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Brown v. City of Grants Pass

Court of Appeals of Oregon

March 28, 2018

Rycke BROWN, Plaintiff-Appellant,
v.
CITY OF GRANTS PASS, an Oregon municipal corporation, Defendant-Respondent.

          Argued and Submitted February 16, 2017

          Josephine County Circuit Court 15CV26821 Pat Wolke, Judge.

          Kevin J. Jacoby argued the cause for appellant. On the opening brief was Andrew C. DeWeese. With him on the reply brief was Andrew C. DeWeese.

          Melisa A. Button argued the cause for respondent. With her on the answering brief was Hornecker Cowling LLP.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary:

In this declaratory judgment action, plaintiff appeals from a judgment of the trial court, concluding that ORS 633.738, which prohibits a local government from enacting or enforcing local limits on the production or use of plant seeds, preempts an ordinance enacted by the City of Grants Pass requiring that marijuana plants grown at home for personal use be grown indoors. Plaintiff contends that the trial court erred in its construction of ORS 633.738. Held: The trial court did not err. Marijuana seeds for home growing of marijuana plants are not subject to ORS 633.738, because such seeds are not "flower seed" or "nursery stock" within the meaning of ORS 633.738. For that reason, the city's ordinance is not preempted by ORS 633.738.

         Affirmed.

         [291 Or. 9] EGAN, C. J.

         Plaintiff sought a declaration that an ordinance enacted by the City of Grants Pass, requiring that marijuana plants grown at home for personal use be grown indoors, is preempted by ORS 633.738, which prohibits a local government from enacting or enforcing local limits on the production or use of plant seeds. Plaintiff appeals from a judgment of the trial court holding that the city's ordinance is not preempted by the statute, because the growing of marijuana plants at home is not subject to ORS 633.738. We agree with the trial court and affirm.

         We begin with a brief description of the statutory context. In 1998, Oregon voters approved the Oregon Medical Marijuana Act (the OMMA), now codified at ORS 475B.785 to 475B.949, which authorizes the licensing, growing, processing, possession, prescription, and dispensing of marijuana for medical use, and exempts its use under the act from criminal liability. The Oregon Health Authority administers the OMMA.

         In 2014, voters approved the Adult and Medical Use of Cannabis Act (the AMCA), now codified at ORS 475B.010 to 475B.545, which legalizes adult recreational use of marijuana. The Oregon Liquor Control Commission (OLCC) administers the licensing and permitting of producers, processors, wholesalers, and retailers of marijuana for recreational and medical use under the AMCA.

         The AMCA also legalizes the noncommercial production, making, processing, possession, and storage of marijuana and marijuana products "at a household." ORS 475B.301(1). Persons who grow marijuana plants at home for personal noncommercial use are not subject to the licensing and permitting requirements that apply to commercial producers, processors, wholesalers, and retailers of marijuana under the AMCA, "if the total amount of homegrown marijuana at the household does not exceed four marijuana plants at any time." Id. ORS 475B.015Q0) defines "homegrown" marijuana as marijuana plants or marijuana products "grown or made by a person 21 years of age or older for noncommercial purposes." ORS 475B.306 provides that [291 Or. 10] a person may not "produce, process, possess or store homegrown marijuana" or marijuana products where they "can be seen by normal unaided vision from a public place."

         The city has enacted an ordinance requiring that, after December 31, 2015, marijuana "cultivation, drying, curing, storage, production or processing" for recreational or medical use "shall be conducted indoors." Grants Pass Municipal Code (GPMC) 5.72.030(2). There is no similar restriction in the AMCA, but plaintiff concedes that restricting growing of marijuana to indoor areas "may not conflict with any restriction" in the AMCA. Plaintiff brought this action seeking ...


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