be a $10 billion business by 2018.
He asked, “What are we achieving by restricting a legal business? Why should we put restrictions on our economy in Harney County?”
Members of the crowd responded, with some commenting that it was “dirty money,” and that “we don’t want it.”
Stacey Johnson also responded to Rollins.
“We don’t care about that part of the economy; we don’t want that,” he said.
Doug Gunderson told the council that he coaches wrestling and football, and has seen the effects of marijuana users on kids’ lives.
“Some of them are medical [marijuana users]. I know of one cardholder that brought his kid to football practice, and was also drinking, because he was so high that he didn’t think drinking was a problem…that’s the kind of trash that marijuana users are,” he said.
Rob Paramore commented that he lives in Harney County because of the quality of life.
“I don’t think the general population wants anything to do with this [dispensary],” he said.
“Why don’t we just eliminate it all from Harney County, and see what happens?” asked Paramore.
Dr. Tom Fitzpatrick thanked the council for facilitating the public hearing.
“I just ask each one of you to think about what everyone said. We had an eloquent discussion tonight about how we feel, and I just hope you listen,” he said.
Following public comment, Green asked the council to provide a general consensus on how they would like to proceed. He said that he could help the council move forward with the reconsideration issue or with the time, place and manner restrictions, or go back and analyze all of the options.
Jerry Woodfin responded:
“I’ve made my decision…I think it’s fair to at least have a vote on whether we do go back.”
Councilor Terri Presley said that the council needed to look again at the risk analyses before making the decision to undo the amendment to the business license ordinance.
“We need to look at all our options,” she said.
The rest of the council agreed, and Green said he would look into the pros and cons of undoing the amendment of the business license ordinance, and would put the time, place and manner restrictions on hold until a resolution was passed.
The next regular meeting of the Burns City Council will be held Wednesday, Dec. 17 at 6 p.m. at city hall.