Report from AOC to the Joint Committee on Marijuana Legalization Monday, November 16, 2015 Rob Bovett Legal Counsel Association of Oregon Counties
Outline 1. Status of local control of marijuana businesses Counties unincorporated areas 2. Legislative tune-ups needed in 2016 Six items draft provided 3. Status of litigation related to marijuana businesses Oregon, Washington, and Colorado
1. Status of local control of marijuana businesses Counties unincorporated areas
2015 Oregon House Bill 3400 Clarified: Local time/place/manner regulatory authority Sections 33, 34, and 89 Two opt out paths Section 133 Counties, and cities in counties, that voted No on Measure 91 by 55 percent or more Section 134 Any county or city Election in November of 2016
Measure 91 Election Results and HB 3400 Opt Out Options Clatsop Columbia HB 3400 134 counties (local election required): Yes and No (less than 55%) HB 3400 133/134 counties: No (55% and above) Tillamook Washington Yamhill Multnomah Clackamas Hood River Sherman Gilliam Morrow Umatilla Union Wallowa Wasco Polk Marion Wheeler Baker Lincoln Benton Linn Jefferson Grant Crook Lane Deschutes Coos Douglas Malheur Harney Lake Klamath Curry Josephine Jackson
Local Control of Marijuana Businesses in Oregon Counties Opt out of all Opt out of all (election) Opt out of retail (election) Clatsop Columbia Likely to adopt time/place/manner ordinances Likely to take no special action Decision making in process Updated 11/10/2015 Tillamook Washington Yamhill Multnomah Clackamas Hood River Sherman Gilliam Morrow Umatilla Union Wallowa Wasco Polk Marion Wheeler Baker Lincoln Benton Linn Jefferson Grant Crook Lane Deschutes Coos Douglas Malheur Harney Lake Klamath Curry Josephine Jackson
2. Legislative tune-ups needed in 2016 Six items draft provided
Legislative Tune-Ups Needed in 2016 1. Alter the state tax distribution formula to better reflect disbursements based on impacts See pages 1 to 3 of draft legislation NOTE: What is contained in the draft legislation is just one possible method of fixing this issue 2. Refine the taxation forfeiture provision, by allowing some tax distributions if not all categories of marijuana business are prohibited locally See page 4 of draft legislation
Legislative Tune-Ups Needed in 2016 3. Clarify an easy opt in for any category of marijuana business See page 4 of draft legislation 4. Continue to clarify marijuana offenses, and adjust marijuana offense levels, to ensure that no gaps exist, and that increasing/decreasing offense levels are proportionate See pages 5 to 12 of draft legislation See also written testimony for section-by-section explanation
Legislative Tune-Ups Needed in 2016 5. Amend ORS 305.620 to clarify that DOR can enter into IGAs with local governments to collect local marijuana taxes See pages 12 to 13 of draft legislation 6. Amend LUCS language to clarify that applicants can ask for the LUCS (in addition to OLCC) See pages 13 to 14 of draft legislation
3. Status of litigation related to marijuana businesses Oregon, Washington, and Colorado
Oregon City of Cave Junction v State of Oregon (Cave Junction I) Providing All Patients Access v City of Cave Junction (Cave Junction II)
Issues in Cave Junction Cases 1. Does state law preempt local opt out of marijuana businesses (other than through HB 3400 paths)? 2. If so, does federal law, in turn, preempt? NOTE: AOC continues to be agnostic on marijuana. AOC defends local rights to have, or not have, marijuana businesses. In short, AOC supports local control.
Status of Cave Junction Cases 1. Cave Junction I LOC/AOC prevailed in trial court State law does not preempt (case # 14CV0588) On appeal to the Oregon Court of Appeals Briefing now complete (case # A158118) 2. Cave Junction II City/LOC/AOC prevailed in trial court Federal law preempts any state preemption (case # 14CV1246) On appeal to the Oregon Court of Appeals Briefing in process (case # A160044)
Washington 1/16/14: Washington Attorney General Opinion - I-502 does not preempt local opt out (AGO 2014 No 2) Four trial courts have agreed Pierce County Superior Court MMH v City of Fife (8/29/14) (lead case) Green Collar v Pierce County (12/22/14) Chelan County Superior Court SMP Retail v City of Wenatchee (10/17/14) Benton County Superior Court Americanna Weed v City of Kennewick (11/21/14) Cowlitz County Superior Court Emerald Enterprises v Clark County (12/3/14) Status: City of Fife case at Washington Court of Appeals Briefing now complete (case # 46723-2)
Colorado Supremacy Clause / Preemption Cases Nebraska and Oklahoma v Colorado 22O144 (US Sup Ct, Dec 18, 2014) Petition asking SCOTUS to allow complaint (12/18/14) Relief sought: Injunction against» Marijuana business licensing and regulation provisions of Amendment 64 9 former DEA Administrators agree (2/19/15) Colorado, plus Washington and Oregon, disagree (3/27/15) Reply brief of Nebraska and Oklahoma (4/3/15) Status: SCOTUS asked USDOJ to chime in (5/4/15)
Colorado Supremacy Clause / Preemption Cases Smith v Hickenlooper 15-cv-462 (D Colo, Mar 5, 2015) Plaintiffs: 6 Colorado Sheriffs, 2 Nebraska Sheriffs, 1 Kansas Sheriff, 1 Kansas County Attorney, and 1 Nebraska County Attorney Defendant: Governor of Colorado Relief sought: Injunction against» Personal allowance provisions of Amendment 64» Marijuana business licensing and regulation provisions of Amendment 64
Colorado RICO Cases Racketeer Influenced and Corrupt Organizations Act 18 USC 1961-1968 Enacted in 1970 as Title IX of the Organized Crime Control Act of 1970 Criminal Civil Including forfeiture Injunctive relief Treble damages Attorney fees
Colorado RICO Cases Reilly v Alternative Holistic Healing 15-cv-349 (D Colo, Feb 19, 2015) RICO and Supremacy Clause / Preemption Plaintiffs: Own 105 acres of land, Rye, Colorado, next to recreational marijauna grow Defendants: Owners of Rocky Mountain Organic recreational marijuana grow and retail shop, business partners (property owner, bonding company, water supplier, construction contractor) (the RICO Defendants )... and Governor and State officials (state licensing), and Pueblo County (local licensing) for preemption of licensing
Colorado RICO Cases New Vision Hotels v Medical Marijuana of the Rockies 15-cv-350 (D Colo, Feb 19, 2015) Plaintiff: Owns Holiday Inn, Frisco, Colorado Defendants: Owners of Summit Marijuana dispensary planning to open retail, and business partners (property owner, construction contractor, bank, bonding company, accountant)
RICO Cases Colorado
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