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

Oops! Goofed again!

Mark Seligman is a good friend to me.  He proved it by telling me that I had gotten a name wrong in my last piece, “David Frasher fired again.”  (Now corrected) It was Mayor Murphy who appointed 5 councilors, not Mayor Fowler.

I argued with him for a minute, while looking up a leaflet I’d written about it in 2009, “Clean the Slate.”  There was "Mayor Murphy."  I had forgotten a mayor who served 4 years, and ascribed all of his acts to Darin Fowler.  I voted for Mike Murphy, and I forgot him!

Lesson learned: fact-check everything, especially my own memory for names.  Mayors Fowler and Murphy, I am sorry that I didn't before spreading 300 hard copies.

A real friend will tell you when you are wrong, or if you literally stink.  You can catch a rancid bacterial infection of the sweat glands that you can’t smell until it is driving other people out of the room, but most people will never tell you about it.  I’ve had it twice, literally driving people from the room the first time, before I found a remedy. I find it helps to have a remedy to mention, which is triple antibiotic cream in the armpits.  People have thanked me for telling them. I learned it on the radio from Dr. Dean Edell, about curing stinky feet, a remedy I wish I’d known when my husband was still alive.

Mark is that kind of a friend.  He told me I was wrong; argued until I found that he was right; didn’t rub it in; and I thanked him.  We don’t agree on many things; we argue passionately in a friendly way; and sometimes we agree.

Some people think I hate the City of Grants Pass, its employees, and especially its Manager, Mayor, and Council because I am suing the City over an illegal ordinance.  I don’t hate anyone.  I am telling the Mayor and Councilor that they are wrong and their ordinance stinks, violating state laws, as Carl Wilson told them before the ordinance was passed.  I am pursuing the only remedy available to protect myself and other citizens from enforcement of that ordinance against us.

Some say that my lawsuit is costing the citizens money.  Elections have consequences, and so does not paying your elected officials.  Not paying your Mayor and Councilors means that you have few choices at election, and the ones you elect readily give up their seats.  In order to have real accountability from your elected officials, you have to give them something to lose, like a salary.

The Council showed how little they have to lose by trying to circumvent the laws and the will of the people of Oregon.  We changed the law, and they are unwilling to follow it, so the Council has to be changed.

November 7, 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 Chapter 5.72 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

David Frasher Fired Again

  

The fruits of code enforcement by complaint  

David Frasher was fired from being City Manager again, this time in Oregon City, soon after signing a 5-year contract, after working for them for three years.  They denied him severance payments, saying that he was fired for misconduct, making racially insensitive remarks to policemen.  Of course, he has filed suit, being a lawyer. 

When he worked for Grants Pass, he was known for temper tantrums and bad policies.  He was hired by a Council of developers and bankers, who let the previous, slow-growth Manager Petersen go.  The only way to get rid of an appointed manager is to replace the Council that hired him and likes his policies.  It takes two elections, since only half the Council is replaced every two years. 

Frasher particularly offended merchants, who ran as a block in the second election, and proceeded to fire him.  He instigated a city staff revolt, and after he was fired, the staff, opposing councilors and our new Mayor Murphy recalled the 5 councilors who fired him, leaving the city council without a quorum. 

Mayor Murphy illegally appointed 5 new councilors to replace them for 6 months until a special election could be held, was challenged by the ex-mayor Holzinger, and was upheld by two judges who ignored state law in the name of “exigent circumstances.”  Mayor Murphy and his appointed council continued Frasher’s policies and passed a new ordinance to reduce the size and height of signage, to the point where any new business has to appeal to the Council for variances.  The councilors elected since have been no better. 

Frasher was fired, but his policies are still plaguing us.  He started tiered water rates with higher charges for higher marginal use to save water, which oppresses the poor and makes it expensive to water our yards and business landscapes, while reducing water plant revenue because people stop watering.  He started Code Enforcement, soon called “Community Service Officers” or CSOs, and forbade police and firemen to enforce our codes, while discouraging CSOs from enforcing property maintenance codes until a property gets so bad that the City can abate it at 10% profit, now 20%.  He resurrected dormant codes against signsand merchandise on sidewalks, and then instituted a permit process for the same, as well as for tables on sidewalks.

We need to replace our Council again, to end Frasher’s policies and theirs.  Our new Manager Aaron Cubic is a true servant of the Council, and will likely work with new councilors.  It’s a no-pay part-time job, but it’s the only way to fix what’s gone wrong with this city.  Please consider running, and ask others to do the same.  I will be running for Southwest District.

October 24, 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 Chapter 5.72 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

Come to the City Goal-Setting Forum

Walgreens' front entrance

November is when our City sets its goals for the coming year.  This was started by our present Manager, Aaron Cubic, soon after he started working for Grants Pass.  To begin a process that stretches over several days, he starts with a citizen’s forum, which Councilors may but generally do not attend. 

The first year, many people showed up, full of hope for change.  Opinions were all over the map.  Change didn’t happen.

Discouraged, I didn’t go to the second year’s goal-setting forum, and even skipped the citizens’ forum for the police and fire performance auditors in 2013. 

No one attended the auditors’ forum, but they saw the litter and weeds in this town and said that the city must enforce its landscape maintenance codes, saying, “enforcement by complaint isn’t enforcement, doesn’t work, and isn’t fair to the citizens, who expect police to enforce the law.”

So I went to the Citizens Goal-Setting Forum last year, determined to push home that message. I was the only one there for 10 minutes, and then was joined by Arden McConnell.  Mr. Cubic and staff picked our brains for an hour, and Arden agreed with me that the litter and weeds need to be cleaned up.  But again, change didn’t happen.  We were only two.

This year, Manager Cubic has been making a point at the end of every City Council meeting to mention the City’s Citizen’s Goal-Setting Forum on November 12^th at 6:00 PM in City Council Chambers (behind City Hall at 5^th and A Streets).  He apparently wants more people to show up. 

Please come to the forum and give him more people, speaking with one voice on at least one topic, litter and weeds.  Please also tell him to lay off Homegrown and Medical Marijuana growers and follow state law, and whatever else you think he needs to change.

I may present my paper petition signatures to leave pot growers alone and target litter and weeds, leaving the online petition at Change.org for another time.  If you sign the online petition, you will get email updates on both issues, usually not more than once a week.

Please come to the Citizens’ Goal Setting Forum and tell our Manager what you think the city should do this year.

October 24, 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 Chapter 5.72 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

The City wants your “Hot Spots”

At the October 7^th City Council meeting, a gentleman read a letter from his wife about the trashiness of our city parks.  She had been avoiding taking her young children to them because of the litter, but someone told her that the little park downtown at 3^rd and G was pretty clean.  She walked down there with her 3-year-old boy and 18-month girl, and immediately saw transients hanging out right next to the play area, smoking and drinking, with their dogs, and butts everywhere.  The boy wouldn’t let her turn around, so she had to keep them away from the cigarette butts and the dogs for a while before they could leave.

At the end of the meeting, during matters from Council, Dan DeYoung said, “I know that people like Rycke don’t think I listen to her, but...” and proceeded to tell us that he had been talking to the City Manager about getting work crews to clean up particular “hot spots” for litter, to which I muttered, “How about enforcing the law?”  He said, “I’m sure that someone here could help us with that,” and the Council waved at me.

We could supply them with a long list of places that desperately need cleaning, but why should we?  They come in two varieties: those owned by the city and those owned by others.  The City should be cleaning its parks and other properties as a matter of course; it should be enforcing its code on others through its police.  As the public safety performance auditor told them last year, “Enforcement by complaint is not enforcement; it does not work; and it is not fair to the citizens who expect police to enforce the law.” 

As the lady pointed out in her letter, all of our parks are a mess, particularly around playgrounds and shelters.  Police should be told to open their eyes to litter and warn private offenders to clean it up well before it becomes an abatable safety hazard, a “hot spot” too hard to easily clean up, such that the city can do it for 20% over cost, plus fines.

We should complain, but not about particular “hot spots.”  We should complain about the city requiring that we complain to get enforcement against ongoing, obvious violations of our property maintenance codes.  We should complain about the city allowing neighborhood nuisances to ripen into safety hazards for the city to harvest, about the city profiting off hazards in our neighborhoods and targeting only the worst offenders.  Everyone should be told to clean up their properties by police who notice their trash.  It doesn’t matter who left it there; if it is on your property, it is your trash.

October 17, 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 Chapter 5.72 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

541-955-9040        rycke@gardener.com