Local governments can restrict or ban medical marijuana facilities, a Josephine County Circuit Court judge concluded in a ruling issued late Thursday.
The ruling centered on the southern Oregon community of Cave Junction, where the city council sued the state over medical marijuana dispensaries, arguing that cities shouldn’t be required to license businesses that violate federal law. Marijuana is prohibited under federal law.
The case raised two key legal issues: Do local governments have the authority to ban medical marijuana dispensaries, and does the federal prohibition on marijuana preempt state law regulating the drug?
Judge Pat Wolke concluded that nothing in Oregon’s new dispensary law, passed in 2013, and a law enacted earlier this year allowing local governments to impose yearlong dispensary moratoriums prevents local governments from banning the establishments.
The ruling represents a victory for the League of Oregon Cities and the Association of Oregon Counties, both of which have argued strenuously for local governments’ ability to regulate and ban medical marijuana dispensaries.
“It’s a win for cities and local governments,” said Ryan Kirchoff, the Grants Pass attorney who represented Cave Junction in the case.
The Oregon Department of Justice argued that local governments do not have the authority to ban dispensaries but can impose moratoriums or regulate issues like hours of operation and location. It was not immediately clear whether the state would appeal the ruling.
Wolke’s ruling did not address the more fundamental question of whether federal law preempts state marijuana laws. The issue of local control and whether states’ marijuana laws violate federal law also are playing out in Washington, where medical and recreational marijuana are legal.
In his six-page opinion, Wolke analyzed two Oregon laws pertaining to medical marijuana dispensaries and concluded that neither clearly prohibits local governments from banning medical marijuana facilities.
Wolke wrote that he doesn’t believe “the Legislature’s intent for widespread dispensaries necessarily equates to greater access to medical marijuana than to traditional health care.”
The judge offered examples of rural Oregonians who need to travel 20 to 40 miles to get a prescription filled or to see a doctor, or even 150 miles to Portland to see a specialist.
“This court’s first child was born after a 90 mile drive from our home to a hospital in The Dalles,” Wolke wrote. “Yet few Oregonians would say they don’t have general access to traditional pharmaceuticals and physicians throughout Oregon.
Wolke added: “The resident of Fossil would understand that if he/she wanted immediate and quick access to traditional health care they might have to move to Portland.”
Which, Wolke noted, “no resident of Fossil would agree to.”
— Noelle Crombie