Tuesday, March 8, 2016

Answering Judge Wolke’s ruling

This is my answer to Judge Wolke's ruling, upholding Grants Pass' nuisance code "Homegrown and Medical Marijuana," GPMC GPMC 5.72.030.  I interject my comments within the text in parentheses and Times Roman italics.

Judge Wolke sent his ruling letter in gray print:  https://drive.google.com/file/d/0BwG6RgIEsBngSUZfM3hxdEU2Qjg/view?usp=sharing, so I transcribed it below for easier reading. I put (sic) after errors of spelling, quoting, or citation; but not after misplaced punctuation.          

Under the letterhead of the Oregon Judicial Department, Josephine County Circuit Court, addressed to attorneys Eric B. Mitton, attorney for defendant, and Andrew DeWeese, Attorney for plaintiff:

Re: Rycke Brown vs. The City of Grants Pass, Josephine County Circuit Court Case No. 15CV26821

Dear Counsel:

Each party has made motions for summary judgment.
Plaintiff’s argument is that the City’s outdoor regulation of marijuana plants is pre-empted by the “Seed Bill” and specifically ORS 633.738(2), in that marijuana is either a nursery seed or flower seed.

Flower seed is defined in ORS 633.511(6) as follows:

“Flower seed” means seeds of herbaceous plants grown for their blooms, ornamental foliage or other ornamental parts, and commonly known and sold in this state under the name of flower or wildflower seeds.

Homegrown marijuana is not grown for its blooms or ornamental value, and therefore is not covered by this definition.

(It most certainly is grown for its blooms, and this is not a three-part test, as defendant’s attorney claimed in the hearing.  It says, “grown for its blooms, ornamental leaves, or other ornamental parts.”  That it is grown for its blooms is sufficient. The blooms don’t have to be ornamental, but users find them so, fresh or dried.  It is flower seed, grown for its flowers, which are the most valuable part of the plant.)

Next, plaintiff argues that, if not a flower seed, homegrown marijuana is a “nursery seed.”

Although the legislature defined marijuana as a “propagent” (sic) of nursery stock for the purposes of ORS 475.300-475.346, now ORS 475B.400-475B.520 (i.e. medical marijuana), that is all they have done.

The question for this case is whether ORS 633.738(2) pre-empts the City’s regulation of up to 4 homegrown marijuana plants (hereinafter referred to as “home grows”) as allowed by ORS 475B.245 et Seq.

ORS 475B.245 begins with a long list of state regulations that do not apply to home grows, which the Court believes is inconsistent with the notion that the state desires to be the sole regulator in this area.  For example, the power of the OLCC to police marijuana does not apply to home grows (ORS 475B.040, et seq.).

(And yet, the other class of products regulated by Oregon Liquor Control Commission, alcoholic beverages, are not allowed to be regulated by local governments, and OLCC does not police home brewing, home winemaking, or home distilling until and unless the household has more of these products on hand than the amount allowed for household use.  The case is the same with cannabis home grows and their defined limits on possession of cannabis and its products in order to be excluded from OLCC regulation. OLCC and other regulatory agencies regulate only businesses, and those with enough product to be considered a business.)

In order for home grows to be included within the pre-emptive effect of ORS 633.738(2), their inclusion would have to be consistent with the express legislative intent of the “Seed Bill” contained in ORS 633.733(2), to wit:

           “The Legislative Assembly finds and declares that:
(a) The production and use of agricultural seed, flower seed, nursery seed, and vegetable seed and products of agricultural seed, flower seed, nursery seed, and vegetable seed are of substantial economic benefit to this state.
(b) The economic benefits resulting from agricultural seed, flower seed, nursery seed, and vegetable seed and seed product industries in this state make the protection, preservation, and promotion of those industries a matter of statewide interest that warrants reserving exclusive regulatory power over agricultural seed, flower seed, nursery seed, and vegetable seed to the state...”  (Emphasis added)

(We note that he left off the last line:

“...and; (c) The agricultural seed, flower seed, nursery seed and vegetable seed and seed product industries in this state will be adversely affected if those industries are subject to a patchwork of local regulations.”

What is amazing is that the Legislature allowed local governments “reasonable” local regulation of cannabis businesses.  They did so with specificity of what could be regulated, “notwithstanding ORS 633.738.”  It is therefore unlikely that they would allow local regulation of home grows by default, without specificity of what could be regulated and ignoring ORS 633.738.)

The first question, is whether or not home grows constitute a “substantial economic benefit to the state”?  Economic benefits, or detriments, may be internal or external.  There may be a very slight internal benefit to the home grower, because his/her net growing costs may be less than the purchase price of comparable marijuana (though the government is deprived of their tax revenue as a result).  The Court believes that there may be significant external detriments related to outdoor home grows.  The most apparent negative externality is the effect of home grows on neighbors in close proximity, who rightfully regard their home equity as their most important investment.  This Court believes that some neighbors would regard a healthy outdoor grow, in close proximity to their backyard, as decreasing the value of their own property.  Judging by the language of the City’s ordinance, that concern appears to be part of the rationale for GPMC 5.72.030.

(The Court plays down the economic benefit to the home grower and neglects the same benefit for the home grower’s relatives and friends who enjoy cannabis.  It can be a great economic benefit, and much more so if we can grow them in sunlight, their proper place.  We are encouraged by the state’s low household possession limit on dried cannabis and its products and being allowed to give away up to an ounce at a time, to give cannabis freely to others who want it.  This benefit for both growers and receivers extends to all users by keeping the price down in the stores due to competition with homegrown cannabis.  This benefit to all users extends a benefit to producers and sellers of other products and services by freeing up money that would otherwise be spent on cannabis.  

Lower cannabis prices in stores even protects and benefits the legal cannabis industry and the state by suppressing competition from black market cannabis.  Lower prices make it harder for black marketers to make a profit worth the risk of illegal selling.  The legislature was apparently much more concerned with stopping black market activity than with collecting maximum taxes, because they changed the $35 per ounce tax in Measure 91, which would never decrease with price, to a 17% sales tax that falls along with the price, taking away that $35 floor under which the black market could operate.  

The Legislature even added 16 oz. of cannabis "concentrates" to the homegrown exception possession limits in ORS 475B.245, as well as allowing us to share up to 16 ounces of the same with other households, adding their approval of the homegrown exceptions to that of the state's voters. Cheaper cannabis is good for the poor, and free is better.  The state has an interest in allowing poor people to grow their own food, medicine, and “recreation” and thus manage their money better.)
Likewise, home grows, by definition, are not “industries”.  ORS 475B.015(8) defines homegrown and homemade as follows:

“Homegrown or homemade means grown or made by a person 21 years of age or older for non-commercial purposes.” (Emphasis added)

Next, this court does not find support in ORS 571.005(5) for the proposition that four marijuana plants allowed by ORS 475B.245(1) are included in the definition of “nursery stock”  Again, the legislative intent for this statutory scheme is found in ORS 571.015[:]

“The Legislative Assembly finds and declares that the propagation and raising of nursey (sic) stock is an agricultural pursuit that should be regulated and assisted by the State Department of Agriculture” (Emphasis added)

The Court does not believe that raising four marijuana plants is an agricultural pursuit and that the State desires to regulate such grows with its Department of Agriculture.

An agricultural pursuit can be a narrow as growing a plant; or as broad as growing or raising plants or animal for a living.  In the context of the remainder of the remainder of ORS 571.005 et seq., the Court believes that an agricultural pursuit is one with the hope of an economic reward.  Since the home growers have already been excluded from regulation by the OLCC (while other types of marijuana enterprises are regulated by the OLCC), it would be puzzling if this narrow and small slice of regulation has been assigned to the Oregon Department of Agriculture.

(The Court argues with itself here, saying this:

“The Court does not believe that raising four marijuana plants is an agricultural pursuit and that the State desires to regulate such grows with its Department of Agriculture.”

Directly followed by:

“An agricultural pursuit can be a narrow as growing a plant; or as broad as growing and raising animals and plants for a living.” 

Also, homegrown is indeed grown in hope of an economic reward: being able to spend a lot less money on cannabis.  And as stated earlier, the Department of Agriculture and OLCC regulate only businesses, not residences.)

ORS 471.015(2) (sic—571.015(2)), goes on to list the extensive powers granted to the Oregon Department of Agriculture to regulate nursery stock (e.g. to inspect, to certify, to investigate and enforce).

Notably, these are some of the same types of powers that ORS 475B.245 expressly excludes from application to home growers.  To follow plaintiff’s argument, the Legislature has excluded home grows from license and enforcement by the OLCC; but has reinstated such licensing enforcement to the Department of Agriculture.

(OLCC does not regulate home beer brewing, winemaking, or liquor distillation either.  These activities are not regulated until the household has 200 gallons or more of alcoholic beverages on their property; then is regulated by the OLCC as a business.  We are puzzled by the Court’s insistence that small quantities of homegrown and homemade cannabis products not for sale must be regulated by local governments or a state agency.  But the state does regulate home growers, by limiting the number of plants, the amounts of various cannabis products on hand, and the places it may be grown: out of sight of public places.  It uses local police and prosecutors to enforce these and OLCC cannabis rules.)

The definition of nursery stock is set forth in ORS 571.005(5) as follows:

“Nursery stock includes all botanically classified plants or any part thereof, such as floral stock, herbaceous plants, bulbs, buds, corms, roots, scions, grafts, cuttings, fruit pits, seeds of fruits, forest and ornamental trees and shrubs, berry plants, and all trees, shrubs and vines and plants collected in the wild that are grown or kept for propagation or sale.” (Emphasis added)
The question becomes, does the final modifier: “...that are grown or kept for propagation or sale” apply to all nursery stock, or just to: “...all trees, shrubs and vines plants collected in the wild...” (sic-"vines and plants")

This Court believes that this modifying phrase must apply to all nursery stock because to read the statute otherwise would mean that virtually all botanically classified plants in Oregon would be nursery stock, and by definition an agricultural pursuit, to be regulated by the State Department of Agriculture.  That is so because a grower of nursery stock is defined by ORS 471.005(4) (sic—571.015(4)), as: “Any person who grows nursery stock.”  That could lead to the unsettling scenario wherein a “nursery cop” might knock on this Court’s front door and demand to inspect the random madrone and oak trees; poison oak and blackberry bushes in my overgrown backyard, because I am a grower of nursery stock.

Clearly, citizens who have control over overgrown backyards are not engaged in an agricultural pursuit such as mentioned in ORS 571.015.  Therefore, this Court believes that the modifier: “...that are grown for propagation and (sic--or) sale”, applies to all nursery stock, and therefore excludes four home grown marijuana plants.

(Four home grown marijuana (cannabis) plants are quite likely to be grown for propagation as well as use, in that cuttings can legally be taken and propagated, as well as propagated by seed.  The latter would be flower seed, not nursery stock, following the exceptions to the above definition, quoted below.  Home growers may grow seed and/or make their own clones (starts from cuttings).  Therefore, they are not excluded from the definition of nursery stock under the Court’s understanding of the definition.  Any cannabis plant is either from flower seed or nursery stock, depending on the method of propagation.)

The Court, in declaring, “This Court believes that this modifying phrase must apply to all nursery stock because to read the statute otherwise would mean that virtually all botanically classified plants in Oregon would be nursery stock,” ignores five major classes of plants excluded from nursery stock in the latter part of its definition in ORS 571.005(5):

“…‘Nursery stock’ does not include:
            (a) Field and forage crops.
            (b) The seeds of grasses, cereal grains, vegetable crops and flowers
            (c) The bulbs and tubers of vegetable crops.
            (d) Any vegetable or fruit used for food or feed.
            (e) Cut flowers, unless stems or other portions thereof are intended for              propagation.” (Emphasis added)

The State of Oregon has an interest in regulating commerce in every botanically classified plant in Oregon, wild or domestic, as can be seen by the extensiveness of its agricultural regulations, which are enforced only against businesses.  

That doesn't mean that the ORS 633.738(2) doesn't apply to seed crops and their products grown non-commercially, because their competition keeps prices for all seeds, plants, and their products down.  The state has an interest in plants grown in yards, and keeping them free from regulation beyond weed codes, which are within the proper province of city nuisance codes.  But cannabis is not a weed in Oregon anymore; it is a crop protected by ORS 633.738(2), in a home garden, if not on a farm.)

In summary, home grows are not included in the pre-emptive effect of ORS 633.738(2), because they are covered by the “Seed Bill”.  It is clear that the Legislature considers such grows as de minimus; not tax generating; not an agricultural pursuit (as mentioned in ORS 571.015); not grown for a commercial purpose (as mentioned in ORS 475B.015(8)); not grown for propagation or sale (as mentioned in ORS 571.005(5)); and therefore not included in the “Seed Bill”.

(It is only clear that the Legislature considers home grows of 4 plants to be de minimus, and therefore not subject to regulation by either the state or local governments as long as one stays within the homegrown limits.  The Legislature is apparently more interested in the prosperity of its citizens and killing the black market in cannabis than tax revenue from cannabis, and so allows otherwise unregulated homegrown cannabis.  Homegrown is grown for propagation as well as use; is either flower seed or nursery seed in the Seed Bill, depending on the method of propagation; and therefore is protected by the Seed Bill from local regulations due to the lack of state permission to regulate it.)

The City’s motion for summary judgment is granted; and the plaintiff’s motion for summary judgment is denied.  Mr. Mitton should draw up a consistent order.

Very truly yours,

Pat Wolke

Circuit Court Judge