Pubdate: Wed, 14 May 2014
Source: Mail Tribune, The (Medford, OR)
Copyright: 2014 The Mail Tribune
Contact:  http://www.mailtribune.com/
Details: http://www.mapinc.org/media/642
Note: Only prints LTEs from within it's circulation area, 200 word count limit
Author: Damian Mann
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

JUDGE RULES AGAINST MEDFORD DISPENSARY, POT LAW

Gerking: Oregon Medical Marijuana Law Is 'Unenforceable'; Medford 
Councilor Says, 'Obviously, the City Is Pretty Happy'

A Jackson County Circuit Court judge on Tuesday upheld the city of 
Medford's right to revoke the business license of MaryJane's Attic 
and Basement for unlawfully selling marijuana.

In what could prove to be more far-reaching, Judge Timothy Gerking 
also found that the landmark Oregon Medical Marijuana Act governing 
medical marijuana is in conflict with federal law.

Relying on a previous Oregon Supreme Court employment case involving 
medical marijuana use, Gerking wrote that the state law is 
"unenforceable" because it conflicts with federal law.

In his ruling on the Medford business, Gerking said substantial 
evidence also showed that MaryJane's wasn't operating lawfully under the OMMA.

Leland Berger, attorney for Richard and Marlene Nuckols, owners of 
MaryJane's, said he wouldn't comment on the judge's ruling until he 
had a chance to discuss it with his clients.

The city issued a business license to MaryJane's on April 9, 2012, 
but the City Council revoked it in March.

The Nuckolses appealed the city of Medford's revocation of their 
business license to Jackson County Circuit Court.

At the time, Gerking said owners of MaryJane's could operate the 
business until he made a ruling, as long as medical marijuana or 
other controlled substances were not exchanged on the premises.

The Nuckolses have two separate businesses under one roof. MaryJane's 
Attic sells clothing, candles and other products. MaryJane's Basement 
dispenses medical marijuana to patients who display a valid Oregon 
Medical Marijuana Act patient card.

Gerking's ruling upholds the city's decision to revoke the business 
license for both businesses at MaryJane's.

"Suffice it to say, the city was authorized to issue a single 
business license to the Nuckols for their multiple business 
operations on the same premises, and the city was also authorized to 
revoke that license if there was unlawful activity occurring on any 
part of that premises," Gerking wrote.

Councilor Daniel Bunn said, "Obviously, the city is pretty happy with 
the results."

The biggest issue resolved by Gerking's ruling is that federal law 
preempts state law in this case, he said.

"I think it spells trouble for the OMMA," Bunn said.

Under his reading of the city code, Bunn said, the Nuckolses' 
business license would be revoked for a one-year period, after which 
they could reapply, though not as a marijuana dispensary.

While pleased with the outcome, Bunn said he anticipates an appeal 
and expects the debate on medical marijuana to continue.

He said the city sought clarity about whether it should be 
considering federal or state law because it hadn't received enough 
direction from lawmakers.

"We're happy the court sided with us but frustrated we're in this 
position," he said.

Gerking said he relied heavily on an Oregon Supreme Court case known 
as Emerald Steel Fabricators Inc. vs. the Bureau of Labor and Industry.

The Supreme Court ruled in that case that federal drug laws preempt the OMMA.

The court ruled Emerald Steel had the right to fire a 
marijuana-smoking employee who operated a forklift even though the 
employee had a medical marijuana card and limited his marijuana use 
to when he wasn't working.

Gerking found the Nuckolses obtained compensation from the sale of 
marijuana in excess of that allowed by state law.

The couple claimed the additional compensation was a donation, but 
Gerking stated, "This argument is disingenuous at best."

Last September, the Medford City Council enacted an ordinance 
essentially banning marijuana dispensaries. On March 20, the council 
enacted a permanent moratorium on marijuana dispensaries in response 
to House Bill 3460, which provides state licenses to sell medical marijuana.

MaryJane's recently obtained a state license to operate a marijuana dispensary.

Gerking didn't specifically rule on whether Medford's ordinance and 
moratorium violates state law.

"It is unnecessary for me to examine whether the city's ordinance is 
preempted by state law because I have already found that the 
applicable state law is unenforceable under the Supremacy Clause of 
the United States Constitution," Gerking wrote.
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MAP posted-by: Jay Bergstrom