Breaking 4 laws with 1 code

8 weeks old, from seed that sprouted July 9th

Councilors, Mayor and Manager:

          You each took an oath to obey the laws of the State of Oregon.  You have managed to break 4 Oregon laws in passing one code and failing to stay its enforcement when you were told that it is illegal.  This may be a new record in breaking state laws with a local code.  

Don’t tell us that you were obeying federal law in banning outdoor marijuana, because federal law completely bans it, and you are allowing indoor growing under lights.  You have allowed outdoor medical cultivation for the last 17 years without any interference until now.  It’s not your job to enforce federal law.  The feds are not enforcing it because the Supreme Court told them they can’t, back in the Bush era.

          The first of three Oregon laws, Measure 91, you broke twice, the first time in passing a 5% sales tax on marijuana in clear violation of  M 91’s ban on local pot taxes and long before the legislature allowed you only 3% sales tax in House Bill 3400, revenue which you plan to spurn by banning sales in the city.

You broke Measure 91 again when you banned all outdoor growing of marijuana without authority from the state.  You need state permission because our legislature had already banned local governments and voters from inhibiting or preventing the production, sales and use of agricultural items in Senate Bill 863 in 2013.   Carl Wilson wrote you an email about that before you began to pass it.  Some of you had read it.

SB 863 applies to marijuana and other crops, except where the legislature allows local regulation and/or taxes.  HB 3400 allows reasonable restrictions on time, place and manner of growing commercial and medical marijuana, separately amending licensing rules in Measure 91 and the Oregon Medical Marijuana Act.  Forcing everyone to grow indoors under the code’s definition of “indoors” is not reasonable, so you broke HB 3400, Measure 91, and the Oregon Medical Marijuana Act.

But we don’t need a license for four homegrown plants, so SB 863 protects our right to be free of local restrictions on homegrown marijuana as long as we stay within the state’s rules.

You have managed to break 4 Oregon laws with your code.  You will be hearing from my attorney.

December 2nd update: I had to fire my first attorney and have retained new counsel, Andrew Deweese of Portland.  I am raising funds to pay him at www.GoFundMe.com/HomegrownDefense.  A trial date is set for June; hearing on the City’s motion for summary judgment is set for February 8^th.

                   

September 2nd speech and protest issue, published at GardenGrantsPass.blogspot.com, revised 12/12/15

Sign the petition at https://t.co/l7oJgGKeGc

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

Rogue Governments

The NO MORE DRUG WAR protest returns to Grants Pass

The spirit of the Rogue River Indians haunts this valley, in their name on the Rogue River; the Rogue Valley; Valley of the Rogue State Park; and numerous business names.  French-Canadian fur buyers called them “coquins,” which translates to “rogues.”  They also named La Riviere aux Coquins, later called the Rogue River, as were the various related tribes that lived along it.  Some tribes were killed off; others were put on reservations outside the Rogue River Valley, except for Indian Mary, whose father betrayed his people. 

People grow up here thinking that “rogue” is a good thing, though they know the meaning of the word.  But as the name of their home, they identify with it.  Our city councils seem to take a roguish pleasure in thumbing their noses at the state and people, especially poor people, and ignoring any law that they find inconvenient, even their own.

For instance, in Grants Pass we have longstanding property maintenance “nuisance” codes that the city council and manager find inconvenient to enforce, despite the provision in our charter that our city manager must enforce all city codes.  Noxious and nuisance weeds grow mostly unchecked and trash litters many properties, but it would be an expensive bother for big property owners to clean up their properties, so they don’t make them do it.  Some might have to sell their vacant lots rather than wait for the price that they think that they are worth, if they had to maintain them.  They target an occasional residential property when people complain enough, but refuse to enforce property maintenance codes generally.

And yet, the Council passed a new nuisance code targeting marijuana, banning it outdoors in all its forms including possession of dried product, and calling greenhouses outdoors, despite 4 state laws to the contrary: Measure 91; the Oregon Medical Marijuana Act; House Bill 3400, which modified both; and Senate Bill 863 (2013), which forbids local governments and voters from enacting or enforcing any local measure or ordinance that inhibits or prevents production, marketing, or distribution of agricultural products. 

People have called them Good Old Boys for taking care of their rich friends and oppressing the poor, but they are really rogues, taking care of people as roguish as they are, those who do not love their neighbors, only themselves and their friends.

                   

August 21, 2015 protest issue, published at GardenGrantsPass.blogspot.com

Follow @AnRycke on Twitter; GP Gardener on Facebook; see GPgardener.com for links to my blogs

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

Legislate in haste, repent at leisure

Honorable Mayor and Council,

            “Marry in haste, repent at leisure.”  The same could be said for legislating. 

It pays to give people time to think about a proposal, and inform you about its consequences.  It pays for you to take time to think on what they said and search out more information.  That’s why our county charter requires two readings of an ordinance, two weeks apart, with public comment at each, before the Board of County Commissioners votes on it.

            July 15^th, you passed an illegal ordinance banning marijuana outdoors with no public comment allowed, because you had voted for it two weeks before, after only one reading when you were tired and irritated with the people telling you not to do it.  On the 15^th, I wanted to tell you that Representative Carl Wilson had told you by email that it was illegal before the first reading and point out exactly why it was illegal, but I was not allowed to; your ears were stopped by your previous vote.  I will tell you at your next meeting; I’ll be talking about this as long as it takes to fix it.

            Sometime before I started attending City Council meetings, some Council lost the point of having a second reading of an ordinance.  They started your present routine of: vote to read; vote on the ordinance; immediately vote to read it again; and vote again if the vote for the second reading is unanimous, which it usually is.  Otherwise, the 2nd reading is held off until the next meeting.   And you are supposed to talk to no one about it in the meantime.  Really?

            What is the point of this ritual?  It’s just a rigmarole, which makes no sense and ticks people off.  It is an avoidance of information from the public, a rush to judgment, thinly disguised as procedure.  I’ve never seen the Board of County Commissioners reconsider an ordinance.  It is common with the City Council.

            Please reconsider your outdoor pot ban, which, your Recorder read in the second reading, includes possession.  I do not want to sue you over it.  I do want you to pass a city sales tax.  This ordinance and that tax campaign are not compatible. 

You can’t offend the poor, pot smokers, and shop owners and expect to keep your seats, much less pass a sales tax.  You can, however, reconsider and repent your illegal ordinance, and adopt the County’s procedure for passing ordinances.  A little repentance and reform can soothe a lot of hurt feelings.

P.S. Their unknowing prohibition of outdoor possession got an immediate response from one councilor.  She explained that it is too late to reconsider the ordinance; it cannot now be changed or repealed for 6 months.  I said that the Manager must stay enforcement of it; publicize it, so we need not fear to call the cops; and the Council must repeal it in 6 months.  I repeated this in an email to the Council, Mayor, and Staff, and gave them two weeks to do it or I will retain an attorney and sue.

                   

August 5^th speech and protest issue, published in GardenGrantsPass.blogspot.com

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

The ordinance was amended September 16, 2016, to remove any references to possession.  The rest of it is still quite illegal.

“GP nixes outdoor pot plants”? Let’s sue!

A pot plant, legally planted after July 1, 2015

The Grants Pass City Council banned outdoor growing of marijuana, even in a greenhouse, on July 15^th, in an emergency nuisance ordinance, after having been told by our state Rep. Carl Wilson, that it would violate Senate Bill 863 (2013), now ORS 633.738, which reserves the regulation of agricultural items to the state.  Let’s sue them.

SB 863 was passed in 2013 in response to the anti-GMO initiative being petitioned in Jackson County, but it applies to all seed-bearing farmed plants.  SB 863 became ORS 633.738 and is printed below.  It exempted only Jackson County’s GMO ban.  But it can be overridden where the state specifically allows it in other laws.

Attorney Paul Loney briefed the Oregon Sungrowers (OregonSungrown.org) on the implementation of Measure 91 and the changes to the Oregon Medical Marijuana program in House Bill 3400 (2015).  M 91 allows local governments to impose “reasonable time, place, and manner restrictions” on licensed recreational growers.  “Reasonable” is the operative word here.

HB 3400 also brought new Oregon Health Authority rules to medical growers, with a list of various limits on plant numbers, depending on how many patients a grower was supplying as of December 31, 2014; whether they are located in or out of a city; and whether patients stay with the grower.  None may grow more than 96 plants, and if they co-license with OLCC to grow recreational pot, they are still held to medical plant limits.  OHA rules allow only specific types of local “reasonable regulations” on medical growers and dispensaries.  Medical cardholders growing 12 plants or less at their own residences are free of inspections.

But the OLCC licensing rules do not apply to those who stay within the homegrown limits: 4 plants; 8 ounces of dried bud or leaf; 1 pound of edibles; and 72 ounces of liquid product, all kept out of sight of public places.  OHA limits apply only to medical cardholders.  SB 863 protects homegrowers from local restrictions.

Even if it is found to be reasonable to force commercial and medical growers to grow only indoors in the city, SB 863 does not allow any local restrictions on those not subject to licensing rules.

This homegrower wants to sue Grants Pass and request an injunction to stop enforcement of their illegal blanket ban on outdoor growing of pot.  I am raising money on GoFundMe.com to retain an attorney.  See the “Homegrown Defense Fund” at http://www.gofundme.com/zb38423u.

P.S.  I borrowed $5000 to get this lawsuit started.  I would do so if I was cited; it is better to sue.  It will not be added to the fund, but will be repaid if it is not used, and repaid from the city if it is.

 GoFundMe campaigns have no limit or end date.  The Homegrown Defense Fund will be held in a special account to be available if the city again threatens our homegrown rights.  In 5 years, it will become the Keep The Rogues Honest Fund, for general defense of poor people’s rights against Rogue government.  It will be used only for legal fees.

The Grants Pass ordinance has not been codified yet; it can be found in the July 15th meeting packet at  //www.grantspassoregon.gov/AgendaCenter/ViewFile/Agenda/07152015-1253

                   

July 2015 protest issue, published in GardenGrantsPass.blogspot.com

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

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 (sic?) 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]

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

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]

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

I suspect that Section 4 has a typo in referring to section 3 when it actually is supposed to apply to Section 2.  I found the same typo online at OregonLaws.org.

Whose law should we obey?

Honorable Councilors, Mayor and Manager:

Three City Councilors were on the KAJO talk show on July 7^{th .}  When they were confronted with a state law which would nullify a proposed ordinance, one asked whose law we should obey, state or federal?

          The state is the basic level of government, from which both federal government and local governments are derived.  When the colonies declared independence, they declared themselves “free and independent states.”  The Articles of Confederation bound them too loosely for some years, and then the Constitution was written to give the federal government specific, listed powers, with other powers reserved to the states and the people.  Its powers allow it to deal with foreign governments by treaty or war; regulate the military; coin money; regulate interstate commerce; judge disputes between the states; to levy particular taxes to do these and other listed powers; and by the 14^th amendment, to secure the rights of the people in the states.  Much of federal law is not authorized by the Constitution; it is tolerated by the states.

          The states control elections; we register to vote as citizens of our state of residence.  States license driving, marriage and many professions, including doctors.   The vast majority of the laws that we are subject to are state laws. 

          States formed the federal government; they also charter cities and counties.  That which is licensed or chartered by a government can be revoked thereby.  The feds cannot revoke your charter; the state can, in theory.

          The federal government has backed off enforcing its laws where they are contradicted by state law.  The Supreme Court stopped John Ashcroft from going after legal medical marijuana growers and sellers; the feds have since stopped prosecuting people following state marijuana law. 

          Where there is a conflict between state and federal law, therefore, you should obey the one with constitutional authority; they have separate realms of authority. 

          Where there is a conflict between city and state law, you should obey the state, the source of your authority to be a city, unless the state law conflicts with the state or federal constitution.  Then you should defend the rights of all your residents.      

July 2015 protest issue.

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

Marijuana isn’t a weed in Oregon

        

         Remember the anti-GMO ordinances that both Jackson and Josephine Counties passed?   Early in the process, our state legislature passed a bill, SB 863 (2013), which forbade local governments to enact or enforce any local measure or ordinance that would inhibit or prevent the production of agricultural items.  Jackson County voters were petitioning their ordinance for the ballot at the time, so it was exempted from the statute.  Josephine County, starting petitions after the law was passed, was not.

          Jackson County’s GMO ordinance was tested in court recently under the Freedom to Farm Act, and a judge upheld it, finding that there is no right to grow a crop that degrades your neighbor’s crop.  Hemp growers and their neighbors should take note.

          Josephine County’s anti-GMO measure has not been enforced nor challenged; it is of no effect, violating SB 863.

          NowGrants Pass City Council intends to ban outdoor growing of marijuana within thecity.  They voted for it once on July 1, with the second reading to be voted on July 15^th.  Representative Carl Wilson had sent them a letter by email, warning them that they would risk a lawsuit under SB 863 if they passed it.  They ignored that part of the letter, and focused on his warnings about the problems that widespread indoor growing would cause our electrical grid and waste water treatment plant, some finding reasons there to ban pot growing entirely in the city.

          Marijuana is not a weed in Oregon anymore.  It is an agricultural item, legally grown to be used, and has been since medical marijuana was passed.  It has been a legal item in commerce since the legislature authorized dispensaries. 

          Grants Pass has the authority to inhibit or prevent the growth of weeds under its nuisance codes.  It hasn’t had the authority to stop or slow the production of agricultural items since SB 863 was passed. 

But we in Josephine County can thank Jackson County for inspiring SB 863 in 2013.  A lawsuit and injunction will be needed to enforce it if the Council passes their outdoor pot growing ban on July 15^th. 

 Special July 2015 protest issue.

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

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

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 (sic) 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]

                   

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

I suspect that Section 4 has a typo in referring to section 3 when it actually is supposed to apply to Section 2.  I found the same typo online at OregonLaws.org.