Phil Querin Q and A - Oregon’s Joint Venture (Legalization of Marijuana) – How Will It Affect Community Owners? What you need to know about POT Legalization and Your Community.

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November 19, 2014
Phil Querin
Attorney

Oregon’s Joint Venture (Legalization of Marijuana)  – How Will It Affect Community Owners?  What you need to know about POT Legalization and Your Community

 

Measure 91 – High Times for Oregonians.  According to OregonLive.com, here, there are 23 states that currently have medical marijuana laws on the books. Oregon was one of them. On November 4, 2014, Oregon joined a smaller group of pot-friendly states (Washington, Colorado, Alaska, and the District of Columbia), to permit the recreational use of cannabis.[1]  I will leave it to the wordsmiths to explain how the term “recreational use” found its way into our lexicon when discussing the use of marijuana.  “Recreation” is the last thing one thinks about when taking a toke – or so I’m told….  

 

State and Federal Laws. The Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., says that marijuana is illegal to grow, process, distribute, and possess, even when state law authorizes its use. Furthermore, federal law supersedes state law where there is a direct conflict between them.  That would seem to suggest that federal law, being more restrictive, would trump Oregon law.  However, this is not the case.

 

HUD and the Oregon Bureau of Labor and Industries, both of whom enforce fair housing violations, including discrimination based upon disabilities, have taken a laissez faire, or “hands off” approach, i.e. they are not enforcing the laws at the current time.  Accordingly, it is my belief that on both a state and federal level, landlords may properly prohibit growing, processing, distribution and possession of marijuana, even though the user holds a valid medical marijuana card. This opinion was extensively covered in my two articles, here and here.

 

How Are Landlords Affected by Measure 91?  Now that Oregon has legalized recreational use of pot, how does this change the equation for community owners?  The short answer is that it does not change the issues.  If anything, dealing with the use of recreational pot is the easy part.  The substance can be controlled, should an owner so desire, by a rule change, prohibiting the cultivation, processing, sale or use of marijuana within the community. 

 

The issues surrounding the legal use of medical marijuana, i.e. by card-carrying tenants, remains the same, i.e. can a park owner prohibit it?  I believe the answer is “Yes.”  But before explaining how, let’s look at the new law that everyone is toking talking about.

 

Oregon’s New Marijuana Law. An interesting article gleaned from a website called “The Daily Chronic” contains and interesting, though not exactly unbiased, analysis of Measure 91, here.  What follows is a short summary taken from the longer article:

·      It passed by 57% to 43%;

·      Public consumption of pot is prohibited;

·      The Measure does not go into effect until July 1, 2015;

·      Until that time, possession of less than one ounce of marijuana remains a misdemeanor and is subject to a fine of up to $650;

·      You must be 21 or older to possess marijuana;

·      Homemade cannabis extracts (when made with solvents)[2] are prohibited, i.e. one may not produce, process, keep, or store them;

·      Up to 1 ounce of cannabis extracts are permitted, but only if they are obtained through a licensed retailer;

·      Cultivation of up to four plants per household is permitted,[3] but they may not be visible from a public space;[4]

·      The Oregon Liquor Control Commission (“OLCC”) is in charge of regulating commercial cannabis cultivation, processing and retail sales;

·      Of course, there is a tax levied on sales. It is paid by the producers;

·      There are four types of businesses Measure 91 will license:

o   Producers, who will cultivate the pot;

o   Processors, who purchase it from the producers and convert it into assorted products with names, colors, flavors, and scents, reminiscent of the UC Berkley campus circa 1968;

o   Wholesalers, who purchase the pot and pot products for sale to retailers; and

o   Retailers, who will sell directly to consumers.

Sample Policy.  As mentioned above, I believe that community owners may both prohibit the cultivation, processing, retailing, selling and use of pot, inside the community, regardless of whether the user has a lawfully issued marijuana card.  This can be done prospectively, by including the prohibition in the Statement of Policy, the rules, and/or the rental agreement.  It can also be done by a rule change that affects the residents already in the community.  However, I do not believe it may or should be done retroactively to those legal card holders already in the community. Here is a sample policy:

Sample Cannabis Policy For A Rules Change

[To be enacted pursuant to ORS 90.610(3)]

 

Background. Under the Federal Controlled Substances Act, 21 U.S.C. § 801, et seq., it is illegal to manufacture, distribute, and possess marijuana, even when state law authorizes its use. In Oregon, medical use of cannabis is legal, subject to the limitations set forth in ORS 475.300 to 475.342.  Federal law supersedes state law where there is a direct conflict of laws.  The Federal Fair Housing Amendments Act provides that a disability does not allow the illegal use of a controlled substance under the Controlled Substances Act.

 

Our Policy. All Residents, their guests, invitees, contractors, employees, and others coming to the resident’s home, space, or common areas in the Community, are subject to the following rules regarding the manufacture, processing, distribution, sale or use of cannabis, or  for any purpose, including medical purposes.

 

Prohibition.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.

 

Reasonable Accommodation.  This Community will not agree to make a reasonable accommodation for this prohibition, including medical purposes, to any residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Laws.

 

Violation. Violation of this policy shall constitute a breach of the terms of Resident’s right of occupancy, and entitle Management to issue Resident a thirty (30) day curable notice of violation under ORS 90.630(1).  A repeat violation will result in a twenty (20) day non-curable notice of violation under ORS 90.630(4).  Resident is responsible for informing their guests, invitees, contactors, employees or others coming to Resident’s home, space or common area guests of this Policy and for ensuring compliance.  Notwithstanding the preceding, Management reserves the right, upon its sole discretion, to issue Resident a non-curable 24-hour notice of violation under ORS 90.396 if Resident’s violation of this policy could reasonably result in danger to the health, safety or welfare of others in the Community. 

 

Effective DateThis Policy shall apply from and after _______________________ (“Effective Date”), until modified or amended.  It shall not be applied retroactively to any current Resident whose legal use of cannabis, or cannabis products or extracts for medical purposes, preceded the Effective Date.

 

The above sample policy can be added as an Addendum to Rental or Lease Agreements and given to prospective tenants, as well. It is sufficient to insert into the Statement of Policy, the following:

 

Marijuana.  This Community strictly forbids the manufacture, processing, growing, distribution, sale or use of cannabis, or cannabis products or extracts, for any purpose, including medical purposes. Resident is responsible for informing their guests, invitees, contractors, employees, and all others of this Policy.  This Community will not agree to make a reasonable accommodation for this prohibition, including for medical purposes, to any Residents, their guests, invitees, contactors, employees or others coming to the Resident’s home, space or common area, based upon the State or Federal Fair Housing Act.

 

 


[1] The World Health Organization defines cannabis here, as follows: Cannabis is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa. The major psychoactive constituent in cannabis is ∆-9 tetrahydrocannabinol (THC). Compounds which are structurally similar to THC are referred to as cannabinoids. In addition, a number of recently identified compounds that differ structurally from cannabinoids nevertheless share many of their pharmacological properties. The Mexican term 'marijuana' is frequently used in referring to cannabis leaves or other crude plant material in many countries. The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids obtained by solvent extraction of the crude plant material or of the resin.

[2] For those truly interested in the extraction process using solvents, go to the following link, here.

[3] In other words, a four member household (all 21 or over) would not qualify for 16 plants.  The same rule applies to the right to possess up to one ounce of extracts. There is no multiplier effect.

[4]  I suspect that in community where the backyards are fenced, growing would be permitted so long as they were obscured from the streets and sidewalks.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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