Dime bags will not be sold at Walgreens: Medical Marijuana Dispensaries and HB 3460

When the State legalized the use and limited distribution of marijuana for medical purposes, patients were immediately faced with the question of how to get their marijuana. Persons with a medical marijuana (MM) card are allowed to grow their own plants or appoint a designated grower, but according to the Oregon Department of Justice, anywhere from 150-200 dispensaries or “pharmacies” are in operation serving the needs of MM patients who are unwilling or unable to grow their own plants or find someone to do it for them. Up until now, the dispensaries/pharmacies have operated under exiguous state regulation, which has led to diversion to the black market and other misuses. HB 3460 requires the Oregon Health Authority (OHA) to license and regulate medical marijuana dispensaries, and creates a registry of businesses that sell medical marijuana. The registry will be available to law enforcement agencies. HB 3460 sets forth some initial regulations by prohibiting dispensaries within 1,000 feet of a school or another dispensary, requiring robust security measures, allowing only MM card carriers or their registered caregivers to enter the premises, and giving OHA the authority to draft additional rules to implement the bill.

Under the new legislation, cities retain the ability to regulate dispensaries beyond what is contained in the bill, thereby reflecting local needs. For example, cities may impose additional regulations pertaining to siting.  Cities are, however, encouraged to work closely with the lawyers here at BEH to draft such regulations, as legal challenges will likely arise.

This topic will continue to develop as the state and localities navigate through somewhat murky territory. We will keep you posted on any developments, and as always, feel free to contact our office with any questions you might have.

No protection for medical marijuana use under the ADA

The Ninth Circuit Court of Appeals recently affirmed the denial of a preliminary injunction sought by medical marijuana users who claimed that two California cities that were raiding their medical marijuana dispensaries were violating the users rights under the Americans with Disabilities Act (ADA).

In James v. City of Costa Mesa, plaintiffs brought suit under the ADA claiming that each plaintiff is “a qualified person with a disability as defined in the ADA.”  Under Title II of the ADA, public entities “must not intentionally or on a disparate impact basis discriminate against the disabled individual’s meaningful access to public services.”  Plaintiffs alleged that city raids and closures of medical marijuana dispensaries interfered with their access to the medical marijuana they use to manage their illnesses, thus, the defendant cities have effectively prevented them from accessing public services in violation of Title II.

The Court affirmed the lower court’s ruling, denying plaintiff’s plea for injunctive relief because, in the Court’s opinion, the ADA does not protect against discrimination on the basis of medical marijuana use permitted under state law; the use must be authorized by federal law.  The Court’s opinion recognized that plaintiffs are “gravely ill” and sympathized with “their right to live comfortably,” but stated that Congress has made it clear that the ADA defines “illegal drug use” by reference to federal, not state law, and that federal law does not authorize the use of marijuana for medical purposes.  The Court said, “We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.”

Plaintiffs argued that “illegal use of drugs” – in this case marijuana – was excepted under the ADA.  Section 12210(d)(1) of the ADA defines “illegal use of drugs” as:

 the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

 Plaintiffs argued medical use of marijuana falls within one of the exceptions because their use of the illegal drug is supervised by a licensed health care professional.  The cities disagreed with this interpretation and argued that Section 12210 contains a single exception that covers all uses authorized by the Controlled Substances Act (CSA) or other provisions of law.  The Court held that the cities’ interpretation of Section 12210 was correct, and commented that the plaintiff’s interpretation was a substantial departure from the federal policy that does not extend federal protections to federally prohibited, but state-authorized, medical use of marijuana.  The Court found that the cities’ interpretation “not only makes the best sense of the statute’s text and the historical context of its passage, but also is the only interpretation that fully harmonizes the ADA and the CSA.”  Accordingly, doctor-supervised marijuana use is an illegal use of drugs not covered by the ADA’s supervised use exception.

This case demonstrates that although state views on medical marijuana are often contrary to the federal government’s views, and although federal views may be evolving, it is clear that at this point in time federal laws do not recognize marijuana for medicinal purposes and until they do, marijuana used for any purpose under the CSA is an “illegal drug use.”

Medical Marijuana in the Wake of Oregon Ballot Measure 74’s Failure

Oregon Ballot Measure 74 would have, among other things, permitted medical marijuana dispensaries to operate in the state.  Such dispensaries currently exist in California and Colorado.  Fifty-eight percent of Oregon voters ultimately rejected Measure 74. While this means that dispensaries will not be moving in to vacant storefronts in Oregon any time soon, communities throughout the state continue to face various challenges under the Oregon Medical Marijuana Act (“OMMA”).  Two issues that Oregon local governments increasingly confront are: (1) groups of growers seeking to lease common space to grow marijuana for cardholders; and (2) groups seeking to establish medical marijuana clubs where growers and cardholders can exchange marijuana.  Once such club recently opened in Bend and another had operated in Portland but closed last spring.

The OMMA does not explicitly address either cooperative grows or so-called “cannabis clubs,” which leaves many communities asking whether and to what extent they can be regulated locally.  While the issue is still being researched and debated, the “growing” (bad-dum-bump) consensus is that the OMMA would not preempt local governments from regulating these ancillary effects of the OMMA.  Regulations may include limitations or prohibitions on cooperative grows and possibly licensing requirements for cannabis clubs.

At this point, Oregon communities should anticipate an increase in the number and variety of OMMA-related issues that they will face.  While it is likely that local governments in Oregon have some authority to regulate these issues, consultation with a city’s attorney or a county’s counsel is critical prior to establishing any such regulations.

We will continue to monitor such efforts and provide updates accordingly.