City attorney fields questions from council
by Steve Howe
During its regularly-scheduled meeting on Aug. 26, the Burns City Council reviewed and discussed two draft ordinances that would prohibit marijuana establishments in the city, and ban early sales of recreational marijuana by medical marijuana dispensaries.
Jeremy Green, the city’s attorney, telephoned in to the meeting to present the ordinances and answer questions from the council. Green said he had prepared the two ordinances in order to “put the wheels in motion” and facilitate discussion. He said there was no need to adopt them that night, but that he would be looking for feedback in order to move forward for the next couple of meetings.
Green presented the first draft ordinance, which would prohibit six types of marijuana establishments within the limits of the city, and declare an emergency (removing the standard period of 30 days between the passage of the ordinance and its effective date).
The prerequisite to the proposed ordinance is Oregon House Bill 3400 (HB 3400), which was signed into law by Gov. Kate Brown on June 30. HB 3400 contains a “local option” that allows county and city governments, in counties where no less than 55 percent of voters opposed Measure 91, the right to adopt ordinances prohibiting any one (or more) of the six categories of state-licensed or registered marijuana businesses. These include medical marijuana processors, medical marijuana dispensaries, retail marijuana producers, retail marijuana processors, retail marijuana wholesalers, and retail marijuana retailers. The opt-out ordinance must be adopted no later than 180 days after the effective date of the act (Dec. 27, 2015).
Green said the emergency declaration was included because it is “theoretically possible” that a dispensary could initiate the application process prior to the ordinance going into effect.
He noted that the ordinance would prohibit all that HB 3400 allows to be prohibited, and reminded the council that it would not address marijuana growers (growing for personal or medical cardholder use), or the personal use of marijuana.
Before moving on to present the second ordinance, Green asked for comments or questions from the council.
Councilor Terri Presley brought up the time, place, and manner restrictions (TPMs) the council had placed on medical marijuana dispensaries last year.
“Could those same types of restrictions be placed on retail sales?” Presley asked.
Green responded, yes, the city has the ability to adopt TPMs on sales of recreational marijuana.
“I think that’s something to look at,” she said, adding that she didn’t want to see recreational marijuana sales “widespread,” or combined with a medical marijuana dispensary, and that it could be limited to one shop.
“If we opt out, what does it take to opt in?” asked Councilor Dan Hoke.
“A repeal of the ordinance, from my perspective,” Green responded.
Hoke commented that from what he has read on the subject, regulations for retail marijuana sales are still being determined by the Oregon Liquor Control Commission (OLCC).
“We don’t even have what OLCC is going to determine as reasonable restrictions on recreational marijuana yet,” he said, but added that the deadlines for opting out are clear.
“I guess what I’m saying to the council is, if we opt out, and we find that OLCC puts reasonable restrictions in place, we can opt back in.”
Hoke said one of the concerns is not receiving tax revenue, but said he didn’t think it would be a significant amount.
“So, we could opt out now, look at putting some TPMs in place, wait until OLCC puts restrictions in place, and then revisit the issue,” said Presley.
“I think the idea would be that the opt-out would serve as a de facto moratorium, to provide the city an opportunity to adopt TPMs as they relate to recreational marijuana, and then to repeal the opt-out ordinance,” Green said.
“There are other cities that are approaching it exactly that way,” he added.
Councilor Dennis Davis weighed in:
“I’m afraid that if we adopt the ordinance, hoping that we’ll be able to retract it later, we may not be able to get the toothpaste back in the tube,” he said, explaining that he thought the council might be “a bit more restricted” in reversing the decision later on.
Hoke commented that there are a lot of variables with regard to the OLCC regulations, but there are less variables involved in opting out.
“Who knows what the OLCC is going to implement as far as regulation?” he said. “That’s why I’m of the opinion of opting out. We should let things filter through, and if the council should choose to revisit it, it could.”
Green added a caveat:
“I cannot tell you with any level of certainty,” he said, “as to whether or not if you opt out, and then opt back in, if it will compromise your ability to collect your percentage share of the taxes that the state will otherwise collect with respect to recreational [marijuana] sales.”
He said in his opinion, the city should be entitled to its share if it opts back in, but he can’t guarantee it. He noted that he knows of two or three cities considering an opt-out ordinance as a de facto moratorium.
“They’re weighing whether or not to do it that way, for fear that they may miss out on the tax revenue,” he said. “But I will also tell you that my suspicion is that the tax revenue that the city of Burns may receive from [recreational] sales may not be all that significant.”
Green also reminded councilors that they didn’t necessarily need to make a decision themselves.
“You can refer an ordinance of this nature to your electors if you decide to do so,” he said. Davis commented on Green’s statement:
“The worry I have with handing it out to the electorate, is that it would not be a decision of pragmatism, or empirical evidence, but strictly speaking, a legislation of hatred. They don’t want marijuana, they hate marijuana, and they will legislate it out of existence, simply out of hatred. I think that is a very slippery slope, in both process and precedence, if we as stewards of the city, allow, or even become involved in, those types of activities in which we can propagate the evolution of hatred legislation,” he said.
Councilor Charity Robey responded:
“But as stewards of the city, isn’t it our obligation to hear the people’s opinions? We already know the outcome of [the vote on Measure 91] in this county. I don’t think it’s a hatred – I think if they don’t want it here, they don’t want it here,” she said.
Green presented the second draft ordinance, which would ban early sales of recreational marijuana by medical marijuana dispensaries. Oregon Senate Bill 460 (SB 460), which was signed into law on July 28, authorizes early sales of “limited marijuana retail product” to anyone 21 years of age or older by medical marijuana dispensaries from Oct. 1, 2015 through Dec. 31, 2016. This includes marijuana seeds, dried marijuana leaves and flowers, and marijuana plants that are not flowering.
Pursuant to Section 2 of SB 460, a city may adopt an ordinance prohibiting these early sales of limited marijuana retail product by medical marijuana dispensaries, with no requirement for referral to a general election (in counties where no less than 55 percent of voters opposed Measure 91.) The prohibiting ordinance must be adopted prior to Oct. 1.
Mayor Craig LaFollette said that meant it would need to be voted on at one of next two meetings in September.
“I’d like a little more time on the first one, but I do think we need to ban the early sales [by medical marijuana dispensaries,]” Presley said.
“We can certainly put both of these ordinances on the agenda for the next meeting, and have discussion,” LaFollette said.
Green said he would finalize the ordinances for the next meeting’s agenda, but said that the council would still be able to make changes to them at that point. There also would be the option to hold off on a vote and table them.
During public comment, Hines Common Council member Hilda Allison spoke about a deer problem in both cities.
“It has gotten to the point in the city of Hines where these deer are very ill – they’re sick and dying – it’s just a terrible situation.”
Allison said she found out the deer are the responsibility of the Oregon Department of Fish and Wildlife (ODFW), and in order to get the animals under control, the only solution is to euthanize them.
She said she has been told that the cities need to join forces and put together a petition to the “upper levels” of the ODFW in order to get something done.
“I know it’s very controversial…some people love the deer, some don’t. But in this instance they’ve become a safety hazard, and they’re just very sick,” Allison said.
In other business, the council:
• heard from City Manager Dauna Wensenk that the street lights on Monroe Street that were hit are on order and would be put in as soon as they arrive;
• approved Resolution No. 15-614, imposing a lien for nuisance and dangerous building abatement at 730 S. Egan Ave.;
• supported the renewals of liquor licenses as recommended by Burns Police Department Chief Newt Skunkcap.
The next meeting of the Burns City Council is scheduled for Wednesday, Sept. 9, at 6 p.m. at Burns City Hall.