Dec 192011
 December 19, 2011

oregon cannabisBuying medical marijuana from a storefront dispensary is becoming common in Oregon, but is it legal?

If you are an Oregon medical marijuana patient, you no doubt have noticed that the medical marijuana scene is changing. Almost all of my Oregon Medical Marijuana Program (OMMP) friends are now members of ‘collectives’ or ‘clubs’ or ‘fill in the blanks.’ I still call them dispensaries because until someone can give me a decent explanation as to the difference between them all, I call them all dispensaries. I know it’s a no-no word in the industry right now, but if you exchange medical marijuana for currency, regardless of how many bells and whistles you have at your location, I put you all into the same category to minimize confusion. I’m sure many of you will blast me for that but if I referred to everything in the hip new labeling there would no doubt be confusion. A marijuana consumer in Oregon might not know what a ‘collective’ is, but they no doubt know what a medical marijuana dispensary is.

I have debated the topic of Oregon medical marijuana dispensary legalities with my friends to the point that they are tired of hearing it I’m sure. However, I would point out to them that they asked me if I thought they were legal, so they asked for it ha ha. Whenever I am determining if something is legal or illegal in Oregon, the best place to start is the Oregon Revised Statutes (ORS), because after all, that’s the law. I apologize to people that are thinking to themselves ‘duh,’ but 9 times out of ten when someone debates me they always point to a friend, or a news article, or something other than the ORS‘. News articles are great for getting hints to the investigation, or what previous similar cases have dealt with in the past, but they are far from fact.

There are two parts of the law that are the most relevant to the topic of medical marijuana sales in Oregon:

475.304 (7) A registry identification cardholder or the designated primary caregiver of the cardholder may reimburse the person responsible for a marijuana grow site for the costs of supplies and utilities associated with the production of marijuana for the registry identification cardholder. No other costs associated with the production of marijuana for the registry identification cardholder, including the cost of labor, may be reimbursed. [2005 c.822 §8; 2007 c.573 §2; 2009 c.595 §966]

475.316 (1) No person authorized to possess, deliver or produce marijuana for medical use pursuant to ORS 475.300 to 475.346 shall be excepted from the criminal laws of this state or shall be deemed to have established an affirmative defense to criminal charges of which possession, delivery or production of marijuana is an element if the person, in connection with the facts giving rise to such charges: (d) Delivers marijuana for consideration to any individual, even if the individual is in possession of a registry identification card;

To sum up, an OMMP patient can reimburse the medical marijuana grower for the costs of ‘supplies’ and utilities that were used to produce the medical marijuana. However, the medical marijuana grower can’t deliver marijuana for consideration (profit in anyway at all, not just money), even to another OMMP patient. Law enforcement will tell you that the law is very straight forward – if you sell medical marijuana in anyway, it’s illegal.

That’s what happened at the Wake ‘N Bake Cannabis Lounge in Aloha, Oregon earlier this year. The Washington County Sheriff’s Office sent in confidential informants that purchased medical marijuana for up to $180 per ounce at the dispensary. Prosecutors in court said that the prices were consistent with street prices for marijuana and therefore the owner of the dispensary was clearly profiting and in violation of Oregon law. Seems straight forward right?

Let’s examine the law, what law enforcement says about medical marijuana dispensaries in Oregon, and inject some legal logic to see what’s really going on here. Let’s start with the price of medical marijuana’s production since it’s legal to reimburse the medical marijuana grower for ‘supplies’ and utilities. Notice I keep using the term ‘supplies’ instead of supplies. That’s because supplies are a subjective term. Are we talking just fertilizer, or are we talking about every hose, bucket, light, etc? The fact is, it’s up to an attorney to argue in court what ‘supplies’ means. If someone is using the most high tech hydroponic set up on the market, it’s going to cost considerably more for the finished medical marijuana than if the medicine was grown using little to no nutrients and growing outdoors.

Also, the strain of medical marijuana that is being grown is a significant factor. Some strains are more sensitive than others and require a very controlled atmosphere around them, which can be costly. Some medical marijuana strains take longer to yield, yield less than others, and all the while require more light and love. Therefore it’s impossible for any law enforcement agent to apply a ‘one price fits all’ model to a medical marijuana dispensary. I know Southern Oregon outdoor medical marijuana costs very little to produce finished medical marijuana which is why it costs so much less than the highest grade of indoor hydroponically grown medical marijuana.

I have seen medical marijuana strains that required more light than anyone could imagine, slurped up expensive nutrients daily, and took almost half a year to finally produce the lowest harvest a person could imagine. Given, the people growing it were greenhorns and that led to a lot of their woes. However, from a purely Oregon law standpoint, that’s some very expensive yet perfectly legal medical marijuana. The grower of that medical marijuana could pass the direct costs to the patient, and the cost per gram could be in the realm of $10. Law enforcement would see that as blatant OMMP abuse, however, they would clearly be wrong.

I can’t speak for every owner at every medical marijuana dispensary in Oregon. To be honest, I have met several medical marijuana dispensary owners that are shady characters, are clearly breaking the law and have no compassion for OMMP patients. However, that doesn’t mean that all medical marijuana dispensaries in Oregon are illegal and that they are ‘delivering medical marijuana for consideration.’ The simple act of exchanging currency for medical marijuana is perfectly legal if there is no profiting.

Which leads me into the next part of this article – activities that are illegal under Oregon law. Most dispensaries charge either a ‘walk thru the door’ fee or a membership fee. The exchange that takes place at the cash register isn’t necessarily illegal, but the fees are. The argument that the owners will make is that the fees pay for the cost of running the operation. However, the word ‘consideration’ in the law means that anything above and beyond the cost of the medical marijuana production is illegal. Even a storefront, which is considered a benefit to the owner.

Another thing that I see that is troubling is most dispensaries are taking ‘donations’ from OMMP patients. My question is ‘when you are selling pounds a day, per gram, at roughly $10 per gram, that amounts to a lot of donations. What lucky charity is getting that significant amount of ‘donations?!’ Owners will inevitably say that the dispensaries themselves are non-profits, but it only takes a forensic accountant about ten minutes to see that the money is not going to needy causes. Part of it goes to the grower, and the rest goes into the pocket of the dispensary owner, which is not a charity. A person can’t start an entity, call it a non-profit, then keep any profits and call it ‘salary’ for running the ‘charity.’ That’s charity fraud and no judge or jury is going to see it any other way.

The only truly legal way that I see an Oregon medical marijuana dispensary operating legally is if the funds that pay for the building and utilities are derived from some other source other than the medical marijuana exchanges for currency. All of the money that is paid for the medical marijuana has to go directly to the grower, and nothing above and beyond the costs that they can point to as being ‘supplies’ or utilities. The grower can fluctuate their price accordingly, however, the dispensary itself cannot see any of that money. Otherwise law enforcement can go after fees or whatever else that is ‘consideration.’

Of course, all of this is really a moot point. There have only been two medical marijuana dispensaries raided (at least according to public reports, there’s rumors of other dispensary busts) in Oregon ever. Both of the medical marijuana dispensaries were in Washington County, and as any OMMP participant will attest in Washington County Oregon, the Sheriff’s Office there has been on a warpath against the Oregon Medical Marijuana Program for a long time. Laws are only as good as the enforcement behind them, so at the end of the day people are selling medical marijuana out of storefronts for outlandish prices in Oregon regardless if it’s legal or not. Soon, if not already, there will be so many medical marijuana dispensaries in Oregon that enforcement will be impossible.

To sum up, are Oregon medical marijuana dispensaries legal? If they only reimburse the medical marijuana grower for their ‘supplies’ and utilities, then yes. Anything above and beyond that is hazy at best, and I would personally say that anything more than reimbursing the grower for ‘supplies’ and utilities is illegal. I’m not saying that I believe that’s how it should be, because after all, I have fought very hard to make marijuana legalization a reality, medical or recreational. I think it should be sold in stores like alcohol or tobacco and it would help our economy immensely. Hopefully this article goes the way of the dinosaur in the near future because marijuana will have it’s rightful place in Oregon law as a legal, viable cash crop.

 

Go to NotDwightHolton.Com to find out why you should not vote for Dwight Holton for Oregon Attorney General, and ‘like’ the Not Dwight Holton Facebook Page!

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About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • axe savage

    The cannibas club in GrantsPass Oregon is a cop ran business. They are telling all patients & growers that it is illegal to ask for money from any patent for any reason more than once. They think you cant charge more than once for growing cost. They also have set up many people and those people are in jail as an Example they say. These women who work have Cops for Husbans
    They have many people on edge. These women need to be shut down for discrimation against the Growers and Paitents. They are making up there own laws and have no proof any laws have changed.

    • yvonne

      amen to that.

  • Bz

    Thanks that was pretty informative, i have been looking into moving to oregon and have been studying the laws and mmj “suppliers”.

  • just saying

    By selling the trimmings, stalk and medicine of the cultivated plants and “exchanging” it to a  legal ” medical marijuana co-op” you are then in fact being “reimbursed” for your “supplies” and “labor” expenses.Â

    • MoJoe

      One thing not started in this blog, but stated in the statuate, reimburment can only come from patients who you are a registered grower for. So any reimbursement, supplies or otherwise, from an OMMP card holder, that you aren’t on paper with, is a DCS (delivery for consideration of sale) or a felony in OR. So to sum it up, all the clubs/collectives/dispenceries are operating illegally, and any grower excepting money from any random patient, is as well.

  • SpatialTerror

    well say your a grower. and you are doing outdoor growing. and during harvest per card u have over 1 1/2 lbs. and you have cost to make. i mean do you just sit and hope they dont come lock you up? or can we have co ops that you can take your excess product to? i am using youtube 10lb outdoor vids as kinda an example. because i am a grower in eastern oregon and if i did 3 10lb plants that would be totally legal as far as growing them. but once i harvest. i would have atleast 20lbs to distribute to other card holders for the cost to grow it. which would be very cheap. but put me at risk while helping other card holders. instead i have a indoor hydroponic grow and pretty soon i will be producing a 1/2 a lb every month. possibly more. legally. but my system has cost me $3000 and counting. and well for first harvest to be a around 6oz. its hard to see how people sell it for under $10 a gram. because not only are my cost are high. but i need meds. and well im almost forced to either cut it off even at a loss and hopefully have meds until im cycleing smoothly. and then try to make cost back. but there again my costs are high and building. and if i need my cost back now. and cant afford to give up the time to distribute it without being able to atleast make an hourly wage while doing so. u need someone either way you go. even with the hydroponic indoor grow.because i have taken big chunks from my income that i need back. and basically im saying i dont have time time a day to sell it for cost by the gram for no wage. i wish day in and day out i could become a dispencery “non profit” i mean as long as i can make my costs of owning and running the storefront and help growers make there costs back as well as protecting them from posessing too much. and do it with a set price for weed at 10$ a gram and help patients who cant afford it. and basically at the end of the year go through the costs and earnings. and pay myself and all employees an hourly wage from min to $30.00. pay taxes on the total income. and any profit margins would be donated to local schools, police, fire, road&bridge, and parks. plus mabye if possible use the money directly to build parks or community centers. or help ohp or food stamps. and i know if i feel this way there has to be other growers out there that feel the same way. and we need to inform oregon and let them know why we need medical marijuana to be organized. i wanna help people. and make an honest living doing it. is that really too much to ask out of a very useful, relatively safe plant? compaired to the alcohol industry. where i belive you need a large sum of money to even get your foot in the door. and with the way it affects people and how deeply ingrained into our culture it is and also how much we know about both mind altering substances. im suprised that is was ever made illigal. especially with how useful hemp is. i mean do we really wanna keep racial divides engrained in law??? i dont. i just wanna feed my family, pay off student loans for one of the best collages for the automotive industry that didnt get me a job over min wage. because i tried the way of picking a career and sticking with it and every way i looked i eventually saw a dead end. with medical marijuana i see a possible future career. i know i wrote alot. but theres not that may card holders around here who stay as upto date and involved as i do. and we all need to be. and well i just wanna point out as well hemp oil being a good canidate for the automotive industry especially with the big green movments were having. im just saying this being a 20 year old kid whos been trying sense i was 16 to make a life for me and my mom. and possibly a wife and kids in the future. and well marijuana hasnt ever really hurt anyone like alcohol and prescription drugs and other illigal drugs. and well with mind altering substances being a part of american society why cant we build a better brigher more caring future with marijuana.

    thanks for reading

    • SpatialTerror

      also i belive growers who grow for them selfs and other patients should be able to do the same as far as being able to make an hourly wage. pay taxes and costs of the buiness. even if its a delivery service or what ever. as long as they keep track of there harvest’s buys and sales and income. and costs. but i dont belive $65+ an hr is acceptable for claiming non profit. or having excess employees. even though thats good for the econemy. and well donations from a non profit to schools and such shouldnt be a tax write off either. we can fix this econemy one piece at a time. and marijuana isnt a fix or even a band aid really. but its a pretty significant step in the right direction. which would also help alot of what i call underground americans. who fear the almighty drug test. and bring them out of the shadows and in to employment with normal lives. like many of them are trying for. i think the unemployment issue is also due to americans not wanting to work because of fear of incrimination. or a feeling or either entitlement to benifits or “why work when i can get tax payer money” mentality, which is somewhat fuled by drug cartels who basically still control big marijuana biz and assiciate it with other harmful illigal drugs.why make america lie? i firmly believe that todays judicial system is our main problem with determining whats “right” and “wrong” and the fact is when more americans are making determined “wrong” choices that police courts jails and prizons make more tax payer money. so they protect these laws to the death to stay the way they are. because lets say 47% of americans are involved in marijuana or support it use it ect. thats still the satistical minoroty. and if its illigal then thats big biz for anyone involved in law. especially with how expencive court cases are. and well they bash down on the minority with there money and to try to make you see things from there prespective. and when ur them its awsome. your set for life and dont have to worry about much accept “catching criminals” and making them pay for your great life. and every one loves you because you “protect” the community. its not a fair fight for us the minority. reguardless of race. honestly shouldnt our justice be there when there is a victim(s) and only a victim. when ur not physically hurting someone or hurting them or prepairing to do such why should it be illigal. i mean under that i think drinking and driving would possibly be legal even though dangerous. but this country is supposedly about freedom and when we dont have the freedom to choose. how free are we really? i mean yea its really bad if i killed someone drinking and driving and if i survive i should be punished bad especially if i kill or seriously injure someone.but say i did make the choice to drive drunk and did like 5mph driving down the road getting where i need to get safely without hurting someone. then is what i did really so bad? and every drunk person ive ever seen jump in a car usually wanted to go fast. so yes its dangerous. but i think you should be able to make safe choices. and we need to work through past things to make a proper happy future. and by the way what would happen to the medical industry if we sucessfully nurfed the world like were tryin to do. like look at new yorks soda limits. its just sick. and makes me wanna move to canada every day

    • yvonne

      beware.stay illegal.bud,

  • yvonne

    for us small home growers,that just want to help ,the less fortunate ,this is bad,you no very well that there making a big profit,there has bad has the cartels,how do we no there not,very sad,for home growers that just want to help.with a little reimbursement,we are small, and very rare,for all men want, the all mighty dollar,amen.

  • Ommps dumbest patient

    Thanks for this I’m an ommp patient previously wa state and ca patient. I didn’t need a grower but some non profit matched me w a grower. I saw about 5 “free ounces” over a year. I couldn’t believe how dumb my growers wife was being. They bragged about their new house and showed pics of their new dune buggy the last call I made she bragged about smoking meth in the past. I had to hire a lawyer do a background check. (My grower has a criminal record of assault 4 driving w a suspended liscence no insurance no seatbelt speeding and his kid had theft in 2 nd degree.) I have a year of emails where she indicts herself and her husband of felony after felony and the last straw. My phone call went unanswered for 3 weeks. I got called rude and she said ” hey I didn’t call you bc I have 3 kids “. I wrote my will last month. I’m 44 and have no family. I lose my pension and my health insurance next week. Nice job growers The growers in portland area are really pissing off the patients. Dying people. Oregons dumbest criminals.

  • reb

    johnny, i am a 64 year (young at heart) old hippy,original flower-child… i really need my medi- mari j.i have smoked daily for my terrible chronic pain; and now want to hook up with a doctor from your state…. i suffer from many joint (no pun intended) injuries and bad arthritis, my hubby of 41 years( a nam vet) is in the same shape as i. i have always dreamed of visiting.. gold beach oregon…. at my age i better chase that dream soon… any suggestions or advise my friend…. please respond…. PEACE.