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38 | jpm® | Sep.Oct 2014

spotlight / New Legislation

Under the Controlled Substanc- es Act, signed into law by Presi- dent Nixon, marijuana has a clas- sification of Schedule I, which is reserved for drugs deemed not to have any accepted medical use, as well as a high potential for abuse. Under the federal law, Schedule I drugs cannot be prescribed. While this designation has remained in place since the CSA’s enactment in 1970, state legislatures have taken it upon themselves to enact legis-

The ongoing nature of the debate over the legality of medical marijuana and how it should be regulated leaves a wide array of questions for prop- erty managers. With such a complicated and dynamic issue, it is critical that property managers are aware of the specific laws in their state, and to stay up to date on legislative and regulatory actions.

Since its usefulness in treating conditions such as insomnia, chemother- apy-induced nausea and multiple sclerosis, medical marijuana has become an important, and sometimes contentious, legislative issue at the local, state and federal level. Despite the fact that using marijuana for any purpose is prohibited by federal law, an increasing number of states have legalized medical marijuana to varying degrees, leaving many questions regarding the degree to which federal law is enforced, as well as its appropriate use and regulation. PH

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MEDICAL MARIJUANA: STATE LAWS VERSUS FEDERAL LAWS, AND HOW THEY AFFECT PROPERTY MANAGERS

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New Legislation / spotlight

tration, however, signaled a slight shift in direction regarding federal en- forcement activity, as evidenced by a memo issued by the Department of Justice (DOJ) in 2009. In the memo, the DOJ offers guidance to its U.S. At- torneys and law enforcement agencies on where to focus their enforcement resources and efforts, and stresses that strict enforcement and prosecution of those who are in compliance with their corresponding state laws should not be a priority of the DOJ. Moreover, in advising when large marijuana op- erations should be prosecuted, the memo stresses for prosecutors to consider if the operation is in compliance with a strong and effective state regulatory system.

Of course, the memo serves as a guide for DOJ officials and not an official policy. As such, there are still conflicts that arise in the federal enforcement of the Controlled Substance Act. For example, in Montana in 2012, a land- lord was arrested and eventually sentenced to one year in prison for renting out space to medical marijuana growers, despite being in compliance with state laws. While this case does not necessarily indicate a national trend of federal enforcement actions against the landlords whose tenants grow medi- cal marijuana, it does call attention to the underlying conflict between the federal law and state laws, as well as the real estate industry’s critical stake in the issue.

As long as the federal government maintains marijuana’s classification of Schedule I, conflicts between state and federal law will almost certainly continue. On the national level, the House of Representatives voted 219–189 in favor of legislation which would prevent the federal government from in- terfering with states’ ability to regulate medical marijuana. During the Sen- ate’s consideration of appropriations for the Department of Justice in June, two amendments were proposed which would similarly seek to prevent the DEA from enforcing its ban on medical marijuana. While the show of sup- port and recognition is encouraging for proponents of medical marijuana, as well as those seeking clarity on the issue, the bill likely has little chance of becoming law. IREM legislative statements of policy regarding residential smoking, smoking in the workplace and combating drugs in rental housing, stress the need for discretion on the part of property managers in determin- ing if the use or cultivation of medical marijuana should be allowed on their property.

The issue of smoking indoors is particularly pertinent for property man- agers, as marijuana emits a strong aroma that can be disruptive for neigh- boring tenants. Also, secondhand smoke from marijuana can have serious health effects. IREM legislative statements of policy on residential smoking and smoking in the workplace, state that property managers, in the absence of federal, state or local laws, should decide what is in the best interest of their occupants and the maintenance of their property.

Our statements of policy can be found online at www.IREM.org/public policy.

MIKE TONER ([email protected]) IS GOVERNMENT AFFAIRS LIAISON FOR IREM HEAD- QUARTERS IN CHICAGO.

lation in response to the public’s growing acceptance of medical marijuana. Since California first legalized medical marijuana by passing Proposition 215 in 1996, 22 more states and the District of Co- lumbia have followed suit.

Throughout each state’s version of medical marijuana legislation, there are important differences regarding protections for patients and doctors, and how its use, cul- tivation and possession are regu- lated. For example, according to the National Conference of State Legislatures, Alaska allows for possession of one ounce and six plants, without any legal protec- tion from arrest. In Oregon, how- ever, patients can possess up to 24 ounces and 15 plants, with quali- fied patients being protected from prosecution. Moreover, there are a wide range of qualifications for patients to be prescribed medical marijuana throughout the U.S. In California’s Proposition 215, quali- fying ailments include AIDS, ar- thritis and cancer, along with the more general ailment of “chronic pain”—and finally, “any other ill- ness for which marijuana provides relief.” In contrast, New Mexico’s law does not include ambiguous language like California’s, and is limited to well-defined ailments.

The federal government has tra- ditionally taken a tough stance on medical marijuana, and following the passage of California’s legisla- tion legalizing it, the Clinton Ad- ministration stood firm that using, possessing or prescribing marijua- na was in violation of federal law, and stepped up policing efforts in California. The Obama Adminis-

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