Medford Marijuana Grow Ban Would Include Personal Pot Gardens

   

Update: Thanks to the cannabis community rallying, the Medford City Council tabled their vote on banning personal gardens, but may send the issue to voters. The Mail Tribune reports:

The Medford City Council voted down an ordinance Thursday night banning all growing of residential marijuana inside city limits, indoor and outdoor.

However, the council directed city staff to explore putting two ordinances to voters, one banning the outdoor growing of marijuana and the other banning indoor growing of pot.

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The vote and motion came after what was intended to be a 30-minute comment period swelled to 90 minutes of impassioned speeches in favor of recreational cannabis and medical marijuana from growers and users brandishing green ribbons. Earlier Thursday, more than 100 people spoke against the ban before the council decided to hold another meeting later in the day to accept more comments.

The Mail-Tribune reports that a proposed Medford marijuana grow ban would affect 1,942 growers in this small Southern Oregon city.

Medford’s city council is considering an ordinance that wouldn’t just ban big commercial cannabis farms supplying marijuana for adult personal consumption. Tomorrow, the ordinance receiving a second reading would ban indoor and outdoor grows for any purpose, not just the new commercial licensees created through our 2014 marijuana legalization initiative.

That means nearly two-thousand medical marijuana grow sites and the patients who depend on them would be wiped out. Growing one’s own marijuana would become a civil violation under the ordinance.

A plain reading of state law shows that Medford has no legal justification for such an all-encompassing ban. Fifty-six percent of Oregon voters passed Measure 91 in 2014, which was amended by House Bill 3400 in 2015. Fifty-three percent of Jackson County voters voted yes, which drills down to support as great as sixty-five percent in the Medford downtown Precinct 58. The relevant portion of the law is in Section 134:

The governing body of a city or county may adopt ordinances to be referred to the electors of the city or county… that prohibit or allow the establishment of any one or more of the following… Marijuana processing sites… Medical marijuana dispensaries… Marijuana producers… Marijuana processors… Marijuana wholesalers… [and/or] Marijuana retailers…

The ability to ban, as decided by the voters and the legislature, applies then to just the commercial marijuana world, from grow to sale, not to the personal four plants allowed for all adults and the medical six plants allowed for medical marijuana cardholders.

Even then, since Jackson County didn’t oppose Measure 91 by 55 percent, as per the West Idaho Compromise, they would have to refer any commercial marijuana bans to the voters at the next general election.

But the City of Medford isn’t concerned with state law. They are basing their right to ban on the twin pillars of local home rule and the federal prohibition on marijuana.

“The ability to ban grows is pre-empted by state law,” says Portland marijuana attorney Leland Berger. “However, in Medford, the Jackson County Circuit Court has ruled in civil cases that federal Controlled Substances Act pre-empts the state marijuana laws, specifically as to HB 3400 and medical marijuana dispensaries. The reasoning is broad enough it would cover the adult-use home cultivation as well.”

Berger speculates that the ordinance, if it were challenged, would likely prevail in trial court, only to be taken up in appeal, along with a current case from Cave Junction that ruled the southern Oregon city could refuse to issue business licenses to medical marijuana dispensaries.

The City Council feels the need to institute a marijuana grow ban because of the threat of crime and the neighborhood nuisance of marijuana odor. Yet in last Thursday’s first reading, Lt. Kevin Walruff gave a presentation showing that since 2012, there have been 44 criminal cases involving marijuana, declining from a high of 17 in 2012 to just eight this year. Lt. Walruff also said that there have only been 27 official complaints about marijuana odor, and that most of the cases were resolved through mediation.

A lack of actual data, however, hasn’t stopped a majority of the City Council from believing that marijuana growing is an existential threat to peace and harmony in Medford. Mail-Tribune reporter Damian Mann has been covering the council and their justifications for the ban ordinance are appalling.

Councilor Tim Jackle claims he’s received numerous complaints about marijuana grows and Councilor Dick Gordon believes the low numbers of official complaints don’t accurately represent the problem, because “After a while, you don’t complain because you want to get along with your neighbors.”

Most disturbing is Councilor Daniel Bunn, who agrees with Gordon that “There are a lot of people who don’t like it but are afraid to complain. [They] don’t want to go on record saying my neighbor does drugs,” he said. “[They] are afraid of these people, and they should be.”

It’s always a telling sign of prejudice when you hear someone use the term “those people”.

Russ Belville

"Radical" Russ Belville is a blogger, podcaster, and host of The Russ Belville Show, a daily two-hour talk radio show focused on the evolution of the legal marijuana industry in the United States. The program is airing live at 3pm Pacific Time from Portland, Oregon, on CannabisRadio.com, with podcast available on iTunes and Stitcher Radio. Russ began his marijuana activism in 2005 with Oregon NORML, then in 2009 went on to work for National NORML, and found and direct Portland NORML.in 2015.