Where Marijuana Comes From

 

In my medical marijuana and the ADA blog entry, I discussed the Massachusetts Supreme Court opinion holding that medical marijuana use may be a reasonable accommodation for a person with disability. That blog entry leads to a corollary question:  is a legal medical marijuana dispensary/place of business (hereafter, dispensary), subject to title III of the ADA? After all, what they are selling at the dispensary is illegal under the Controlled Substances Act, which makes possession of marijuana a crime regardless of whether it is prescribed by a physician for medical use. On the other hand, 90% of States have medical marijuana laws, and there are States where marijuana is legal for everyone. So, let’s say you have a medical marijuana dispensary, do you have to worry about title III of the ADA at all?

Before proceeding further with that, if you think about it, anybody needing a prescription for medical marijuana is going to be a person with a disability. So, as a matter of good business sense, it makes sense for a marijuana dispensary to comply with title III of the ADA just for the sake of servicing its customers.

Of course, that doesn’t answer the question of whether a perfectly legal marijuana dispensary under State law has to comply with title III of the ADA. I would argue that a legal marijuana dispensary does indeed have to comply with title III of the ADA for the following reasons. First, a marijuana dispensary sells marijuana and therefore, is a sales or rental establishment under 42 U.S.C. §12181(7)(E). Second, the owner of the marijuana dispensary property obviously owns, operates, leases, or leases out the property per 42 U.S.C. §12182(a). Third, the marijuana dispensary is engaged in interstate commerce per 42 U.S.C. §12181(1) because it undoubtedly engages in interstate commerce by either conducting trade, traffic, commerce, transportation, or communication: (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country. Finally, nothing in title III of the ADA says that a place of public accommodation’s classification depends upon whether what it sells is legal under federal law.

Are there contrary arguments? Barbuto suggests one, though I don’t know if the argument would prevail in court. That argument is the owner, operator, lessor, or lessee of a marijuana dispensary is possessing marijuana and probably (I am not a criminal lawyer), aiding and abetting its possession as well by permitting customers in its store buy the marijuana. So, therefore, since the product is illegal. It would be against public policy to classify it as a place of public accommodation under title III of the ADA.

In short, as a matter of preventive law and quite probably as a matter of law as well, if your business is a marijuana dispensary, you would be wise to comply with title III of the ADA. It also makes good business sense.

 

 

3 Responses to Marijuana dispensaries and Title III of the ADA

I think you’ve got it right. I can’t see any public policy benefit to limiting places of public accommodation to exclude illegal enterprises. We are happy to collect taxes on illegal sales of drugs, so why not apply the ADA as well.

A colleague of mine and I have been back channeling on this particular entry. This is a colleague whom I respect a great deal, and I am always referring cases to him as well as picking his brain on things. He asked me to consider whether my views would change in light of the concepts of a qualified individual with a disability and/or the exception to an individual with a disability contained in 42 U.S.C. §12210. See also, James v. The City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) It was a fantastic point and really caused me to dig into the trees. Upon further review (after all the NFL is starting up), my decision is the same and here is why:

1. The term qualified individual is actually not a term contained within title III of the ADA. That said, since title III does talk about fundamental alteration, I have written for years that as a practical matter the term does apply. If the term does apply, then one would be asking what were the essential eligibility requirements of the business. The answer to that question for a marijuana dispensary would not include a prohibition on the use of illegal drugs since most of its customers would in fact be users. Therefore, assuming the qualified concept applies, a user of marijuana would meet the essential eligibility requirements for accessing a title III marijuana dispensary.

2. The main blog entry assumes that the place is legal under state and local law. That was not the case in James where municipal law prohibited marijuana dispensaries in their jurisdiction and plaintiffs were suing under title II of the ADA.

3. The ADA at 42 U.S.C. §12210 does have a current user exception (i.e. a person would not be an individual with a disability in that case), applicable across all titles of the ADA. However, for that exception to apply the covered entity must be acting on the basis of such use. That is an important point here because the covered entity when it comes to title III accessibility would not be acting on the basis of the use of marijuana but rather would be just discriminating generally against persons with disabilities.

4. It is an open question as to whether other courts will follow James as the dissent made very salient points. In particular, the grammatical structure of 42 U.S.C. §12210(d)(1) strongly suggests that an individual with a disability could be a person using otherwise illegal drugs so long it is under the prescription of a doctor. Also, legislative history supports that premise. Finally, if there is a conflict between the ADA and the Controlled Substance Act, the ADA would prevail as it is the most recent law.

So, in light of this, I am going to stick with my original position. While ¶ 4 above is informative, the key for me is that a title III entity running a marijuana business legal under state and local law would not be discriminating based upon the current use but rather discriminating on the basis of disability in general.

Thank you for this important line of discussion.

The marijuana industry is lacking input from professionals with expertise in the field of disabilities. This is horribly evident in the recent bill on recreational marijuana signed into place by the governor of Massachusetts. The bill includes substantial language on diversity; ethnic, racial and gender, but in no place are there discussions/references to the largest and most vulnerable … diverse group, the disabled. There are assurances in the bill for economic consideration/employment/licensing/representation in the new industry for ethnic, racial and gender groups, but not disabled. The federal government recognizes disabled as a protected class of diversity, but the state of Massachusetts does not. This was confirmed by the state treasurer’s office in discussions about inclusion of disabled in the evolving industry of recreational marijuana.

The marijuana industry media is reporting that the industry does not have to comply with federal ADA regulations. https://www.leafly.com/news/industry/how-to-make-marijuana-dispensaries-disability-friendly ” However, because cannabis is still federally restricted under the Controlled Substances Act, there is no federally-mandated law that states dispensaries are required to adhere to the Americans With Disabilities Act. This means medical marijuana patients are not only at risk of losing their job and/or government assistance benefits due to state-legal cannabis use, the dispensaries they visit are also not required to make accommodations for them.”

Thank you for supporting information that benefits the disabled.

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