An attempt to ban medical marijuana dispensaries by Medford officials may be trumped by a new law that appears to give the state ultimate authority to regulate agricultural operations.
Rep. Peter Buckley, an Ashland Democrat who championed the medical marijuana dispensary law, said dispensaries could be protected by Senate Bill 863, which gives the state the authority to regulate agricultural crops and businesses.
"Senate Bill 863 does pre-empt any city or county from regulating the sale or distribution or advertisement of seed or the byproducts of seeds," Buckley said.
Buckley said the case can be made that both the dispensary law and SB 863 give the state the authority to regulate medical marijuana, not counties or cities. He said legislative counsel has given him a verbal opinion on the issue, though he's waiting for a written opinion.
Medford recently inserted tougher language into its code in anticipation of pot dispensaries opening next year by banning any business engaged in activity that is unlawful under federal, state or local law. Medford officials say they have taken an oath to uphold federal laws.
Other cities are contemplating similar ordinances and would rely on federal law to ban dispensaries.
Medford has attempted to revoke the license of MaryJane's Attic and MaryJane's Basement over allegations of unlawfully dispensing medical marijuana. The business has appealed the decision.
Marijuana is a controlled substance under federal law, but states with medical or recreational-use marijuana laws won't be prosecuted by the U.S. government as long as there's no money laundering, sales to minors or growing on public lands, the U.S. attorney general has said.
Under HB 3460, dispensaries will not be allowed until an advisory committee for the Legislature devises rules by next March.
Buckley said Medford officials may have taken an oath to uphold federal laws, but they've also taken an oath to uphold state law.
Medford Councilor Chris Corcoran said he was surprised to learn that Buckley was citing SB 863 in asserting state authority over dispensaries.
"I'm sorry — they're getting desperate," he said.
SB 863 was written to deal with growing concern over genetically modified organisms, or GMOs. However, the bill doesn't specifically mention GMOs.
It only provides a framework for state control over agricultural regulations. The only exception is that it will allow an anti-GMO initiative to go before voters next May in Jackson County.
Corcoran said he has no problem with people who are using marijuana for legitimate medical reasons. He does have a problem with laws that make the drug more accessible and essentially make it legal, he said.
"The Legislature put the cart before the horse," Corcoran said. "They found a way to distribute the marijuana, but they haven't found the means to determine for who and when it should be prescribed."
He said voters in 2010 rejected an initiative that would have created dispensaries.
"If they would tighten up how medical marijuana is allowed and under what circumstances you can have a medical card, then there would be safeguards in place," he said.
Williams resident Laird Funk, who is on the state medical marijuana advisory committee that is creating the rules for HB 3460, thinks Medford can't enact local ordinances that conflict with state law.
"That regulation is totally the domain of the state," Funk said.
He criticized Medford police Chief Tim George's assertion that he will rely on federal law to ban the clinics.
"He can start right now arresting all the medical marijuana users living in Medford and putting some teeth into his boast," Funk said. "But he doesn't do that because it would cost him and the county a lot of money to prosecute these folks, and that would not be popular."
Chief George said he would not get into a debate with Funk over the legality of the Medford code concerning business licenses.
"He is entitled to his opinion," George said. "Such legal opinions will come downstream I'm sure, but they will not come from me or Mr. Funk."
George said he endorses the modifications to the code, pointing out they were unanimously approved by the City Council on Sept. 5.
"This is a council decision," he said. "This isn't me making the decision."
Reach reporter Damian Mann at 541-776-4476 or firstname.lastname@example.org. Follow on Twitter at @reporterdm.