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Home My WebLink AboutOrdnc 008 - Marijuana DispensariesDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of March 17, 2014 DATE: March 4, 2014. FROM: Nick Lelack CDD Phone #1708 TITLE OF AGENDA ITEM: Public hearing on and possible First and Second Reading and Adoption of Ordinance 2014-008 Adding DCC 9.04.040 to Prohibit Any Business or Sale of Any Federally Controlled Substance in any Deschutes County Zone Except as Allowed by Federal Law and Declaring an Emergency. PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: In 2013, the Legislature passed House Bill 3460, the Oregon Medical Marijuana Act, "creating the most unregulated marijuana dispensary program in our Nation," according to the Association of Oregon Counties. However, because of the way the bill was written and because of the federal prohibition on the sale of marijuana, it is unclear if cities and counties are allowed to ban medical marijuana dispensaries. The League of Oregon Cities' Legislative Alert states: "The Oregon Supreme Court has already noted a preemption of the Oregon Medical Marijuana Act in a previous ruling and it is unlikely that a court would find that cities must allow or participate in a violation of the federal Controlled Substance Act." Many cities and counties across the state are taking various actions to ban or regulate medical marijuana facilities given the current legal uncertainties at the state and federal levels. The Board directed staff to initiate TA 14-3 to ban marijuana businesses and the sale of other federally prohibited substances. The Board indicated it would be open to revisiting this code provision in the future based on changes in state and/or federal law. The policy implications of TA 14-3 are unclear. It is possible it might violate the Oregon Medical Marijuana Act and at the same time comply with the federal Controlled Substance Act. The purpose of the emergency clause is because the ability to establish a marijuana dispensing facility per HB 3460 became effective March 1, 2014. Such uses are not specifically listed in the Deschutes County Code and the Board desires to provide clarity and prevent the current establishment of dispensaries in the County until such time as state and federal regulations are deteiuiined to clearly allow such uses. On February 27, the Planning Commission voted 5-0 to forward TA -14-3 without taking a position. FISCAL IMPLICATIONS: This ordinance may result in litigation to clarify whether the County can prohibit the uses allowed by HB 3460. Litigation would result in costs to the County. RECOMMENDATION & ACTION REQUESTED: Board policy decision. The Ordinance is drafted with an emergency clause to provide clarity on this issue in Deschutes County immediately. Should the Board approve the following would be the appropriate motions: Motion 1: First and Second Reading by Title Only. Motion 2: Adoption of Ordinance 2014 -XXX. ATTENDANCE: Nick Lelack, Laurie Craghead DISTRIBUTION OF DOCUMENTS: Nick Lelak REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Adding DCC 9.04.040 to Prohibit Any Business or Sale of Any Federally Controlled Substance in any Deschutes County Zone Except as Allowed by Federal Law and Declaring an Emergency. ORDINANCE NO. 2014-008 WHEREAS, the Board of County Commissioners ("Board") initiated an amendment to Deschutes County Code Title 9 to add Chapter 9.04.040 Controlled Substances; and WHEREAS, after a duly noticed public meeting, on February 27, 2014, the Deschutes County Planning Commission reviewed the amendment and voted five to zero (5-0) to forward the amendment without taking a position to the Board; and WHEREAS, after a duly noticed public hearing, on March 17, 2014 the Board approved the amendment to Deschutes County Code; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. ADDING. Deschutes County Code Section 9.04.040 Prohibited Substances is added to read as described in Exhibit "A" /// PAGE 1 OF 2 - ORDINANCE NO. 2014-008 Section 4. EMERGENCY. This Ordinance being necessary for the public peace, health and safety, an emergency is declared to exist and this Ordinance takes effect on its passage. Dated this of , 2014 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair ANTHONY DeBONE, Vice Chair ATTEST: Recording Secretary ALAN UNGER, Commissioner Date of 1St Reading: day of , 2014. Date of 2nd Reading: day of , 2014. Commissioner Tammy Baney Anthony DeBone Alan Unger Record of Adoption Vote: Yes No Abstained Excused Effective date: day of , 2014. PAGE 2 OF 2 - ORDINANCE NO. 2014-008 9.04.040. Controlled Substances The use of any building, structure, location, premises or land for any marijuana business or the sale of any federally controlled substance is prohibited by Deschutes County Code, and is not a permitted or conditional use in any Deschutes County zone under Title 18 except as allowed by federal law. (Ord. 2014-008, §1, 2014)