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

Crown your Roses to beat Black Spot

Betty Boop, October 2014, after being crowned in the spring.  Note the black spot starting at the base.  This rose is nearly thornless on young parts and blooms all summer into late fall.

When roses are starting to break bud and grow leaves, it is time to crown them, to stop black spot fungus from taking them over and making them pretty flowers on an ugly bush.  The spots are on the stems, and they infect the leaves after they mature.  Removing all the stems, down to the crown, the hard knot of wood from which both roots and stems grow, takes all the fungus off the plant and stops black spot from showing up until fall.

2016 Betty Boop rose, ready to crown.  Note the purple new growth.  It never quite stopped growing this winter.  

         You do not want to crown them in late fall or in winter before bud break, or they won’t grow until months later, as they then feel only the temperature of the soil, and wait until the soil warms up, much later than the air does.  Once they begin to grow leaves, the plant is already growing and cannot stop; it will grow new stems very quickly, though they will bloom no sooner than if you did not cut them.

Betty Boop rose buds breaking red, ready to crown.  Notice the black spots starting.

Some roses bud green.  The black spot fungus grows and spreads all winter.

Nearly all tea roses get black spot in this area, as our winters are not cold enough to kill the leaves or even stop blooming.   The way we were taught to prune roses in spring in Landscape Management class was to wait until the photinia bloomed, to prevent freezing of tender new growth, and cut them down only to a foot tall, cleaning out spindly growth on what is left.  But I found that black spot took over the plant before it even bloomed, as soon as the new leaves were mature.  And roses start breaking bud before the photinia blooms, earlier in recent years, so leaf growth before that point was wasted, and blooming was delayed.

Betty Boop, cut the classic way roses are normally pruned in spring.  

Our teacher taught us that the way to bring any old, ugly shrub back to youth and beauty is to cut it to the ground.  When I applied this to roses, I found that it works for them, too; it grows back beautiful, with no black spot and great blooms. 

Betty Boop, crowned for the third year.  It was about 10 years old before the first crowning, a large, upright shrub rose; trunks 2-3 inches across, the whole crown about 8".

But cutting to the ground is not far enough if the crown is buried.  If you stop at ground level and don’t cut back to the crown, the underground stubs will grow small stems that only crowd the bottom of the plant.  You have to dig down to and around the crown and cut flush with it, filling back in afterwards.  Stems that grow directly from the crown grow back thicker and longer than from stubs, often to their maximum height for that kind of rose.

If that maximum height is too tall for your taste, you can crown it again after the first flush of flowers and it will grow back half as tall and bloom again.  One can crown a rose anytime during spring or summer and may want to if it grows mold on new growth.  But crowning in fall can cause new growth to freeze while it’s still tender and might kill it.

Revised 12-10-24, published online at GardenGrantsPass.blogspot.com  

Gardening is easy if you do it naturally.  Litter is tagging, marking the territory of the disorderly.

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

Weeding never ends in Grants Pass

 Blooming groundsel, center, and bitter cress surrounding

I saw a groundsel plant in full bloom right after New Year’s Day, down at the Greenwood Dog Park.  I thought it was earlier than I’d ever seen it, but checking last year’s article, it is, if anything, a little later than last year.

Young bitter cress, 2" wide

Likewise, bitter cress has been starting to grow and bloom in December, but not as fast as last year, likely due to all the cold rain we’ve been having, slowing its growth.  But I’ve been weeding the bitter cress and groundsel this year before it starts to bloom, so as not to have to do so much just before they start spreading seed.  I’ve been seeing dandelions blooming like last year, and wild lettuce is growing large faster than last year.

Over the last few years, weeding season has not ended; it has only been slowed down in late fall and early winter enough to concentrate on other things, like leaf cleaning and spreading.  Spreading of extra leaves over flower beds, shrub borders, and vegetable patches smothers young weeds so they don’t have to be weeded out, while seeds that later land on top cannot easily grow in leaves that dry out on top when the rain stops.

Seeded bitter cress

The main problem with groundsel and bitter cress is that they are ugly after they seed out, by which time it is too late to prevent the next crop.  Bitter cress is a small mustard that grows from 2 inches to 18 inches tall with little white flowers.  These form green pods that are nearly invisible until they pop dozens to hundreds of seeds about 18 inches in all directions and turn cream colored and ugly.  They come up in thick stands the following season, masking the loveliness of your garden.  Before it flowers, it is a good hot, bitter green for salads, but then it must be pulled or it will take over.

Seeding groundsel

Groundsel is a small relative of wild lettuce, with crenellated leaves and small, nodding yellow flowers that never completely open.  As the seed heads ripen, they grow erect and open to send their small fluffy seeds flying on the breeze to plague your neighbors like other wild lettuces. 

Both of these weeds can be readily pulled when young and the soil is wet, or they can be cut beneath the crown when flowering and will not grow back.  Like most annuals, they put all their root energy into growing a stalk and flowers.  

Wild lettuce putting up seed stalks, surrounded by seeded bitter cress, with cheat grass seeding behind it

Wild lettuce is harder to pull, but cutting under the crown will kill it.  It is bitter once it starts to put up a flower stalk.

Dandelions, on the other hand, are perennials that grow from thick, deep tap roots that do not die, and have to be dug out.  It is very bitter once flower buds have even started to form in the base.  Slide a shovel or a weeding knife beside the root and pop it out by leaning the tool away from the plant.  Repeat as necessary, any time you seem them.

January 2016 issue, published online at GardenGrantsPass.blogspot.com  

Gardening is easy if you do it naturally.  Litter is tagging, marking the territory of the disorderly.

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

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

Fired a bad attorney; hired a good one

This is a tale of three attorneys:  one who wrote a poorly written complaint; one who failed to appreciate the crisis and opportunity this presented; and one who saw what needed to be done and took immediate action.

Just before Thanksgiving, I reread the complaint filed on my behalf, in the harsh light of the City’s response to it in their Answer and Counterclaim and their Motion for Summary Judgment and Oral Argument.  I now could see that it was lacking in research and statements of law, and was so broadly and loosely written as to be partly false.

When I know I’ve made a mistake, I stop making it.  I didn’t want this man to file another piece of paper on my behalf, not even a motion to withdraw, much less the answers to the City’s filings, both of which were due within days, by my calculations.

So I fired off an email with the three filings attached, to the attorney whom I figured I should have hired in the first place, asking if he could save my case.  He was probably already gone for Thanksgiving and would likely be out of contact until Monday.  So I spent much of Thanksgiving weekend reading rules of court and trying to figure out how to withdraw my attorney and go pro se (represent myself) in time to write and file those answers by Thursday and Friday. 

On a site called OregonCivPro.com, where they have searchable and easily readable rules, I saw an ad for the Oregon Cannabis Law Group and Andrew Deweese, the owner/builder of the site.  I sent him an email, asking for assistance in finding such rules, and saying I was interested in retaining him.

My first choice for new attorney replied late Monday morning that he’d have to read the filings I sent and would get back to me.  I sent him copies of the filings I’d done that day, withdrawing counsel and asking for a continuance.  Mr. Deweese sent an email late Monday afternoon and a text a few hours later, asking me to call him.  I arranged by text to call 11:00 AM Tuesday.

We had a good 25-minute interview, going over the case and his experience.  He said that he would contact the City’s attorney, say I was thinking about retaining him, and ask for an extension on the Answer to the 28-page Motion for Summary Judgment.  He would also send me his contract by email.

When I got home that night, I found: an exchange between him and the City’s Attorney, negotiating an extension until January 21^st; his “Engagement Letter,” which was both thorough and readable; and a reminder to file the answer to the Counterclaim by Friday, so as not to default.  I signed the contract 24 hours later, Wednesday night, and asked him to write the answer for me.

While my first choice for replacement attorney was reading my paperwork, Andrew Deweese saved my sanity and my case, before he was hired, for free.  He also trusts his clients to pay him, and so doesn’t ask for a retainer deposit.  He has earned my trust and the money he will make off my case.

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