Category Archives: Marijuana

Dazed and Confused

Twenty-eight states and Washington, D.C. legalized marijuana to varying degrees under their respective laws.  As you have heard, though, marijuana remains illegal under federal law. The marijuana sector boomed when the Obama Administration decided to place a low priority on enforcing the federal marijuana laws vis-a-vis marijuana activities under state law.

The federal government still has a hammer in the federal drug laws that could shatter the marijuana industry.  The Trump Administration made statements recently that it may use that hammer on part of that industry.  We will see what happens.

The possible shift in how the federal government handles marijuana highlights that anyone looking to get into, or stay in, the marijuana business must be ready.  The breadth of the federal drug and racketeering laws means that those doing business with or assisting those in the marijuana business could be at risk.  Landlords, suppliers, financiers, and professionals, to name a few, should assess their risks if federal law enforcement changes its priorities.  Ignorance rarely, if ever, works as a defense.

The standard advice stands – go into any business with your eyes open.  Know the regulations and the risks.  Speak with your lawyer, CPA, insurance agent, and others to get the advice you need.  Call us and see how we can help you.

This post provides general information only.  This post is not intended to create an attorney-client relationship or to be legal advice about your situation.  A blog post is not a substitute for legal advice that fits your situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your circumstances.

© 2017 Matthew D. Macy

Dude, Pass the Chips 2

 

Last April, I wrote the post, “Dude, Pass the Chips,” that mentioned a Colorado Court of Appeals decision holding that an employee does not have a claim against his employer for being fired for medical marijuana use. On June 15, 2015, the Colorado Supreme Court issued its decision affirming the Colorado Court of Appeals. You can read the Colorado Supreme Court’s decision  the Colorado Bar website

We now join the conversation in progress between Q and A from “Dude, Pass the Chips.”

 Q:        The Colorado Supreme Court is a buzz kill, man. Why can we be fired for using legal marijuana?

A:        Marijuana may be legal in some contexts under Colorado law, but it remains illegal under federal law. The Colorado Supreme Court said that an employee who uses marijuana in compliance with state law does not have a wrongful termination claim under Colorado’s lawful activities statute, because marijuana use remains illegal under federal law.

Q:        “Lawful activities” statute?

A:        Colorado has a statute that an employer generally cannot fire an employee for the employee’s lawful activities done outside of work hours and not on the employer’s property. There are exceptions, of course.

 Q:        But Colorado legalized medical marijuana and recreational marijuana!

 A:        Again, federal law prohibits any marijuana use outside of a narrow exception for federally approved studies. Colorado’s lawful activities statute does not limit the definition of “lawful activities” to activities deemed lawful under state law. Since federal law criminalizes marijuana use, its use is not a “lawful activity” under the Colorado statute. Some states with medical marijuana or similar laws included employee protections, but Colorado did not.

 Q:        But other states, even Georgia, are legalizing some form of medical marijuana. Doesn’t that count for something?

A:        It means public attitudes are changing.  Even so, federal law still classifies the use of medical marijuana and recreational marijuana as crimes. What is that smell?

Q:        I made brownies. Want one?

A:        What is in it?

Q:        Are you a cop? 

A:        I will pass, thank you.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your situation.

 

 

Marijuana Legalization is Growing Like Kudzu

Georgia is set to join the 23 states and the District of Columbia that legalized what is called medical marijuana. The Georgia Assembly passed Haliegh’s Hope Act near the end of its recent session. Haliegh’s Hope Act legalized under state law the use and possession of “low THC oil” to treat certain conditions and for medical research. The Act is on the Governor’s desk and the Governor is expected to sign it into law.

The fight over marijuana legalization invokes images, such as:

pot combo 1

Spin set aside, legalization at the state level creates a conflict with federal law because federal law still criminalizes marijuana regardless of the intended use. The fuel for the legalization movement came in 2009, when the federal government took a hands-off approach to medical marijuana used under state law.  The feds loaded its announcement with caveats that the feds still can enforce the federal laws that criminalize marijuana.

Existing case law is that federal drug laws trumps state laws legalizing medical marijuana. As a result, banks, for example, resist knowingly doing business with them because of federal drug, money laundering, and RICO laws. Anyone else who does business with the marijuana operations faces similar risks, regardless of the state law.

The spreading of legalization has spurred new court challenges over the conflict between federal law barring marijuana and state laws permitting marijuana use.  The states of Oklahoma and Nebraska sued Colorado over its marijuana legalization in late 2014. A group of sheriffs from Colorado, Nebraska, and Kansas filed a separate suit in 2015 against Colorado over the state laws permitting marijuana.

Individuals are getting into the act, too.  Debtors who filed for bankruptcy in Colorado had their case tossed because the debtors wanted to use their medical marijuana business to fund the bankruptcy plan. The bankruptcy court rejected the case because the bankruptcy trustee cannot use illegal income to fund a plan, and a medical marijuana business remains illegal under federal law. The debtors appealed their case to the 10th Circuit Court of Appeals, arguing that the feds hands-off approach means the trustee can use the medical marijuana income to fund a bankruptcy plan. That case remains pending.

An earlier blog post (Dude, Pass the Chips) discussed a case pending in Colorado over whether an employee can sue his employer for wrongful termination after the employee failed a drug test because the employee used medical marijuana as allowed by state law. The Colorado Court of Appeals answered “no” and the employee took the case to the Colorado Supreme Court. The Colorado Supreme Court has not issued a ruling as of this post.

Also in 2015, a bipartisan trio of U.S. Senators made a proposal to move marijuana from Schedule 1 to Schedule 2 under the federal Controlled Substance Act, among other changes. A Schedule 2 substance can be prescribed after it meets certain standards, but a Schedule 1 substance generally cannot be prescribed legally at all. Testing whether marijuana actually has medical benefits makes sense. If it works, let doctors prescribe it as with any other drug.

Will we see marijuana sitting on pharmacy shelves along with narcotics, antibiotics, and other drugs? Will marijuana join alcohol and tobacco (Marl-bud? Camel Green?) on store shelves, or will the growing legalization movement be snuffed out? Grab some chips and brownies; it will be an interesting show, dude.

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation. Laws change and your situation may be different. You should consult with a licensed attorney for legal advice specific to your circumstances.

Dude, Pass the Chips

Some people are excited that legalizing marijuana is gaining traction at the state level.  However, marijuana remains illegal under federal law even if it is for “medicinal” use.  The tug-o-war between state and federal law over the legalization of marijuana raises questions for those in Colorado.  Grab some snacks to satisfy the munchies as you enjoy the following question-answer session.

Q:  Can I lose my job for smoking pot at home on my own time?

A:  The answer in Colorado is a qualified “yes.”  The Colorado Court of Appeals ruled that an employer may terminate an employee for “medical” marijuana use.  The Colorado Supreme Court is reviewing that decision.  If you want to read more, I wrote an article for The Colorado Lawyer about medical marijuana and employment law that you can find here.

Q:  I have a warehouse I want to lease to a marijuana business that is illegal under state law.  Is this a good idea?

A:  Are you high?  That is a terrible idea.  Do you like prison?

Q:  I am too pretty for prison.  I will lease the warehouse to a marijuana business that is legal under state law.  Happy now?

A:  You are not out of the woods.  Marijuana remains illegal under federal law and federal drug laws can trump state drug laws.  The current approach by the feds to marijuana businesses that comply with state law can change at any time.  If that happens, anyone involved in the business could face prosecution and efforts by the federal government to seize property.  You had better take a hard look at whether that anvil could land on your head.  You also should find out what other risks are involved.

Q:  Stop harshing my mellow, man.

A:  Sorry.  So long as marijuana remains illegal under federal law, getting involved with that business carries additional risks.

Q:  Do you have any good news?

A:  Yes.  I brought you some bags of Cheetos.

Q:  Excellent, dude!

This post provides general information only and is not intended to create an attorney-client relationship or to be legal advice about a specific situation.  Laws change and your situation may be different.  You should consult with a licensed attorney for legal advice specific to your situation.