Oregon in Transition

This wikilog article is a draft, it was not published yet.

by: Lberger • August 5, 2014 • no comments

“I’d like to be able to tell you the latest news on this issue, but I haven’t looked at my iPad in 20 minutes.”
– Congressman Earl Blumenauer (D., 3rd District Oregon) speaking at the Oregon Cannabis Industry Association’s Continuing Legal Education Program, Portland

These are exciting transitional times in Oregon as we move from unregulated medical distribution through regulated medical distribution to legalization and regulated responsible adult use. Here are the details.

Since the passage of the Oregon Medical Marijuana Act in 1998, Oregon activists have been searching for a lawful, rational means of distributing cannabis to those who need it therapeutically. Initially, the law allowed possession outside of the garden of one ounce, and (then and now) prohibited use (including transfer) in public. Transfers to non-cardholders specifically and to anyone, cardholder or not, were allowed “for consideration.” Advocates concluded that distribution of less than an ounce, for free, between cardholders was protected by the OMMA and would host gatherings where there would be enough patients to make the transfers protected.

In 2005, this patient-to-patient transfer for free was codified as “not delivery,” and growers were permitted to receive reimbursement from their patient “for the costs of supplies and utilities only and no other costs, including labor.” Advocates broadly read this as creating a right for a patient (or their caregiver) to reimburse growers; farmers markets and dispensaries arose to facilitate these transfers.

These facilities were either left alone (Multnomah, Deschutes and Marion counties, for example) or raided and shut down (Washington, Jackson and Malheur counties). These prosecutions are almost all concluded and, suffice it to say, for the most part prosecutors recognized the historical times. The most highly publicized of these prosecutions resulted, again for the most part, in misdemeanor convictions either at conviction or after one year’s bench probation.

As the number of these facilities expanded, advocates were working to legitimize them. In 2003 and again in 2010, initiatives to create a licensed and regulated medical distribution system qualified for the ballot only to be defeated at the polls. Finally in 2013, the Oregon Legislature enacted the governor signed into law HB 3460.

HB 3460 allows medical marijuana patients (who own all the medicine cultivated on their behalf) to authorize the grower to transfer the medicinal cannabis (in whatever usable form) to a licensed medical marijuana facility. The facility (dispensary) is allowed to fully reimburse the grower and is, in turn, allowed to be fully reimbursed by the patient or his or her caregiver.

Rules implementing HB 3460 were finalized earlier this year, and on March 3 the Oregon Health Authority began accepting applications. The dispensaries cannot be within one thousand feet of a school or one thousand feet of each other. Municipalities reacted in different ways: areas which had previously tolerated unlicensed and unregulated dispensaries continued to do so; others did not. (Referenda petitions have been filed in Clackamas County and in Medford.)

The municipalities and counties intolerant of the regulated distribution of medicinal cannabis either amended business ordinances or enacted moratoriums on dispensaries. This inevitably lead to litigation which, in turn, caused the Oregon League of Cities and Association of Counties to successfully lobby the 2014 Legislature to pass a bill allowing moratoriums, so long as they were enacted before May 1, 2014, and sunset by May 1, 2015. They have announced that they intend to pursue making this permanent in the 2015 Legislative Session.

So what’s going on right now in Oregon? Two things, in addition to the wind down of dispensary prosecutions.

Thing one is litigation seeking to have HB 3460 declared unconstitutional as pre-empted by the federal Controlled Substances Act. These cases are principally in Southern Oregon trial courts (Josephine and Jackson counties) and are destined to be resolved in the Oregon Supreme Court within the next several years.

Thing two is the submission of what is likely to be enough signatures for a decriminalization initiative—New Approach Oregon. Fellow OCDLA lawyer Paul Loney and I are the criminal defense lawyers involved in drafting this initiative.

New Approach Oregon builds on and fixes some of the problems with New Approach Washington’s I-502 and incrementally moves reform forward towards real legalization. We leave the Oregon Medical Marijuana Act alone, as well as Oregon’s DUII law (which already prohibits driving while impaired by cannabis). We allow home gardens (smaller than Colorado’s six plants and all you can grow) of four plants and eight ounces, and also allow, at home, 72 ounces of liquid infused products; 32 ounces of solid infused products and one ounce of oil. Four times these limits is a misdemeanor (which is why it is decriminalization and not legalization). It would allow the OLCC a year to come up with regulations for production, processing, wholesaling and retailing licenses for responsible adult use. It would tax production at $35/ounce for the flowers, $10/ounce for the leaf and $5 for a starter plant. As Oregon has no sales tax and assuming no legislative changes, these would be the only taxes.

Regarding taxes, the New Approach Oregon initiative makes it more difficult for municipalities or counties to opt out by creating tax benefits to the dispensaries in their communities; for those entities that do opt out, a referendum is automatically referred to the people without the burden of gathering signatures.

At its recent retreat, the OCDLA Board of Directors agreed to lend OCDLA’s support to the New Approach Oregon initiative. All of this is to say Oregon is going as far forward as politically possible, leaving it to California in 2016 to take us the rest of the way home.

Endnote

OCDLA Member Leland R. Berger practices statewide from his office in inner NE Portland, where he, and his legal assistant/office manager Leia Flynn, operate as Oregon CannaBusiness Compliance Counsel, LLC. Berger is a High Times Magazine Freedom Fighter of the Month, OCDLA President’s Award, NORML Citizen Activist of the Year and Oregon Cannabis Industry Association Lifetime Achievement Award recipient. A slightly different version of this article was originally published in the July 2014 issue of Marijuana Venture magazine.