Local Taxes on Marijuana Proposed As Way Past Opt-Out Fight (Updated)

Oregon legislators revealed a potential compromise in Salem today, which may provide a way past the fight over how much power local governments should have over regulating medical and recreational marijuana facilities. This issue has proven to be one of the stickiest ickies in the process of bringing retail marijuana to market in Oregon, and has single-handedly stalled attempts by the current legislature to refine the medical regulations to bring them in line with the requirements of a sustainable market and federal guidance.

At the heart of the issue is whether local government would be able to ban medical marijuana facilities without putting the ban to voters. The Oregon Senate recently passed a bill that would allow such bans. The Oregon House favors language that would automatically send any proposed ban to the ballot, much as Measure 91 does for proposed local bans of recreational facilities.

The latest amendments to House Bill 3400 attempt to circumvent this conflict by throwing money around (this has been known to work). The bill now allows local governments to collect a tax of no more than 3 percent on local sales of recreational marijuana, in exchange for cities and counties backing off the issue of local control for the time being. This is part of a proposed change to Measure 91 that would collect revenues through a sales tax on marijuana rather than a tax at harvest. Legislators are still toying with the percentages so that collections would approximate a harvest tax while also ensuring retail marijuana was priced competitively with the black market, but the latest proposal is 17 percent.

Update (6/11/15): Negotiations have broken down for the moment, with Senate Minority Leader Ted Ferrioli e-mailing colleagues to say he was not on board with the compromise. While discussions about a switch to a sales tax from a harvest tax at the state level are ongoing, local taxes appear to be off the table for the moment.



Marijuana Tours of Portland by Pedicab

I recently wrote about the problems facing tourists to Oregon who want to smoke recreational marijuana. Here’s a very Portland solution to an Oregon problem – pedicab marijuana tours. Now, if you’re local like I am, this idea probably seems less novel and more like the natural evolution of Portland business development. It also happens to fall into an exception in the section of the Portland City Code restricting smoking in for-hire vehicles.

Portland Allows Smoking in Pedicabs

Section 16.40.340(A)(9) forbids permitted for-hire vehicle drivers from “[a]llow[ing] any passenger to smoke any substance or use tobacco in any form inside a permitted vehicle, unless it is a pedicab.” Per the code, a pedicab is a tricycle that:

-       transports passengers on seats attached to the tricycle,

-       is powered by a human or a human with an electrical assist, and

-       is used as a for-hire transportation service.

So offering tourists a place to smoke is as easy as operating a pedicab, right?

Sort of. Measure 91 forbids the “the use of marijuana items in a public place,” and says that a “public place” is “a place to which the general public has access and includes…highways [and] streets.” So is the inside of a pedicab on a public street a “public place?” The answer, as with most Measure 91 questions these days, is that it remains to be seen. With any luck, the OLCC will follow in Colorado’s footsteps and clarify this point when they write the rules. If they follow Washington’s example, some enterprising Portlander will have to put the language to the test.

Colorado Allows Smoking in For-Hire Transportation

In Colorado, Amendment 64 prohibits consumption of marijuana “openly and publicly,” but the legislature carved out a specific exception allowing the use of marijuana in the passenger area of for-hire transportation. As a result, several tour companies in Colorado currently allow passengers to sample goods in between stops.

Washington Left I502 Unclear, Then Shut the Door

In Washington, I502 prohibits the consumption of marijuana products “in view of the general public,” but doesn’t clarify what this means. Enter the WeedBus. Christened in 2014, the WeedBus offered marijuana-themed tours of Seattle on which tourists and frustrated Seattle renters could smoke weed. The operators counted on tinted windows to keep them compliant with I502. Despite the lukewarm endorsement of the Seattle Police Department, the WeedBus was shut down by State authorities, who took the position that “charter and excursion vehicles, drivers, and passengers are considered to be in view of the general public.” The WeedBus continues to operate as a smoke-free tour company in Seattle, though our sources tell us it was recently seen in Portland putting the definition of “public place” to the test.

Operating Marijuana Pedicab Tours in Portland

So what does all this mean for your pedicab marijuana tour business? Keep an eye on the OLCC rule-making progress. Early indications are that the agency is taking a measured and comprehensive approach to the rules. With luck, we’ll end up with a thorough set of rules that addresses specific questions like these about the practical realities of legal marijuana in Oregon. 



Where Can Tourists in Oregon Smoke Marijuana?

The answer (for the moment) is nowhere! Seriously, don’t do it. Possession of recreational marijuana is legal in Oregon only after July 1, 2015. And now is as good a time as any to mention that marijuana remains illegal under Federal law. Don’t say I didn’t warn you.

But here’s the rub: after July 1 it doesn’t get much easier. Marijuana tourism has the potential to be a major driver of the green economy in Oregon, but Measure 91 and current state law don’t leave a lot of options for out-of-staters who want to use recreational marijuana. In this post, I’ll address what the law currently allows, and discuss some potential solutions. With apologies to Dr. Seuss:

You cannot smoke it in a bar…

Don’t expect to light up at a local watering hole. First, Oregon’s Smokefree Workplace Law bans the use of “smoking equipment” in any enclosed public space and any place of employment. The law doesn’t currently cover e-cigarettes or other vaporizing hardware, but the Oregon Health Authority is openly encouraging local authorities to regulate their use, and the Oregon Legislature is working on a bill to expand state law. Second, Measure 91 bans the use of “marijuana items” any place that’s open to the general public.

You cannot smoke it in a car…

Use in vehicles is also out. Needless to say, it’s a very bad idea to use in a car that you’re driving yourself. For-hire transportation is regulated locally, so let’s look at Portland’s City Code. The Code bans smoking by drivers and passengers of for-hire transport (interestingly, there is an exception for pedi-cabs – this is too Portland not to be the topic of its own post), which rules out cabs and limos (party buses or other charters are a grey area, and will also be addressed in another post).   

You cannot smoke it on the street…

No surprises here. Though you can smoke tobacco in public in Oregon, Measure 91 specifically bans the use of marijuana in public places.

You cannot smoke it in 75% of hotel rooms

And I ran out of rhymes. Oregon smoking laws allow hotel owners to designate up to 25% of their rooms as smoking rooms, where tourists could presumably partake of legal cannabis purchased in Oregon. But where’s the fun in that? For visitors who want a more social experience, there are a few possibilities once the rules are written.

Private clubs could permit smoking marijuana

Oregon state law prohibits smoking in places of employment that are open to the public. Colorado and Washington entrepreneurs have attempted to work around similar laws by opening members-only clubs that are staffed by volunteers, with mixed success. Major stumbling blocks are making the club sufficiently exclusive, and avoiding having volunteers classified as employees. Oregon smoking laws fall somewhere between Colorado (laxer) and Washington (the country’s strictest), but it appears that Oregon may be more open to exceptions than Washington is. I am hopeful that there will be room to operate once the dust settles.

Smoke Shop laws could be expanded to include marijuana

Oregon law allows smoking on the premises of OHA-certified smoke shops. This exception to smoking laws is unique among states that have legalized recreational marijuana. A willing legislature could adapt existing law to include marijuana.

Something new entirely

Seattle authorities have recognized the difficulty posed to tourists, renters, and homeless people who want to use legal marijuana. The City Attorney is working with the City Council to legalize "marijuana use lounges," where edibles and vaporizers could be used (though smoking would still be illegal).