Legislative Counsel Opinion Favors Outdoor Cultivation
Oregon’s Legislative Counsel released its opinion late last week on whether or not outdoor cultivation restrictions in Oregon cities can be preempted.
“We that state law likely preempts a city or county ordinance from prohibiting outdoor cultivation of homegrown marijuana.”
In a opinion filed by Legislative Counsel, they answered the question, “..[W]hether a city by ordinance can legally prohibit outdoor cultivation of homegrown recreational marijuana grown for personal use or of homegrown medical marijuana grown by a registry identification cardholder for use by the cardholder.”
This opinion was a result of a request by Compassionate Oregon for Representative Ken Helm (D) Dist. 34, to submit legislation to exempt Oregon’s medical cannabis patients growing for themselves from the prohibitions on outdoor cultivation adopted in the cities of Medford and Grants Pass.
All outdoor cultivation in these cities is prohibited to the detriment of OMMP patients. Indoor cultivation is expensive, costing thousands of dollars to set up a simple indoor grow room. Indoor growing is harder and faces issues outdoor cultivation does not encounter and often those new to indoor growing are met with less than desirable results in the first few cycles.
HB 3040 was introduced to address this issue but has been pulled from the agenda and will not be heard this session.
However, Rep. Helm has agreed to work with Compassionate Oregon in developing a bill over the interim for the 2020 session and to assist in getting this opinion out to the public to begin building a coalition of patients affected by these prohibitions and a bill that is strong enough to withstand the opposition that will surely be coming.
Currently in Medford: 62 growsites within the city limits and in Grants Pass that number is below 50. In Grants Pass even growing in a greenhouse with opaque sides is considered outdoor cultivation.
Compassionate Oregon is seeking any of these growers to come forward to help with this effort. What we will need from you is:
- physical dimensions of inside grow
- the initial cost
- production quantities
- electrical and water consumption costs
Any OMMP patient/growers that can provide any of this information or willing to participate in moving this issue forward please reply to: firstname.lastname@example.org. Or call us at: 971.241.2707
Here is the opinion:
STATE OF OREGON
LEGISLATIVE COUNSEL COMMITTEE
March 19, 2019
Representative Ken Helm
900 Court Street NE H490
Salem OR 97301
Re: Local regulation of outdoor homegrown marijuana
Dear Representative Helm:
You asked whether a city by ordinance can legally prohibit outdoor cultivation of homegrown recreational marijuana grown for personal use or of homegrown medical marijuana grown by a registry identification cardholder for use by the cardholder.
There is a strong argument that state law preempts a city or county ordinance from prohibiting outdoor cultivation of homegrown marijuana. However, state law is not explicit in its preemption. Consequentially, the approach taken by the Oregon Court of Appeals in Brown v. City of Grants Pass (1) suggests that a court could uphold a city ordinance prohibiting the outdoor cultivation of homegrown marijuana by finding that state law does not unambiguously express an intention to preclude a local government from regulating whether the cultivation of homegrown marijuana occurs outdoors. We think that is the less likely outcome, but it remains a possibility.
Brown v. City of Grants Pass
In Brown v. City of Grants Pass, the plaintiff challenged a city ordinance requiring that marijuana “cultivation, drying, curing, storage, production or processing” for recreational or medical use “shall be conducted indoors.”(2) The parties agreed that the city’s ordinance applies to homegrown marijuana.(3) The plaintiff argued that state law, specifically ORS 633.738, preempts the city’s ordinance.(4)
A city ordinance is valid if the city charter authorizes the city to enact such an ordinance and if the ordinance does not contravene state or federal law.(5) If a local ordinance prohibits that which state law permits, a court will find the ordinance incompatible with state law and thus, preempted.(6) The court in Brown observed that the City of Grants Pass is a “home rule” city, whose charter provides the city’s governing body with “all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities” and provides that “the city shall have all powers necessary or convenient for the conduct of its municipal affairs.”(7) Finding that the city ordinance was a valid exercise of the city’s authority under its charter, the court next looked at whether the city ordinance contravenes state law.
When asked to determine whether a city ordinance contravenes state law, “the court will assume that a statute does not mean to displace ‘local civil or administrative regulation of local conditions . . . unless that intention is apparent.’”(8) The court explained that “[a] statute displaces a local ordinance if it ‘unambiguously expresses an intention to preclude local governments from regulating’ in the same area as that governed by the statutes.”(9)
The court looked at whether ORS 633.738 “unambiguously expresses an intention to preclude the city’s regulation of the home growing of marijuana plants.”(10) ORS 633.738 prohibits a local government from enacting or enforcing a local law or measure that would “inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed . . . .”(11) The court found that homegrown marijuana seeds and plants do not fall under the definition of “flower seed” or “nursery seed” or their “products” and are therefore not subject to ORS 633.738.(12) The court held that because marijuana seeds and plants are not subject to ORS 633.738, that statute does not preempt a local government from regulating homegrown marijuana seeds or plants.
Within the Adult and Medical Use of Cannabis Act (AMCA)(13) and the Oregon Medical Marijuana Act (OMMA),(14) there are two sections that explicitly permit a local government to place reasonable restrictions on commercial recreational marijuana producers and medical marijuana grow sites. These are ORS 475B.486 and 475B.928.(15) However, neither of these statutes speaks to whether a city or county may adopt reasonable regulations related to home growing of marijuana plants by a person or a registry identification cardholder.
Statutory intention under the AMCA
Under the AMCA, state law permits production or storage of up to four homegrown marijuana plants at a household by one or more persons 21 years of age and older.(16) “Household” means “a housing unit and any place in or around a housing unit at which the occupants of the housing unit are producing, processing, possessing or storing homegrown marijuana . . . .”(17) In turn, “housing unit” means “a house, an apartment or a mobile home, or a group of rooms or a single room that is occupied as separate living quarters . . . .”(18)
In reading the statutory definitions along with ORS 475B.301, the statutory plain text strongly suggests that a person may grow up to four marijuana plants “in or around” “a house, an apartment or a mobile home” that a person occupies. The phrase “in or around” suggests a person is permitted to home grow up to four marijuana plants indoors or outdoors.(19)
The only restriction imposed by state law is that a “person may not produce, process, possess or store homegrown marijuana [where it] can be seen by normal, unaided vision from a public space.”(20) This restriction can be read as being consistent with permitting a person to home grow marijuana plants outdoors as long as the plants cannot be seen by normal, unaided vision from a public space. In addition, a local ordinance cannot prohibit that which state law permits.(21) If state law permits homegrown marijuana in or around a household, a local ordinance cannot prohibit outdoor cultivation of homegrown recreational marijuana by a person.
Finally, ORS 475B.477 prohibits a city or county from adopting an ordinance that prohibits or otherwise limits a privilege described in ORS 475B.301 (homegrown marijuana) or the rights under ORS 475B.785 to 475B.949 of a registry identification cardholder to possess up to six mature marijuana plants or up to 12 immature marijuana plants.
There is a strong argument to be made that ORS 475B.301 provides that a person may cultivate up to four marijuana plants indoors or outdoors around their housing unit and that ORS 475B.477 prohibits a city or county from prohibiting or limiting that privilege. However, we cannot ignore the court’s decision in Brown. The court’s approach in Brown suggests that a court could uphold a city ordinance prohibiting the outdoor cultivation of homegrown marijuana by finding that the AMCA does not unambiguously express an intention to preclude a local government from regulating or even prohibiting the outdoor cultivation of homegrown marijuana.
Statutory intention under the OMMA
The OMMA authorizes marijuana grow sites that are registered in compliance with the OMMA, and this authority is without limitation as to factors such as whether marijuana is grown indoors or outdoors.
Under the OMMA, a marijuana grow site is a location registered under ORS 475B.810 where marijuana is produced for use by a registry identification cardholder.(22) ORS 475B.797 sets forth the criteria for registering a marijuana grow site. The criteria include submission of an application that includes the address of the marijuana grow site.(23) The application does not specifically require the address to be of an indoor or outdoor premises. In addition, ORS 475B.834 (3) distinguishes the amount of usable marijuana that a marijuana grow site located outdoors may possess versus the amount of usable marijuana that a marijuana grow site located indoors may possess.
The OMMA clearly does not prohibit the registration of outdoor marijuana grow sites, and it clearly imposes different regulations on outdoor and indoor marijuana grow sites. Taken together, these provisions suggest the legislative intent that both outdoor and indoor marijuana grow sites be permitted to register with the Oregon Health Authority.
We conclude that state law likely preempts a city or county ordinance from prohibiting outdoor cultivation of homegrown marijuana. The court’s approach in Brown suggests that a court could arguably uphold a city ordinance prohibiting the outdoor cultivation of homegrown marijuana. However, that case does not directly address the issue at hand and the statutory schemes for recreational and medical marijuana indicate a legislative intent to allow the outdoor cultivation of marijuana.
The opinions written by the Legislative Counsel and the staff of the Legislative Counsel’s office are prepared solely for the purpose of assisting members of the Legislative Assembly in the development and consideration of legislative matters. In performing their duties, the Legislative Counsel and the members of the staff of the Legislative Counsel’s office have no authority to provide legal advice to any other person, group or entity. For this reason, this opinion should not be considered or used as legal advice by any person other than legislators in the conduct of legislative business. Public bodies and their officers and employees should seek and rely upon the advice and opinion of the Attorney General, district attorney, county counsel,
city attorney or other retained counsel. Constituents and other private persons and entities should seek and rely upon the advice and opinion of private counsel.
Very truly yours,
DEXTER A. JOHNSON
Christopher P. Allnatt
1 291 Or. App. 8 (2018).
2 Id. at 10 (2018) (quoting Grants Pass Municipal Code (GPMC) 5.72.030 (2)). 3 Id. 4 Id. 5 Rogue Valley Sewer Services v. City of Phoenix, 357 Or. 437, 451 (2015). 6 See La Grande/Astoria v. PERB, 281 Or. 137, 148-149 (1978).
7 Brown, 291 Or. App. at 11 (quoting City of Grants Pass, Oregon, Charter chapter II). 8 Id., quoting Rogue Valley Sewer Services, 357 Or. at 450 (citations omitted). 9 Id. (emphasis and citations omitted). 10 Id. 11 ORS 633.738 (2). 12 Brown, 291 Or. App. at 12. 13 Now codified at ORS 475B.010 to 475B.545. 14 Now codified at ORS 475B.785 to 475B.949. 15 Under ORS 475B.486 (2), a city or county may “adopt ordinances that impose reasonable regulations on the operation of [recreational marijuana] businesses [ ]” and under ORS 475B.928 (2), a city or county may “adopt ordinances that impose reasonable regulations on the operation of marijuana grow sites of persons designated to produce marijuana by registry identification cardholders . . . .” 16 ORS 475B.301.
17 ORS 475B.015 (11). 18 ORS 475B.015 (12). 19 The word “or” serves to distinguish “around” from “in,” and the word “in” is inside the housing unit while “around”denotes outside and within some proximity to the housing unit.20 ORS 475B.306. 21 See La Grande/Astoria v. PERB, 281 Or. 137, 148-149 (1978) (explaining that in determining whether a state law prohibits a local ordinance, the question is “whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.”). 22 ORS 475B.791 (12). 23 ORS 475B.797 (2)(f); ORS 475B.810 (2).