Pubdate: Thu, 05 Mar 2015
Source: Oregonian, The (Portland, OR)
Copyright: 2015 The Oregonian
Author: Jeff Mapes


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 Oregon chapter of the 
American League of Civil Liberties, 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.
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MAP posted-by: Jay Bergstrom