Phil Querin Q and A - Resident Demands to Plant Marijuana in Space For Medical Marijuana Business

Want access to MHCO content?

For complete access to forms, conference presentations, community updates and MHCO columns, log in to your account or register.

December 17, 2014
Phil Querin
MHCO Attorney

Question: A resident whose business is a medical marijuana store in town has informed the manager that she plans on growing marijuana plants on the space. She has not indicated if this is for sale, medical, or her own use. The community has not updated their rules to implement a No Marijuana policy, but they do say that there are to be no businesses in the park. The rental agreement is several years old so it is mute on the issue of marijuana.  What should the manager do? What are the landlord's rights?         

Answer.  ORS 90.630(1) provides as follows:

 

(1)Except as provided in subsection (4) of this section, the landlord may terminate a rental agreement that is a month-to-month or fixed term tenancy for space for a manufactured dwelling or floating home by giving to the tenant not less than 30 days notice in writing before the date designated in the notice for termination if the tenant:

(a)Violates a law or ordinance related to the tenants conduct as a tenant, including but not limited to a material noncompliance with ORS 90.740 (Tenant obligations);

 

The exception found at subsection (4) says:

 

The tenant may avoid termination of the tenancy by correcting the violation within the 30-day period specified in subsection (1) of this section. However, if substantially the same act or omission that constituted a prior violation of which notice was given recurs within six months after the date of the notice, the landlord may terminate the tenancy upon at least 20 days written notice specifying the violation and the date of termination of the tenancy.

 

The rules prohibit running a business inside the community.  I suspect that the local zoning ordinances do as well.  So if the resident intends to run the same type of business as in town, in her home, it would likely violate both the park rules and the local land use ordinances.  I also suspect that by whatever name she describes it, she is in the business of selling marijuana from her home.

 

The fact that she may hold a medical marijuana card permitting this activity does not persuade me that it is a ticket to place her grow site operation in a location that violates the park rules or the local land use rules.

 

On the State of Oregon website describing the Medical Marijuana Dispensary Program, here, it provides that:

 

The law requires the Oregon Health Authority to develop and implement a process to register medical marijuana facilities, which must be located on property zoned for commercial, industrial, mixed use or agriculture uses only. The issue of whether a local government believes a certain type of business should operate within one of these zones is a local government decision.

 

On March 19, 2014, Senate Bill 1531 was signed into law. SB 1531 gives local governments the ability to impose certain regulations and restrictions on the operation of medical marijuana dispensaries, including the ability to impose a moratorium for a period of time up until May 1, 2015. The law also authorizes the Oregon Health Authority to issue refunds upon request to dispensary applicants whose facilities are located in an area that falls under a moratorium.

 

Update:

Read the list of cities and counties that have enacted a moratorium on medical marijuana dispensaries. The Medical Marijuana Dispensary Program was last notified by a city or county of changes to this list on 5/21/14. This list includes only cities and counties that have submitted documentation of a moratorium to the Medical Marijuana Dispensary Program, consistent with the rules implementing SB 1531. The Oregon Health Authority is only authorized to offer a full refund to applicants and licensees whose dispensaries are located in an area named on this list.

 

Before going into battle with this resident, I suggest that you ask that she describe for you, in writing, exactly what she proposes to do, so that you can better understand and evaluate it.  Once you fully understand the business model, you will be in a much better position to know whether her plans will constitute a violation that you may enforce. But remember, your remedy under ORS 90.630(1) and (4) is to give her a 30-day notice and opportunity to cure.
 

Based upon the state requirement that the grow site operation be consistent with local zoning laws, I do not view this as a fair housing issue.  And based upon my prior MHCO articles on this subject, I do not believe the Oregon Bureau of Labor and Industries (the state’s fair housing enforcement arm) would pursue your denial of the resident’s request for a reasonable accommodation (i.e. permitting you to “bend” the rules, and ignore the land use laws).

Location Tags: