Oregon’s Ballot Measure 119: Time’s Almost Up?

4 days ago mqfnmymy

Hopefully this is the penultimate time I’ll write about Ballot Measure 119. Hopefully, some three weeks from now, I’ll publish one last post explaining that this landgrab initiative was annihilated, judicially speaking.

The recent Federal Court hearing

On April 29th, Judge Michael H. Simon heard arguments from the UFCW 555 and the Oregon Department of Justice, on the one hand, and two OLCC licensees, on the other, as to why BM 119 must or mustn’t stand. I didn’t attend the hearing, but trusted sources on both sides advise me that Judge Simon was skeptical of arguments that BM 119 is not preempted by the National Labor Relations Act. In other words, this thing is teetering.

If you’re a supporter of local journalism, you can read a pretty good synopsis of Tuesday’s showdown here at Oregon Live. If you’re a cannabis business that cannot hurdle the paywall, the most important takeaway is that Judge Simon promised a ruling before May 22, when the OLCC license for one of the challengers expires.

Something the Oregon Live article doesn’t explain is that Tuesday hearing was a consolidated affair. Originally, the challengers had sought a preliminary injunction (freezing the requirements of BM 119) prior to any ruling on the merits. That plea was later bundled with Tuesday’s “merits” hearing, such that Judge Simon’s ruling will be the final word in this case– absent any appeal.

I’ve explained enough about the merits of this case in prior posts (linked below)—and probably more than I should’ve endeavored, given that I’m no Constitutional or labor lawyer. So I’ll dispense with further legal analysis here. I do think it’s worth surveying the lay of the land for OLCC licensees, until we get a ruling.

What this means for license renewals

I explained on March 13 that OLCC isn’t processing renewals for licensees that don’t produce a signed labor peace agreement (LPA). But they aren’t taking action against those licensees, either. OLCC has been slow-playing this thing, in essence, allowing the judicial process to play out such that non-compliant businesses may come back into compliance without ever having to sign an LPA, once Judge Simon rules, as a matter of law.

The notices OLCC gives in the case of non-renewal are putting a scare into some operators, because they read, in part, “we cannot process your license renewal until you have uploaded a signed [LPA] or attestation….”.  That’s just OLCC walking the line on what BM 119 requires the Commission to do. Again, no one is being run down for continuing to operate in the context of non-renewal for want of LPA.

What this means for license sale transactions

On March 13, I also explained that OLCC hadn’t yet determined what it would do with OLCC licensees in the buy-sell context. At that time, the Commission was still getting advice from DOJ on the issue.

I spoke with the Compliance Director a few weeks back, and she confirmed that OLCC has been advised not to process these transactions if the buyer does not have an LPA or attestation. So, they are not. This means that any buyer halfway down the pike on deal needs to either: a) hold their nose and provide an LPA/attestation; or b) slow walk the deal, if possible, for the next three weeks or so.

Conclusion

I liked when the BM 119 proponents snuck a Rickroll in the measure. But that’s about it. I expect that we’ll get a ruling pretty soon that BM 119 is a goner. Judge Simon’s findings are likely to mirror the analysis that Legislative Counsel put together in 2023 (see here and here), when UCFW 555 failed to push this thing through as a bill.

If Judge Simon does rule as expected, this whole thing will have been a waste of taxpayer money. That would be quite curious, in the sense that taxpayers voted for BM 119 in the first place. I just hope that our cannabis industry clients aren’t stuck with it.

For past coverage on the BM 119 morass, check out the following:

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