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Lawsuit defies Fairview pot ban

PMG FILE PHOTO - Fairview has banned growing marijuana plants like the ones shown here. Fairview’s city-wide ban on medical marijuana grow operations faces a new legal challenge — not from farmers, but from a local landlord who was forced to evict four cannabis growers.

Gary Troutner, the sole owner of Eastwinds Industrial Park, sued the city on Monday, June 27, after he was forced to evict four tenants from his property at 21414 N.E. Sandy Blvd. in Fairview.

The complaint, filed by Portland attorney Bear Wilner-Nugent, argues that Oregon state law supersedes Fairview’s municipal code and asks for an injunction against the city.

“It’s a legal issue, not a factual issue, so that means the judge can (make a decision) on pure issue of law,” Wilner-Nugent said. “It’s really cut and dry.”

Troutner is currently suffering $4,170 in monthly lost rent, according to the suit. He was forced to evict his tenants after Code Compliance Officer Rita Humphrey inspected his property on March 11. The lawsuit states that Troutner was never directly involved with the medical marijuana production.

Leland R. Berger, an attorney and owner of Oregon CannaBusiness Compliance Counsel, said Fairview might rely on the League of Oregon Cities or the Association of Oregon Counties for legal support.

“The way Bear’s case may develop is, you go in saying, ‘You can’t do this, state law preempts city law,’” said Berger, who is not involved in the case. “And then the city says, ‘Well, federal law preempts state law.’”

“It does not,” he continued, “but it’s challenging for trial judges, especially in rural districts, to rule against municipalities.”

Fairview’s anti-marijuana ordinance, which prohibits both recreational and medical marijuana businesses, is already slated for the November ballot. Voters could reject or approve the ban, though it’s unclear what effect that would have if Multnomah County Circuit Court sides against the city.

Fairview has referred the case to city attorney Ashley Driscoll, who did not immediately respond to requests for comment. Troutner declined to comment as well.

“Ultimately, it’s going to be resolved in the appellate courts,” Berger said. “If Bear wins, the city will take it up. And if the city wins, I’m pretty sure Bear will take it up.”

In 2014, 55 percent of Fairview voters approved Measure 91, which legalized recreational marijuana in Oregon.