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.
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
