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  • Phoenix dispensary citations dismissed

  • PHOENIX — A city judge has dismissed 33 citations that were issued against medical marijuana dispensary The Greenery for operating without a business license.
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  • PHOENIX — A city judge has dismissed 33 citations that were issued against medical marijuana dispensary The Greenery for operating without a business license.
    City of Phoenix Municipal Judge James A. Wickre dismissed the violations Thursday, he said.
    According to Wickre's interpretation of Phoenix's municipal code, The Greenery is exempt from the city's business license law based on the fact that the city is barred from issuing the dispensary a business license in the first place.
    "Since there is federal law prohibiting the sale of marijuana, then the city is prohibited from licensing a business that sells marijuana," Wickre said. "To put it into context, the city couldn't give them a license to sell heroin, because it's violation of federal and state law to sell heroin."
    Wickre cited this city ordinance: "The following persons are exempt from the license requirements imposed by the Business License Law: A. Persons whom the city is prohibited from licensing or taxing under the constitution or laws of the United States, the constitution or laws of the state of Oregon, or the Charter of the city."
    "This was not a criminal matter — this was a code violation, and they were found not in violation," Wickre said.
    Although his ruling allows The Greenery to continue operating without a business license, Wickre would not comment on whether he thought the dispensary would or should continue operating.
    "I won't comment because it could come back to me in another statute," he said.
    Phoenix Mayor Jeff Bellah said the City Council will discuss the matter during its April 7 meeting.
    "I think the first thing we need to do is change that ordinance," Bellah said. "It has been revised and apparently that sentence wasn't changed from long ago. I think it was a good move by their attorney to point that out."
    Bellah said it might take as long as six weeks to rewrite the ordinance and pursue new charges against The Greenery.
    "I don't think the city is interested in pursuing this from a criminal standpoint," Bellah said. "I don't look at this being horrible; I think the city was trying to make a point."
    The City Council voted March 3 to place a four-month moratorium on medical marijuana dispensaries, taking effect April 3, but Bellah said he expects The Greenery to continue operating without a business license following the latest ruling.
    And it will, said Melanie Barniskis, manager of the nonprofit dispensary and patient resource center for Oregon Medical Marijuana Program patients.
    "We are quite relieved and pleased that justice works for the cannabis community," she said. "It's a big-time win ... we feel very vindicated."
    On top of the citations, the city had been fining The Greenery $100 a day for continuing its unlicensed operations, but those fines were also thrown out, Wickre said. Each citation would have carried an additional fine of no more than $100, according to a related city ordinance.
    Barniskis said The Greenery's next step will be to continue providing a resource to OMMP patients in the area and pursing a referendum to overturn the city's four-month moratorium on dispensaries.
    Patients and medical marijuana advocates have been conducting a petition drive seeking to overturn the moratorium. To qualify for the September ballot, the group must obtain 261 signatures before the moratorium takes effect. Qualifying would put the moratorium on hold until the election.
    Whether the city returns with new charges, "the city will do what the city feels it has an obligation to do," Barniskis said. "Whatever they do, we will respond with the appropriate measure. ... We don't know what our response is going to be until they bring us something."
    Now that its legal standoff with the city has come to a rest, Barniskis said The Greenery will pursue filing an application for a state dispensary license from the Oregon Health Authority.
    Despite the moratorium, Bellah said the city hasn't taken a stand firmly against dispensaries, but needs to have the appropriate ordinance drafted to deal with them.
    "The fact that he (Wickre) dismissed the citations, I don't blame him, because that's what he interpreted from the ordinance," Bellah said.
    Barniskis contends that if the moratorium is overturned through petition and the dispensary issue goes to a vote in Phoenix, "they (City Council) are going to realize that their perception about how people feel about medical marijuana is way off."
    Reach reporter Sam Wheeler at 541-776-4471 or swheeler@mailtribune.com. Follow him at www.twitter.com/swhlr.
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