Marijuana
In this Sept. 18, 2012, file photo a caregiver picks out a marijuana bud for a patient at a marijuana dispensary in Denver. Oregon legislators are now debating how to implement a voter-approved law allowing recreational marijuana sales.
(AP Photo/Ed Andrieski, File)
Oregon's new marijuana legalization law is on shaky legal ground when it tries to limit the ability of local governments to tax and regulate retail sales of the drug, lawyers for cities and counties argued Wednesday.
The warning of potential legal action came as the counties and cities continued to press the Oregon Legislature to rewrite the marijuana measure approved by voters last November.
The local governments want the ability to levy their own taxes on retail marijuana sales, and they want more latitude to prohibit local sales altogether.
"Frankly, I would prefer to work with you than go to court," Rob Bovett, legal counsel for the Association of Oregon Counties, told legislators studying the implementation of Measure 91.
Bovett presented an eight-page legal memo also signed by Sean O'Day, general counsel of the League of Oregon Cities, arguing that both state and federal law could trump the new law's provisions.
Sponsors of the initiative say they banned local taxes to ensure that retail prices stay low enough to compete with the black market. And they argue that only local voters - not a city or county council - should be able to decide to ban local pot sales.
Anthony Johnson, the measure's chief sponsor, said challenges in federal court are likely and are already occurring in Colorado, which legalized the drug in 2012.
But he said he thought Measure 91 would still have a strong legal case for surviving a federal court challenge.
"Let the will of the people be adopted," Johnson told members of the Joint Committee on Implementing Measure 91.
Bovett and O'Day argued in their memo that forcing local governments to accept retail marijuana establishments could run afoul of federal courts given that the drug is still illegal under federal law.
It's one thing, Bovett told the committee, for a state to say it won't prosecute anyone for possessing small amounts of marijuana. It's another to compel a city or county to accept an activity that is still illegal under federal law, he said.
Bovett and O'Day argued that even under state law, cities and counties have the ability to go around Measure 91 to levy taxes and have more latitude in restricting or prohibiting retail sales.
David Fidanque, executive director of the American Civil Liberties Union of Oregon, said after the hearing that it may well be that marijuana taxes imposed by localities before Measure 91 was passed are legal. For that reason, he said legislators should pass a law making it crystal clear that local taxes are prohibited.
Measure 91 says that retail sales can only be banned in a city or county if local voters gather enough signatures to place the measure on the November general election ballot.
Cities and counties want to allow their governing bodies to ban retail sales - or at a minimum send a measure to the ballot asking their voters to do so.
--Jeff Mapes
503-221-8209
@Jeffmapes