Oregon judge: City can ban medical pot dispensaries; law doesn't expressly override home rule

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GRANTS PASS, Oregon — A judge in the heart of southwestern Oregon's marijuana growing country has ruled that the city of Cave Junction has the power to ban medical marijuana dispensaries, not just declare a moratorium.

Josephine County Circuit Judge Pat Wolke ruled Thursday in Grants Pass that a law enacted by the Legislature in 2013 does not prevent cities from denying business licenses to dispensaries.

The lawsuit was brought by Cave Junction against the state over an application for a business license to operate a dispensary. That license application has been tabled.

Ryan Kirchoff, the attorney for the city, says at this point the ruling applies only to the parties involved. But he expects it will be appealed, at which point a Court of Appeals ruling would apply statewide.

The judge did not address the primary argument of the lawsuit — the constitutional conflict between federal law banning marijuana in general and state law allowing patients to use marijuana as medicine.

Wolke relied on previous rulings in cases involving cities invoking home rule powers against state law, citing several where courts found the state law did not expressly or implicitly pre-empt local authority. He noted, however, that state liquor laws do pre-empt local authority.

"Because of this language, there has never been room for any government entity, other than the Oregon Liquor Control Commission, to regulate alcohol," Wolke wrote. In the dispensary license case, "there are no such words of express pre-emption," the judge said.

Hoping to tighten loose ends of the voter initiative, the Legislature adopted a law last year allowing state-licensed dispensaries to sell marijuana to card-holding patients. The law was later amended to let cities impose a one-year moratorium after cities and counties complained about having to allow dispensaries.

The state has not yet said whether it would appeal the ruling involving Cave Junction. The state attorney general's office was reviewing the ruling and did not have a comment, said spokeswoman Kristina Edmunson.

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