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 “I tell ya I don’t get no respect. No respect at all.”

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If Sections 42 and 58 of Ballot Measure 91 were able to talk during the 2014 political campaign, this is what they might have said. These Rodney Dangerfield-like provisions were not merely ignored by dozens of city councils who “preemptively” adopted ordinances that taxed recreational marijuana. The provisions were expressly acknowledged by the city councils, and then duly ignored. Ouch.

To refresh everyone’s memory, here’s what these fine provisions (which were copied verbatim from Oregon’s current liquor statutes) have to say for themselves.

Section 42. State has exclusive right to tax marijuana. No county or city of this state shall impose any fee or tax, including occupation taxes, privilege taxes and inspection fees, in connection with the purchase, sale, production, processing, transportation, and delivery of marijuana items.

Section 58. Marijuana laws supersede and repeal inconsistent charters and ordinances. Sections 3 to 70 of this Act, designed to operate uniformly throughout the state, shall be paramount and superior to and shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it. Such charters and ordinances hereby are repealed.

Could these provisions be any clearer? What kind of legal analysis would cause anyone to think that a local tax might be “grandfathered in” if an ordinance was adopted before Election Day? Don’t the words “replace,” “supersede,” and “repeal” expressly contemplate preexisting ordinances?

The political analysis seemed to be just as sophisticated. As far as I could tell, it boiled down to something like this: “Well it’s probably not going to work, but everybody else is doing it, so let’s just do it too.”

But hold on. Not so fast. There are always heroes, both major and minor, to every story. And one of my favorite moments in the campaign came from the Banks City Council when they were discussing the adoption of an ordinance that would have taxed recreational marijuana. “Essentially, this is posturing?” Councilor Rob Fowler asked. “Yes,” answered city attorney Dan Kearns.

I’m a sucker for straight talk, and so that made me smile.

But all of that was yesterday. Election Day has come and gone. The campaign is over, the votes have been counted, and the time for serious thinking and implementation is here.

And so, I thought, it might be helpful if everyone fully understood the two main themes of Ballot Measure 91.

The first theme is an adherence to the eight federal enforcement priorities regarding marijuana that are specified in the US Department of Justice Memorandum dated August 29, 2013 by Deputy Attorney General James M. Cole. These eight priorities, which are set forth in Section 1 of Ballot Measure 91, are as follows: (1) preventing the distribution of marijuana to minors; (2) preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; (3) preventing the diversion of marijuana from states where it is legal under state law to other states; (4) preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal

activity; (5) preventing violence and the use of firearms in the cultivation and distribution of marijuana; (6) preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (7) preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and (8) preventing marijuana possession or use on federal property.

All Oregonians, regardless of how they voted on Ballot Measure 91, should be in favor of these priorities. In that sense, and with respect to those priorities, we are all on the same side.

The second theme of Ballot Measure 91 is to minimize the illegal marijuana market to the greatest extent possible. This is perhaps implied by the Cole Memo, but I think it deserves its own special emphasis, as minimizing the illegal market is, in my opinion, one of the primary means by which Oregon can accomplish the goals in the Cole Memo. (Note that it could be that said that Washington’s Initiative 502 adheres to the enforcement priorities in the Cole Memo. However, I think few would say that Initiative 502 was drafted in a way to minimize the illegal market to the greatest extent possible.)

To minimize the illegal market, private businesses should be incentivized to enter, and remain in, the regulated market. Likewise, adult consumers should be incentivized to purchase marijuana from licensed retailers rather than from an illegal non-taxpaying dealer.

Now, it should go without saying that the tax structure in any marijuana regulatory scheme will play a vital role in minimizing the illegal market. After consulting with national tax policy experts, and after examining different hypothetical tax models for marijuana, we adopted five tax philosophies for Ballot Measure 91: (A) tax as early as possible in the distribution channel; (B) tax by weight rather than by price; (C) remain watchful with respect to how the illegal market responds to the legal market; (D) remain flexible in responding to the illegal market; and (E) ensure that the State is the sole taxing authority.

A cohesive tax policy that can compete with and respond to the illegal market will be virtually impossible if dozens of local jurisdictions are able to continually and sporadically impose different and uneven taxes.

There may come a time at some point in the future when matters stabilize to such a degree that the illegal market is no longer of any practical consequence. However, until then, the Oregon legislature and the various city councils that adopted marijuana tax ordinances should respect the will of the majority of Oregon voters by not amending, and by following, the clear language and intent of Sections 42 and 58 of Ballot Measure 91.

Specifically, the Oregon legislature should resist amending these sections during the 2015 and 2016 legislative sessions. The city councils that adopted the ordinances should repeal them, or at least suspend them while Ballot Measure 91 is given a chance to be implemented in accordance with its terms. A city council that seeks to impose a marijuana tax in clear violation of Sections 42 and 58 of Ballot Measure 91 will collect nothing and will simply waste time, money, and energy defending a lawsuit that cannot be won.

Naturally, the desire to raise tax revenues from a new source is tempting. However, Ballot Measure 91 already distributes tax revenues to cities, counties, schools, law enforcement, and mental health, alcoholism, and drug services. Let’s call that good enough for now. Because in the long run, minimizing the illegal market sooner rather than later will result in more tax revenues for everyone.

Ballot Measure 91 provides the State of Oregon and every local government with a unique opportunity to implement a new policy and to create something of lasting value, while at the same time promoting public safety and a more sophisticated dialogue concerning the subject of marijuana. Imagine the pleasant surprise and pride that current and future Oregonians might feel if all areas of state and local government are able to cooperate, execute, and perform in a constructive manner and successfully implement Ballot Measure 91. If such a thing were to happen, more than one future Oregon voter might have reason to say: “I gotta tell ya. You earned my respect.”

You can read the published version in the Oregonian.

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Emerge Law Group is headed to Vegas today for the MMJ Business Daily Conference and the NCIA 4th anniversary dinner.

We will be there with hundreds of other cannabis professionals networking, sharing stories and celebrating our victory with Ballot Measure 91 in Oregon. We will also be reaching out to the people who have gone through the legalization process in Washington and Colorado to see what worked and what didn’t from an internal policy-making experience.

We will also be meeting other dispensary owners, growers and entrepreneurs from around the country who are working to make this industry great. These events are always fun and worthwhile.​

If you are a canna-business, either established or just in the planning stage, these events are a great opportunity. Even though this country seems vast and it may appear that legal markets are already getting full, we are still a very, very small community. We can help each other learn and grow. We can provide support to each other and view our fellow travelers as allies and partners instead of competition.

While it might be too late for you to hop on a plane to Vegas (is it ever really too late to hop a plane to Vegas??) there are other great events coming up including the next ICBC, International Cannabis Business Conference, in San Francisco February 15th and 16th.

Take the time to come to these events and conferences. Meet everyone, share a drink or coffee and a story. We can make the cannabis industry in Oregon, and across the country, stronger with our collaboration and communication.

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Now that Ballot Measure 91 has passed many people who have been waiting on the sidelines are feeling more comfortable moving forward with starting their cannabis business in Oregon. But, because rule-making won’t start for many months, and there is still a 2015 legislative session to get through, how do you do it?

Below are a number of issues to consider if you are ready to start your cannabis business now:

– The Oregon Medical Marijuana Act still applies. https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2013ors475.html

– Because OMMA still applies we are a reimbursement state for all cannabis until July 2015 and still a reimbursement state for medical even after recreational becomes operative- until the legislature modifies that language during the 2015 legislative session

– If you plan to open your cannabis business in Oregon before the licensing process is done you will be operating under the existing laws. That means if you are a dispensary you are applying for a license under House Bill 3460, if you are a grower you are finding patients and growing for them under the OMMP and if you are a processor or making edibles you are continuing to operate in an almost unregulated environment.

– There are lots of things we don’t know yet which makes some decisions risky. These things include zoning for grows, local regulation of time, place and manner, whether a medical dispensary can become a recreational one, if grows and processing can be in the same location and many more. Some of you will make good bets and some won’t and we will wind up fighting about it. Consider this a period of transition.

– We don’t know if the Oregon legislature, which meets for the first half of next year, will make serious statutory changes to Ballot Measure 91. While they have been typically resistant to overhauling a measure the voters just endorsed, it may very well happen. There are a lot of interests at play and there are likely to be at least a few unexpected changes.

Here’s what we do know about Ballot Measure 91 and the recreational cannabis market:

– There will be four licenses. Those are producer, processor, wholesaler and retail. Producers are growers, processors are packagers and labelers, edible makers and people making extracts and concentrates. Wholesale licenses are like beer and wine distributers. This license should cover transportation, brokers and cannabis reps. Retail licenses will be issued to storefronts.

– Taxes are paid at the grower level. Growers will pay $35 per ounce on flower, $10 per ounce on trim or leaf and $5 per immature plant. That’s it. Oregon has no sales tax and no additional excise tax. Many cities and counties are trying to pass additional taxes but the language of Ballot Measure 91 strictly prohibits that (this may very well be a statutory change that happens at the legislative level).

– There is no residency requirement. That means a 100% open market that is not unfriendly to out of state investment.

– This will not dismantle the medical marijuana system in Oregon. That language is in the Ballot Measure and was intended to prevent that from happening through rule-making or the legislative process. Whether the medical market eventually disappears on it’s own is another post.

– There are no limits in the Ballot Measure as to the number of licenses or the size of a grow facility.

– The Ballot Measure makes it very difficult for local jurisdictions to opt-out and ban facilities. In 2014 the Legislature allowed temporary moratoriums on dispensaries through Senate Bill 1531. While they could do that again, it seems unlikely due to the strong language in the Ballot Measure.

– There is going to be an intense rule making process that will take many months. Who will be involved in that is still an unknown. It will likely look like an expanded version of the HB 3460 process. You can watch what that looked like here: http://www.oregon.gov/oha/mmj/Pages/rules.aspx

– Ballot Measure 91 is a relatively simple measure even though it’s a long read. It essentially gives the OLCC  the power to promulgate rules and regulate the cannabis market in Oregon. OLCC has already put up a website and you can subscribe for updates. http://www.oregon.gov/olcc/marijuana/Pages/default.aspx

While there are many unknowns, this is great time to become an owner of a cannabis business in Oregon. If you want to talk about the upcoming changes or are ready to get started please contact us at Emerge Law Group, we can help.

You can read the full text of Ballot Measure 91 here:

 http://ballotpedia.org/Oregon_Legalized_Marijuana_Initiative,_Measure_91_(2014),_Full_text_of_measure,

 

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Support for the ongoing planning process that is managing a business is a big part of why a marijuana business can benefit from a good relationship with its CPA. If having an accountant is new to you, think of him or her as someone that can provide you with an extra set of eyes and ears for your business. The process of checking in with your accountant regularly should help you anticipate financial and tax problems before they threaten to disrupt your business or personal finances.

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Two potential threats to Oregon medical marijuana businesses came to mind when I saw this article published by USA Today: http://www.usatoday.com/story/news/nation/2014/11/03/irs-limits-profits-marijuana-businesses/18165033/

The first is the difficulty of managing reimbursements for a tax liability that may not be calculated until the following year. The second is the ongoing drag on a business that is struggling to pay off back taxes in its second year of operation.

Under The Oregon Medical Marijuana Act (“OMMA”), a medical marijuana business is generally permitted to accept reimbursement for its normal and customary costs of doing business. Presumably that includes taxes.

But, how is reimbursement of tax expense to occur if the taxes (1) are not paid on an ongoing basis and (2) are not even known in amount until the tax return is prepared the following year? It appears that to comply with OMMA, the tax compliance process may need to to be a year-round endeavor. An Oregon medical marijuana business should engage its accountant to help it juggle the sometimes conflicting requirements of the reimbursement model and the Internal Revenue Code.

The business owner mentioned in the USA Today article apparently operated his business at a financial loss in its first year and discovered he was deemed to be profitable under the Internal Revenue Code. As a result, he owed $20,000 of income tax for a business that lacked the cash to pay it. Given the amount owed, it is not surprising he is paying that tax over time (it appears he entered into an installment arrangement with the IRS). However, he would presumably rather use the money to pay his current year tax liability or, better yet, use it to help grow his business.

This article is a cautionary tale, for sure. An Oregon cannabis lawyer, specifically a tax attorney, can help guide you through this process. Knowing up front your tax liability and potential pitfalls can help your cannabis business in Oregon avoid outstanding liability and the ultimate failure of your cannabis business.

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As we get closer to the November election and the potential (likely?) passage of Ballot Measure 91 in Oregon, the most common question we hear asked is, “what is recreational marijuana in Oregon going to look like?”. That question is almost always closely followed by people asking if the recreational licensing and implementation process is going to be like Washington’s I-502 process.

As one of two states with recreational cannabis use, Washington should be a leader in how to implement, and build, a legal cannabis market. But, it’s not. Here’s a pretty great article about some of the big issues. http://www.inlander.com/spokane/more-money-more-problems/Content?oid=2358747 

From problems with under-production to the creation of a new black market, Washington’s I-502 has been a marginally successful program. 

We recognize that every state will have it’s growing pains, but we are very hopeful that Oregon’s legal cannabis market will look and feel different. 

The Seattle Times, in this article http://seattletimes.com/html/localnews/2024709004_oregonmarijuanameasurexml.html lays out some of the fundamental differences between the two states.

Here are a few of our predictions how Oregon will be different, and better:

1. Medical dispensaries in Oregon will be allowed to continue to operate and, if they choose, also get licensed to be recreational dispensaries.

2. Our taxes will be lower. I mean WAY lower. This will prevent the black market from regaining a foothold in Oregon.

3. Oregon will have learned from Washington and license cannabis cultivation facilities before new retail facilities.

4. We will not start from scratch for cultivation. This means that, hopefully, Oregon will allow an opportunity for cannabis cultivation facilities supplying the existing legal dispensary market to apply for a recreational license. This would ensure no lapse in cultivation.

5. We are very hopeful that the OLCC will not limit the number of licenses. Without limits a true free market cannabis economy can develop.

There has always been a rivalry between Washington and Oregon, Portland and Seattle, and, if Ballot Measure 91 passes, we are going to guess that Oregon is poised to be the leader in a sensible recreational cannabis market.

 

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As we are getting closer to the election, we at Emerge are closely following Ballot Measure 91. Ballot Measure 91 would essentially legalize recreational marijuana in Oregon. As a firm representing people in the cannabis industry we, of course, are keeping our fingers crossed that Ballot Measure 91 passes. In addition to doing what we can to help ensure this happens we are also closely watching what local governments are doing to regulate medical marijuana dispensaries.

After House Bill 3460 passed in 2013 creating legal marijuana facilities, municipalities stepped in and began imposing their own regulations. During the 2014 legislative session, Senate Bill 1531 allowed local jurisdictions to impose moratoriums on dispensaries with an expiration date in May 2015. What we saw was a huge number of cities and counties step in and impose those moratoriums. You can see the list here: http://www.oregon.gov/oha/mmj/Documents/SB1531%20Moratorium%20List.pdf

While 1531 has created a brief moratorium, some jurisdictions have gone into overdrive and created local rules banning dispensaries all together. In southern Oregon, the city of Cave Junction took a different position and instead filed a law suit against the Oregon Health Authority and the State of Oregon. This lawsuit specifically sought to address the conflict between state law and federal law. Noelle Crombie at the Oregonian discusses the case here: http://www.oregonlive.com/marijuana/index.ssf/2014/10/medical_marijuana_in_oregon_co.html#incart_river

Avoiding that conflict, Josephine County Circuit Court Judge this week ruled in favor of the city and found that, since there was no specific language in House Bill 3460 disallowing cities and counties from banned marijuana facilities in Oregon, local government could do as they pleased.

This is clearly a blow to the medical marijuana community in Oregon and, as we edge closer to the moratorium expiration, we wonder if more local jurisdictions will attempt to impose permanent bans. However, it is important to note that Ballot Measure 91 DOES contain specific language directing local governments how they can impose a ban – it must be voted on by the people in that jurisdiction and they give up tax revenue. This may leave local jurisdictions in the nonsensical position of banning medical dispensaries serving truly sick people while recreational dispensaries open instead.

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New Brand & Website

Emerge Law Group is pleased to announce the launch of our new brand & website! Throughout our site you will find information about Emerge and our services as well as information on various laws and business practices.

Please get in touch with us with any questions! We can help you with all of your cannabis legal needs!

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