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Suit seeks to overturn Medford's pot ban

A medical marijuana dispensary has filed a lawsuit seeking to overturn the city of Medford’s permanent ban on pot sales.

Richard and Marlene Nuckols, owners of MaryJane’s Basement and Attic in the WinCo shopping center, are set to go to trial in Jackson County Circuit Court, almost a year after a judge shut their store down.

Robert Graham, Grants Pass attorney for the couple, said his clients are prepared for a long legal fight to overturn Medford’s yearlong ban on dispensaries.

“Medford should look at the reality of the situation,” Graham said. “From our position, it’s going to take a lawsuit to get them there.”

The Nuckolses, under their corporation BAM Solution Inc., were shut down in May 2014 by Circuit Judge Timothy Gerking, who found Oregon’s marijuana laws were voided by the federal Controlled Substances Act. Gerking later allowed MaryJane’s Attic to reopen, but not the Basement, which dispensed marijuana.

“If Gerking’s order holds up, then there is no enforceable law under either the OMMA (Oregon Medical Marijuana Act) or Measure 91,” Graham said.

Ballot Measure 91 became state law July 1 and allows anyone over the age of 21 to legally possess marijuana.

Graham said the federal government cannot commandeer state laws, and he said the state law doesn’t stand in the way of the federal government exercising its authority.

“The feds can walk in at any minute,” he said.

It was not clear Tuesday whether MaryJane’s Basement marijuana dispensary was continuing to operate based on a visit to the store by the Mail Tribune.

Richard Nuckols said, “We are not dispensing medicine. I’m not doing anything illegal. I’m not doing anything the city has asked us not to do.”

Graham said he would have no comment on whether medical marijuana is being sold at the store.

The Nuckolses applied for a new business license for MaryJane’s Lab on April 2, but it was denied by the city, according to court documents.

On May 1, the Nuckolses applied for a business license for MaryJane’s Basement, and the city denied the application. Senate Bill 1531 allowed cities to enact temporary bans last year but gave them until May to lift them.

MaryJane’s Basement has a state license to operate a medical marijuana dispensary.

Graham said Medford’s pot sales ban is preempted by state law, and in his suit he cites the Oregon Medical Marijuana Act, House Bill 3460 and Senate Bill 1531, which prohibits local governments from banning dispensaries. Under state law, cities can enact time, place and manner regulations for dispensaries. The city of Medford recently began a process to come up with such rules but hasn’t lifted the ban yet.

Graham said he will be making a similar argument in this case that was made in another court case where former sheriff Mike Winters tried to block giving a concealed handgun license to a medical marijuana patient. Winters said he would be violating the federal Gun Control Act of 1968 if he followed state law to give the permit to Gold Hill resident Cynthia Willis.

The Oregon Supreme Court ruled against Winters, and in 2011 the case went to the U.S. Supreme Court, which refused to hear it, effectively upholding the Oregon Supreme Court.

Graham did say there are other cases in Sandy and Cave Junction that are seeking to undermine the federal preemption argument being touted by some cities. A case in Cave Junction is being heard by the Oregon Court of Appeals after a lower court ruled the city could enact a ban.

Jackson County Circuit Judge Benjamin Bloom was set to hear the MaryJane’s case, but Graham filed a motion to have him disqualified, saying Bloom wouldn’t give Graham's clients a fair and impartial trial.

Graham said he wouldn’t discuss his rationale for filing the motion for Bloom to be disqualified.

Jackson County Circuit Judge Ron Grensky has been assigned to the case.

The city of Medford responded to the suit by citing its “home rule” authority, which gives a city more leeway to enact local laws but doesn’t necessarily make it free from abiding by state laws.

The city, in an answer written June 25 by Deputy City Attorney Kevin McConnell, also cites the federal Controlled Substances Act, which lists marijuana as a Schedule 1 drug, in the same category as heroin.

So far, local judges have upheld the city’s argument in following federal law to support its permanent ban on pot.

McConnell said he would refer any comments to the MaryJane’s suit in the legal arguments filed with the court.

“It’s going to be set for trial,” he said.

Medford also shut down Patients Helping Patients on West Main Street in June when Gerking said the store operated in “total defiance” of local and federal laws.

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