Judge gives MaryJane's Attic greenlight to re-open

, Posted: Wed, March 26 2014 at 5:41 PM, Updated: Thu, March 27 2014 at 10:57 PM

Medford, Ore. -- On Wednesday morning Marlene Nuckols waited nervously outside a Jackson County courtroom. She owns MaryJane's Attic which sells locally-made products and MaryJane's Basement which provides cannabis for medical marijuana cardholders.

The shop was shut down last week by the City of Medford. Medford police said her store was operating illegally by dispensing medical marijuana. As a result, her business license was pulled. 

MaryJane's Attic to re-open under one condition

However, on Wednesday morning Jackson County Circuit Court Judge Timothy Gerking ruled that MaryJane's Attic can re-open while he reviews last week's Medford City Council decision. However, there was one condition. No medical marijuana is to be distributed.

"Right now they're not going to be allowed to sell, distribute or otherwise disseminate medical marijuana or other controlled substances," said Judge Gerking.

"MaryJane's Attic will be able to reopen, currently not the basement right now ... I can get back to buying merchandise from local crafters ... That's good news," said Nuckols.

The fight to be continued

However this won't be the end of Nuckols' roughly six-month long fight to keep operating.

"I'm going to order that the writ be issued," said Judge Gerking.

That means he'll look over the Medford City Council's decision to revoke Nuckols' business license.

Controversy in the courtroom

During the court proceeding Judge Gerking mentioned Oregon Supreme Court case Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries where a ruling found federal law preempts Oregon's medical marijuana law. Gerking said the case was persuasive.

"I think the parties need to be aware of my viewpoint," he began.

"Having read the Emerald Steel case that in all likelihood I'm going to find that federal preemption applies here and that the Federal Controlled Substances Act preempts the Oregon Medical Marijuana Act and that a city exercising it's lawful ... right to regulate business activities within its jurisdiction is not required to license this type of operation," Gerking said.

He continued that he was therefore denying the City of Medford's motion to dismiss because federal preemption was not the focus of the motion.

"I don't think I can rule on my own motion to dismiss this petition," said Gerking about Nuckols' request to remain open.

Nuckols' attorney Leland Berger later brought up a concern relating to Judge Gerking's ability to be fair.

"It's awkward for me to ask this judge, but I need to ask whether given that you ... raised this prejudgement on this issue whether you feel you can be fair to me and my clients on this question," said Berger.

Gerking replied that the Oregon Supreme Court case he was referencing was simply persuasive.

A positive outlook

After court, Nuckols said she feels positive about the outcome.

"We're moving in the right direction," she said.

It's unknown exactly when MaryJane's Attic will re-open but it's expected this week.

What's next?

The next hearing is scheduled for May 7th at 9:30 in the morning. That's when the judge will come to a decision on whether or not the Medford City Council was correct in revoking Nuckols' business license.

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