Marijuana is flower and nursery seed

            

A marijuana seedling grown from "flower seed"

            In order to rule that homegrown marijuana is not protected by the Seed Bill, SB 863 (2013), Judge Wolke had to show that marijuana is not any of the seed crops listed in it.  We said that it fits in the categories of flower seed and nursery seed; the City and Judge Wolke said that it does not.

          The City’s attorney perhaps led Judge Wolke astray when he said at the hearing that the definition of flower seed was a “three-part test” and it did not fit all three parts.  Indeed, we were so taken aback by that argument that we did not even argue it, but moved on to nursery seed.  So in his ruling, Judge Wolke dismissed flower seed with this: 

          “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 seed.

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

But this is not a three-part test and Wolke does not say that it is; it has “or” between the last two parts, not “and.” Then comes the “and:” “and commonly sold in this state under the name of flower seed or wildflower seed.”

Marijuana is most certainly grown for its flowers, the most valuable part of the plant, with the most medicinal/recreational value.  “Blooms” in this definition is not modified by “ornamental” as “leaves” or “parts” are.  Petals are not necessary to the common definition of “bloom,” which is synonymous with “flower.”  And most flower and wildflower seed in this state are sold under their common names, not generic terms.

Perhaps Judge Wolke was misled by the term “buds,” commonly used to describe the flowers of marijuana because they have no petals and are packed tightly together the way immature flowers of broccoli and cauliflower are when harvested for vegetable use.  But saleable marijuana is mature flowers, even seeded in some cases. 

A big, fat clone (rooted cutting), newly planted.  I prefer smaller plants for best growth.

Most of Judge Wolke’s ruling is dedicated to showing that homegrown marijuana, in particular, is not “nursery seed.”  He starts right off admitting that the legislature defined marijuana as a “propagent” of nursery stock in medical marijuana regulations, but refuses to admit that homegrown is as well, though we are buying the same for our home gardens.

He starts with the legislative intent of the Seed Bill, which says that seed crops are of “substantial economic benefit” to the state and so the state seeks to protect those “industries” by reserving regulation of them to itself.  He plays down the economic benefit to homegrowers and does not recognize the benefit of homegrown production to the whole marijuana industry, other markets, or the legislature’s intent to suppress the black market, as homegrown would keep the price down.  Allowing local regulation of homegrown would work against all those benefits.

But his beliefs about the impropriety of excluding homegrown marijuana from most state and all local regulation (as is the case with all homegrown crops, except that the state actually regulates homegrown marijuana) is moot if it fits the actual definitions of either flower seed or nursery seed, so he tackles the definition of nursery stock:

“’Nursery stock includes all botanically classified plants or any part thereof, such as floral stock, herbaceous plants, bulbs, buds, corms, culms, 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 grow or kept for propagation or sale’ apply to all nursery stock or just to ‘...all trees, shrubs and vines plants collected in the wild...’”

          Judge Wolke immediately misquoted what he had just quoted, leaving out the “and” between “vines” and “plants.”  It is a very important “and,” as it separates “plants collected in the wild” from everything before it.  The final modifier, “that are grown or kept for propagation or sale” applies to “plants collected in the wild,” not to “all nursery stock” or non-wild “trees, shrubs and vines.”

         But he hangs his argument on that false question, and declares that the modifier must apply to all nursery stock, as otherwise, "virtually all botanically classified plants in Oregon would be nursery stock... to be regulated by the State Department of Agriculture,” raising the absurdity of a “nursery cop” knocking on his door because he is raising trees, vines, and shrubs in his yard.  Actually, the definition of nursery stock is followed by a list of major exceptions to it, but the Department of Agriculture does regulate most, if not all, plants grown commercially under other sections.  They don’t regulate home gardens; neither does the OLCC.

          Homegrowers can now legally propagate their own marijuana cuttings and are likely to as they have for decades, so homegrown marijuana would fit his faulty interpretation of the definition of nursery stock.  Regardless, it is obvious that homegrown marijuana is either flower seed or nursery seed, depending on whether it is propagated by seed or cuttings, and thus is protected by the Seed Bill from local regulations.  Therefore, Grants Pass Municipal Code 5.72.030, “Homegrown and Medical Marijuana,” is void in regard to homegrown marijuana. 

Medical growers will have to make their own case that the regulation in this code is not reasonable, but that is not difficult, with a definition of “indoors” that does not fit a house or any structure with windows and vague “signs of cultivation” that mostly have nothing to do with growing marijuana.  See “We are all living outdoors in Grants Pass.”

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html.

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html.
Read the Seed Bill at http://gardengrantspass.blogspot.com/2015/12/senate-bill-863-2013-is-two-statutes.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

The Core of Judge Wolke’s Ruling

          The core of Judge Wolke’s argument in ruling against us seems to be that he cannot believe that the state left homegrown cannabis unregulated by Oregon Liquor Control Commission (OLCC) and instead would have it regulated by the Department Of Agriculture, with no local regulation allowed.  But homegrown is not regulated by the Department of Agriculture; it is protected by it, through ORS 633.738, the Seed Bill, as with any other seed crop, like tomatoes or lettuce. 

Under Measure 91 and unchanged by the legislature, the homegrown exception to the OLCC licensing rules is regulated by the police, the DA, and the OLCC to the extent that, if one has too much cannabis or cannabis products to fall within the homegrown exception from OLCC regulation, one is subject to OLCC’s licensing regulations, starting with one’s lack of a license and the penalty for violating the rules by not having one.

This is exactly the same situation as with the other product that the Oregon Liquor Control Commission regulates, alcohol.  OLCC is a licensing and regulating agency for businesses; it does not regulate home brewing, winemaking, or liquor distilling, as long as a household stays within the 200 gallon household possession limit.  Nor does it permit local regulation of home production of alcohol.  Why should the state allow either for cannabis?

The state has good reason not to.  Judge Wolke dismisses the benefit that people get out of growing their own cannabis outdoors as a “slight” savings of money, offset by a drop in tax revenue, and puts it up against possible loss of property value for neighbours.  But he fails to see why the homegrown exception was allowed and even expanded by the legislature: because its competition keeps the price of cannabis and its products in the stores down, and thereby discourages the black market, which requires a restricted supply creating higher prices.  Homegrown cannabis thus benefits every consumer of cannabis.  Lower prices for cannabis and not having to buy it in stores also benefits producers and sellers of other consumer products because people aren’t spending as much money on it.  It even benefits legal sellers of cannabis, by making illegal selling not worth the risk.

But Judge Wolke’s reluctance to accept the state’s ban on local regulation of homegrown cannabis does not matter if it fits within the definition of seed crops in the Seed Bill that protects it, so he tries to define it as other than flower seed or nursery seed.  In our next article, we will refute his attempts to do so.

March 12, 2016 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  
Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Judge Wolke ruled; we will appeal

  

          Judge Wolke ruled against us, in favor of the City of Grants Pass.  We will appeal. 

          This plaintiff does not bring suit to go only halfway.  We knew from the start than any local judge is likely to find a way to rule for the city, having seen it happen too many times in the past.  

It is frustrating to see someone sue the city or the county and then drop it when a local judge obviously rules against state law.  This happened in the case of ex-Mayor Murphy appointing a quorum of our City Council after we recalled 5 of them, using a law that allowed him to appoint a single election official in order to call a special election if that official’s seat is vacant.  The previous Mayor Holzinger sued, and then pointed out Judge Baker’s conflict of interest after she ruled against him.  She was upheld by a Jackson County judge, and he dropped the case.

The interesting thing in that case was that she did not use the law Murphy cited for his authority; she just said that “exigent circumstances” allowed it, because we could not hold a special election for 6 months.  But another, authorized remedy lay within section 2 of that law.  It allowed the Board of County Commissioners to appoint a quorum if there were no councillors.  She could have ruled against Mayor Murphy, suggesting the remaining councilors resign and allow the Commissioners to appoint a quorum.

But Holzinger’s attorney did not see that remedy nor understand the reason for the law that Murphy was using, which appeared to be the possibility of a natural disaster killing a quorum of a City Council.  So Judge Baker did not have that remedy presented to her and did not have to consider it.  That was the same attorney I fired in my case before I hired a truly competent attorney out of Portland, who has won at least one appeal, Andrew DeWeese.

Mr. DeWeese works without a retainer, so I didn’t have to borrow more money to get him working on my case.  On February 22^nd, I paid him the $1925.00 raised at that point on GoFundMe and in person; I still owe him $2000 before the appeal.  We both believe that we will win on appeal and get those fees paid by the city, in which case the net funds over what I previously borrowed will be held for future homegrown defense. 

But we might not win, and neither of us wants me to be paying him and the city for their costs for the rest of my life, so please donate at GoFundMe.com/HomegrownDefense, or contact me below to donate by mail or in person.

March 12, 2016 protest leaflet.  Published on GardenGrantsPass.blogspot.com. 

Read the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Read the ruling at http://gardengrantspass.blogspot.com/2016/03/judge-wolkes-ruling-in-my-lawsuit.html

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Judge Wolke’s ruling in my lawsuit

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.

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.).

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)

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.

           

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.

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.

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.

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”.

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

We are all living “outdoors” in Grants Pass

We are all living “outdoors” in Grants Pass, according to the definition of “indoors” in the Homegrown and Medical Marijuana nuisance code Chapter 5.72.  It disallows windows, without even saying the word:

“Indoors/Indoor Structure” means within a fully enclosed and secure structure that complies with the Oregon Residential Specialty Code (ORSC) or Oregon Structural Specialty Code (OSSC) as adopted by the City of Grants Pass, which has a complete roof enclosure supported by connecting walls extending from the foundation/slab to the roof.  The structure must be secure against unauthorized entry, accessible only through one or more lockable doors, and constructed of solid materials that cannot easily be broken through, such as 2X4 or larger wood studs covered with 3/8” or thicker weather-resistant siding or equivalent materials.  Plastic sheeting, regardless of gauge, or similar products, do not satisfy this requirement.”

This definition makes the “meat” of the ordinance deceptive, as people rarely read definitions, which are usually fairly obvious and at least fairly close to common usage.  I know of no residences that have no windows.  And yet, when the Daily Courier told us about this ordinance, it said only that greenhouses are not allowed.  And one of our City Councilors said that we can grow a plant in the corner of our dining room.

But even if we build the special grow house contemplated in this definition, which requires permits, fees, and electricians like our mayor to safely set up all the lights, fans, and filters needed to grow indoors and keep all odor inside, we run afoul of the forbidden signs of cultivation:

5.72.030  Homegrown and Medical Marijuana Subject to Regulation:

A.   Marijuana cultivators shall be allowed to cultivate, produce, or process homegrown marijuana and medical marijuana subject to the following conditions:

1.   Cultivation, production, processing or storage of marijuana must be in full compliance with all applicable provisions of OMMA and Measure 91.

2.   All cultivation, curing, drying, storage, production, or processing of marijuana shall be conducted indoors….

3.  Cultivation, production, processing or storage of marijuana shall not be perceptible from the exterior of the household, housing unit, and/or indoor structure including but not limited to:

a. Common visual observation, which would prohibit any form of signage;”

One needs only to read or hear about the definition above to realize by “common visual observation” that a new, solidly built, windowless building in a residential yard is likely a grow house, and is thus a sign of cultivation for thieves, who often pay more attention to the law than people who would obey it.  Far from keeping your pot safe from thieves, it opens you to home-invasion robbery year-round to get the keys to the grow house where all the pot must be grown, processed and stored, rather than simply sneaking into your back yard to steal some buds just before harvest. 

It’s like building a giant, wooden safe in your yard and daring thieves to break in.  Faced with such a rich prize, some might choose the easy, quiet way of making you hand over the key.  If you report pot theft, the police will cite you for letting your cultivation show.

But this provision is just the beginning of the mischief in this ordinance.  It continues:

“b. Odors, smells, fragrances, or other olfactory stimulus;

c. Light pollution, glare or brightness that disturbs the repose of another;

d. Undue vehicular or foot traffic, including excess parking within a residential zone; and

e. Excessive noise that disturbs the repose of another in violation of GPMC 5.12.110.”

Police would come into your yard to verify odor or lack thereof coming from your house, requiring a search warrant anytime a neighbor complains about security lights, which can be disturbing to a neighbor’s repose; “undue” traffic and “excess” parking; or excessive noise, like loud music or laughter, or a barking dog. 

It appears that justifying search warrants is the main purpose of this ordinance.  Any of these ordinary annoyances can be used to check to see if you are growing in your house, after checking your backyard to see if pot is being grown in the light of the sun.  Even so, they have to check to see if it is being processed or stored in a place secure enough to be considered “indoors.”  While doing so, they must check to see if you are obeying the possession limits in the homegrown exception to Measure 91’s licensing rules or medical marijuana rules.  They’ll tear your house apart to find your pot and pot products and weigh them.

Fortunately, our legislature protected homegrowers from this ridiculous ordinance before we ever passed Measure 91, by reserving the regulation of seed crops and their products to the state, when they passed Senate Bill 863 in 2013, which forbids local government or their voters from enacting or enforcing local laws that inhibit or prevent the production of seed crops.  SB 863 was codified as ORS 633.733, its legislative intent, and ORS 633.738, the “meat” of the Seed Bill. 

Answering my lawsuit against the city’s ordinance, the city’s lawyers have said that the Seed Bill is only about GMOs, since it was inspired by Jackson County’s GMO ban, which was circulating for the ballot at the time.  They ignore its legislative intent, spelled out in ORS 633.733.  That’s because they are unable to show any permission in state law to regulate unlicensed homegrown marijuana.

Section 89 of House Bill 3400 (2015) amended the Oregon Medical Marijuana Act to allow local governments to “reasonably” regulate medical marijuana in particular ways.  But the above provisions are not reasonable, starting with their definition of “indoors,” and this code has no relation to the permissions given in HB 3400.

January 8, 2016 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Support the lawsuit at www.GoFundMe.com/HomegrownDefense 

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Senate Bill 863 (2013) is Two Statutes

A few months ago, before filing my lawsuit, an attorney gave me what I thought was the whole of Senate Bill 863, the Seed Bill, in ORS 633.738.  The City’s attorney, in answer to my complaint, is saying that the Seed Bill is only about GMOs, and doesn’t apply to marijuana.  But I found that there is another statute just before it, ORS 633.733, which is part of the same bill, and states their real intent: to stop local governments from interfering in the production and use of seed crops:

 633.733 Legislative findings regarding seed regulation. (1) As used in this section, “nursery seed” means any propagant of nursery stock as defined in ORS 571.005.

      (2) 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 and products of agricultural seed, flower seed, nursery seed and vegetable seed to the state; 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. [2013 s.s.1 c.4 §2]

 633.738 Prohibition of local laws to inhibit or prevent production or use of seeds or products of seeds. (1) As used in this section:

      (a) “Local government” has the meaning given that term in ORS 174.116.

      (b) “Nursery seed” means any propagant of nursery stock as defined in ORS 571.005.

      (2) Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area or quarantine, to 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. The prohibition imposed by this subsection includes, but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.

      (3) Subsection (2) of this section does not prohibit a local government from enacting or enforcing a local law or measure to 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 on property owned by the local government. [2013 s.s.1 c.4 §3]

       Note: Section 4, chapter 4, Oregon Laws 2013 (first special session), provides:

      Sec. 4. Section 3 of this 2013 special session Act [633.738] does not apply to any local measure that was:

      (1) Proposed by initiative petition and, on or before January 31, 2013, qualified for placement on the ballot in a county; and

      (2) Approved by the electors of the county at an election held on May 20, 2014. [2013 s.s.1 c.4 §4]

December 5, 2015 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html

Support the lawsuit at www.GoFundMe.com/HomegrownDefense 

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

“No” is Not a Mandate

The legislature erred in allowing local governments in counties where the “no” vote on Measure 91 was more than 55% to ban licensed cannabusinesses and make those who disagree refer their ban to the ballot.  The writers of Measure 91 erred in requiring that cannabis and its products must be kept out of sight of public places.  The writers of Measure 91 and the legislature erred in allowing local governments to regulate cannabis.  In doing so, each led local governments astray and caused them to err in writing local ordinances that are causing otherwise unnecessary litigation and alienating their voters.

Only a “yes” vote is a mandate for a specific proposal or at least the general idea behind it.  To vote against a measure does not always mean that one opposes the general idea, but only that one does not like that particular proposal. 

After campaigning for previous pot measures, I campaigned and voted against Measure 91 because I saw a lot of mischief that could be caused by police who are against legalization, in the tight personal possession limits and draconian penalties for those who violate the licensing provisions one is subject to for having too much product in one’s home.  I thought the tax was too high, the possession limits were too low, and that the measure seemed like it was written by corporations who wanted to take over our cannabis business. 

There were many people who opposed any taxes and regulation on their herb, in this and previous measures that were a lot more permissive.  Others profit from the marijuana black market and could see an end coming to their happy, unregulated, illicit business.  I was accused of being a dealer just because I opposed Measure 91.

But because the legislature took 55% county “no” votes for a local mandate against licensed production and selling, local governments took that attitude and ran with it, proclaiming that they had a mandate to ban cannabusinesses even if they didn’t have the full 55% against the measure, and even to ban homegrown, which Measure 91 and the legislature protected against local regulation.

The provision in Measure 91 that cannabis plants and its products must be kept out of sight of public places gave some local governments the idea that there is something inherently scandalous or dangerous in other people being able to see or even smell it.  That was another reason that people like me voted against it.  What’s the point of making it legal if one has to hide it?

Likewise, the OLCC, whose liquor business competes with cannabis, decided that, although people are not allowed to drink alcohol in public but are allowed to drink it in bars, the same could not be allowed for cannabis, declaring that businesses devote to cannabis are public places that one cannot consume the product in.  We can drink in bars and even in parks where a bar is set up, and smoke cigars in cigar shops, but we can consume cannabis only in private homes.

Measure 91 was supposed to regulate marijuana like liquor, which is regulated only by the state.  So the writers and the legislature both erred when they allowed any local regulation of cannabis growers, producers and sellers, particularly because most local officials are steeped in anti-pot rhetoric which had not yet been an issue in local campaigns.  After Measure 91 passed, the House in particular took notice of the will of the people and worked to make it work for the people who passed it.  The Senate was less responsive to the will of the majority, and more responsive so to cities and counties who wanted to control and tax it themselves. 

Many cities and some counties started before the election to pass taxes and regulations on cannabis before Measure 91 passed, thinking that they could get their taxes and regulations grandfathered into the law.  But governments cannot tax or regulate an illegal substance, and Measure 91 forbids local taxes in one provision, while another revoked all conflicting local ordinances.  Enacting such ordinances was unlawful, ignorant behavior on their part, and they should not have been rewarded with permission to reasonably regulate it locally, having shown that they would do so unreasonably. 

What some cities and counties have passed since shows how unreasonable and unlawful they can be, such as Grants Pass and Central Point passing “Homegrown and Recreational Marijuana,” which presumes to regulate homegrown, which is not subject to regulation beyond the exemptions written into Measure 91, and allows growing cannabis only “indoors,” which they define as a building without windows.

But local governments who took a majority “no” vote as a mandate against cannabis erred most of all, forgetting that there are other measures that they need its “yes” voters to pass.  Many of the anti-pot “no” voters on Measure 91 have also been dependable “no” votes on any new taxes but pot taxes and other taxes they would not pay. 

Almost nobody votes for more money for law enforcement if they think that they might be targeted by it.  Cannabis consumers have mostly voted against general law enforcement levies every time, a quiet but large minority, maybe even a majority, of “no” voters, of which anti-government fanatics are only the noisy, visible minority.  But they voted “yes” on funding Animal Control in Josephine County, which does not threaten them or cost much.  Continuing the war on marijuana locally won’t get them to vote “yes” on new taxes for local law enforcement.  Only a government that doesn’t make war on them will get their trust and their votes.

November 18, 2015 protest leaflet.  Published on GardenGrantsPass.blogspot.com.  Sign the petition at https://www.change.org/p/grants-pass-city-manager-aaron-cubic-leave-pot-growers-alone-target-litter-and-weeds.

Read the ordinance at http://gardengrantspass.blogspot.com/2015/09/chapter-572-homegrown-and-medical.html 

Support the lawsuit at http://www.gofundme.com/HomegrownDefense 

Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com

Central Point's Chapter 8.45 HOMEGROWN AND MEDICAL MARIJUANA

Sections:

8.45.010    Intent and purpose.

8.45.020    Definitions.

8.45.030    Homegrown and medical marijuana subject to regulation.

8.45.040    Public nuisance remedy.

8.45.050    Violation.

8.45.060    Conflict of laws.

8.45.070    Severability.

8.45.010 Intent and purpose.

The city council of the city of Central Point recognizes that citizens of the state of Oregon may engage in both recreational and medicinal use of marijuana in accordance with state law. However, the city council also recognizes that cultivating, drying, production, processing, keeping or storage of marijuana, without appropriate safeguards in place, can have a detrimental effect upon public safety and neighboring citizens. The city council finds and declares that the health, safety and welfare of its citizens are promoted by requiring marijuana cultivators engaged in recreational or medicinal cultivation, drying, production, processing, keeping or storage of marijuana to ensure that said marijuana is not accessible, visible or odor causing to other persons or property, or otherwise illegal under Oregon State law. (Ord. 2007 §1(part), 2015).

8.45.020 Definitions.

Words and phrases used in Sections 8.45.010 to 8.45.070 shall have the following meanings ascribed to them:

“Homegrown marijuana” means any marijuana cultivated, dried, produced, processed, kept or stored for personal recreational use by a person twenty-one years of age or older in accordance with state law.

“Homegrown marijuana grow site” means a location in which a person twenty-one years of age and older cultivates, dries, produces, processes, keeps or stores homegrown recreational marijuana in accordance with state law.

“Household” means a housing unit, and includes any indoor structure or accessory dwelling unit in or around the housing unit at which the occupants of the housing unit are cultivating, drying, producing, processing, keeping, or storing homegrown marijuana.

“Housing unit” means a house; a mobile home; a manufactured home; and/or a group of rooms, or a single room that is occupied as separate living quarters, in which the occupants live and eat separately from any other persons in the building and which have direct access from the outside of the building or through a common hall including an individual residential unit in an apartment, duplex, townhome, condominium, or senior living facility.

“Indoors/indoor structure” means within a fully enclosed and secure structure that complies with the Oregon Residential Specialty Code (ORSC) or Oregon Structural Specialty Code (OSSC), as adopted by the city of Central Point, which has a complete roof enclosure supported by connecting walls extending from the foundation/slab to the roof. The structure must be secure against unauthorized entry, accessible only through one or more lockable doors, and constructed of solid materials that cannot easily be broken through, such as two-inch-by-four-inch or larger wood studs covered with three-eighth-inch or thicker weather-resistant siding or equivalent materials. Plastic sheeting, regardless of gauge, or similar products do not satisfy this requirement.

“Marijuana” means all parts of the plant Cannabis family Moraceae, including, but not limited to, its dried leaves and flowers, and any marijuana products derived therefrom. The term includes any and all homegrown marijuana, medical marijuana and marijuana products as defined in this section.

“Marijuana cultivator” means a medical marijuana grower, recreational marijuana homegrower, patient, and any landlord or property owner allowing marijuana to be cultivated, dried, produced, processed, kept or stored at a premises.

“Marijuana products” means products that contain marijuana or marijuana extracts and are intended for human consumption.

“Medical marijuana” means the marijuana cultivated, dried, produced, processed, kept or stored for medicinal use in accordance with the OMMA.

“Medical marijuana grow site” means a location registered pursuant to ORS 475.304 where medical marijuana is produced for use by a patient.

“Medical marijuana grower” means any person engaged in the cultivation, drying, production, processing, keeping or storage of medical marijuana in accordance with state law, and includes, but is not limited to, the meaning set out at OAR 333-008-0010(11) and (21).

“Patient” means a person who has been diagnosed by an attending physician with a debilitating medical condition and for whom the use of medical marijuana may mitigate the symptoms or effects of the person’s debilitating medical condition, and who has been issued a registry identification card by the Oregon Health Authority.

“Premises” means a household, medical marijuana grow site, homegrown marijuana grow site, and/or primary residence of a patient.

“Property” means any home, business or public right-of-way.

“Recreational marijuana homegrower” means a person twenty-one years of age and older engaged in the cultivation, drying, production, processing, keeping or storage of homegrown marijuana in accordance with state law. (Ord. 2007 §1(part), 2015).

8.45.030 Homegrown and medical marijuana subject to regulation.

A. Marijuana cultivators shall be allowed to cultivate, produce, process and/or possess homegrown marijuana and medical marijuana subject to the following conditions:

1. Such cultivation, production, processing, or possession of marijuana must be in full compliance with all applicable provisions of OMMA and M. 91;

2. Such cultivation, production, processing or possession of marijuana must be conducted indoors;

3. The cultivation, production, processing, or possession of such marijuana must not be perceptible from the exterior of the household, housing unit, and/or indoor structure including but not limited to:

a. Common visual observation, which would prohibit any form of signage;

b. Unusual odors, smells, fragrances, or other olfactory stimulus;

c. Light pollution, glare, or brightness that disturbs the repose of another;

d. Undue vehicular or foot traffic, including excess parking within the residential zone; and

e. Excessive noise that disturbs the repose of another in violation of Chapter 8.04;

4. Such cultivation, production, processing, or possession of marijuana plants shall be within a secure, defined area;

5. Such cultivation, production, processing or possession of marijuana shall meet the requirements of all adopted city building and life/safety codes;

6. Such cultivation, production, processing or possession of marijuana shall meet the requirements of all adopted water and sewer regulations promulgated by the city or any special district having jurisdiction;

7. Disposal of any excess or unused marijuana, marijuana products, or other byproducts thereof shall meet any and all local and state requirements for disposal, and shall be disposed of in a secure fashion so as to avoid access by children, visitors, casual passersby, vandals or anyone not licensed or authorized to possess medical or homegrown marijuana;

8. Such cultivation, production, processing or possession of marijuana in a commercial or industrial structure located in a commercial or industrial zone shall meet the following requirements:

a. The use must be conducted indoors;

b. The premises must not be vacant and there shall be an actual daily presence, use and occupancy of the premises by an owner, tenant, employee or agent thereof;

9. Such cultivation, production, processing or possession of marijuana in residential zones or in a housing unit shall meet the following requirements:

a. Such cultivation, production, processing, or possession of marijuana shall only be conducted within the primary residence of the marijuana cultivator;

b. Such marijuana plants shall not be cultivated, processed, produced or possessed in the common areas of a multi-family or attached residential development such as townhomes and condominiums;

c. For purposes of this chapter, “primary residence” means the place that a person, by custom and practice, makes his or her principle domicile and address and to which the person intends to return, following any temporary absence, such as vacation. Residence is evidenced by actual daily physical presence, use, and occupancy of the primary residence and the use of the residential address for domestic purposes, such as, but not limited to, slumber, preparation of and partaking of meals, regular mail delivery, vehicle and voter registration, or credit, water, and utility billing. A person shall have only one primary residence, which may include an indoor structure or accessory dwelling unit; provided, that the indoor structure or accessory dwelling unit is located on the same tax lot as the primary residence;

10. For purposes of this chapter, “a secure area” means an area within the primary residence or indoor structure accessible only to the patient or primary caregiver, or marijuana cultivator. Secure premises shall be locked or partitioned off to prevent access by children, visitors, casual passersby, vandals, or anyone not licensed and authorized to possess medical or homegrown marijuana.

B. Licensed commercial grows, as defined in M. 91, are strictly prohibited in all residential zones. (Ord. 2007 §1(part), 2015).

8.45.040 Public nuisance remedy.

A. Any household, housing unit, premises, property, building, structure or place of any kind where medical or homegrown marijuana is grown, processed, manufactured, bartered, distributed or given away in violation of state law or this chapter, or any place where medical or homegrown marijuana is kept or possessed for sale, barter, distribution or gift in violation of state law or this chapter, is a public nuisance per Chapter 8.04.

B. In addition to the foregoing, two or more violations in a thirty-day period may be deemed a chronic nuisance property subject to the provisions of Chapter 8.02.

C. In addition to any remedies provided in Chapters 8.02 and 8.04, the city may institute an action in municipal or circuit court in the name of the city to abate, and to temporarily and permanently enjoin, such nuisance. The court has the right to make temporary and final orders as in other injunction proceedings. The city shall not be required to give bond in such an action. (Ord. 2007 §1(part), 2015).

8.45.050 Violation.

In addition to treatment as a nuisance, all violations of this chapter are subject to punishment under the general penalty provisions in Chapter 1.16. Each day in which a violation continues shall constitute a separate violation. (Ord. 2007 §1(part), 2015).

8.45.060 Conflict of laws.

In the event of any conflict between the provisions of this chapter and the provisions of any other applicable state or local law, the more restrictive provision shall control. (Ord. 2007 §1(part), 2015).

8.45.070 Severability.

The sections, subsections, paragraphs and clauses of this chapter are severable. The invalidity of one section, subsection, paragraph or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. (Ord. 2007 §1(part), 2015).