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Medford pot dispensary tests city's moratorium

Medford’s permanent moratorium on medical marijuana dispensaries hasn’t stopped one local shop from keeping its doors open.

Patients Helping Patients, at 2390 W. Main St., has a state license to dispense medical marijuana, but the city of Medford has twice cited the owner, Phil Carvalho, for failing to have a local business license. Carvalho had applied for a license but the city denied his request.

“I want nothing better than to be a part of Medford and to be accepted as a business,” Carvalho said.

Carvalho appealed the city's denial to the Medford City Council, arguing the city violated state law by enacting a permanent moratorium on medical marijuana dispensaries. The issue was scheduled for a hearing Thursday but was pulled from the agenda Monday at the request of Carvalho’s attorney, Phil Studenberg.

Councilors banned dispensaries because they believed allowing marijuana sales violated their oath of office to uphold state, federal and local laws. Marijuana is still considered illegal under federal law and is classified in the same category as heroin and LSD. 

On April 17, 2014, the council rejected a previous medical marijuana dispensary license for another business owned by Carvalho called The Lounge, at 617 E. Main St. Jackson County Circuit Court later upheld the city’s denial of the business license.

Karen Brown, owner of Paradise Tans, a business next to Patients Helping Patients in the Albertsons shopping center, has called the city to complain about the dispensary, saying customers have objected to the smell of marijuana.

“They hate it,” she said. “It takes away our civil rights, and we can’t do anything about it.”

As a result, Brown said she’s seen a loss in revenue and doesn’t understand how a lounge in the Patients Helping Patients portion of the building can have people who are consuming marijuana.

“They’re smoking it in there,” she said.

Studenberg said he would contact his client to see whether there was some way of minimizing the smell of marijuana from intruding on the neighboring business.

Patients Helping Patients is well within its rights to dispense medical marijuana based on current state law, Studenberg said.

“Our position is we’re sticking with the notion that state law preempts the county and the city,” he said.

In a Feb. 6 letter to the city, Studenberg cited the federal government’s easing of prosecutions in states that have enacted medical marijuana programs.

So far, Studenberg said, he hasn’t had much luck in Jackson County Circuit Court and expects he may have to take the issue to a higher court.

The state has allowed local jurisdictions to declare a moratorium on medical marijuana dispensaries until May 1, but Studenberg has argued that the city is violating state law by enacting a permanent moratorium.

Kevin McConnell, deputy city attorney, submitted his legal opinion to the council that the city is within its rights under state law to enact local ordinances, including the permanent moratorium. He said the city’s position has been upheld in the courts for both the Lounge and for Maryjane’s Basement, a dispensary that operated in the WinCo shopping center.

McConnell said the federal government continues to list marijuana as a Schedule 1 drug, which is in the same category as heroin and LSD.

Studenberg said he hopes that a federal judge rules that the scheduling of marijuana is improper, which could nullify the 1970 Controlled Substances Act.

U.S. District Judge Kimberly J. Mueller in Sacramento, Calif., called for a hearing on the issue last year and is expected to make a ruling in the near future.

Studenberg said the legal landscape continues to change since the first time Carvalho was denied a business license for the lounge.

“We’re arguing the federal situation has certainly changed,” he said.

In December 2014, Congress passed legislation included in a spending bill that prohibits federal agents from raiding dispensaries in states where medical marijuana is legal.

Reach reporter Damian Mann at 541-776-4476 or dmann@mailtribune.com. Follow him on Twitter at @reporterdm.