Author Archives: Jorge Pereira, Esq.

About Jorge Pereira, Esq.

I was born in Portugal and raised in Bethlehem after immigrating with his family to the Lehigh Valley at the age of 2. I attended Rutgers University, New Brunswick graduating with B.A. in Political Science and a minor in Psychology. After graduating with honors from Rutgers University, I attended Rutgers-Newark Law School. While at Rutgers-Newark Law School, I was part of Appellate Moot Court, Urban Legal Clinic and the Animal Rights Clinic. Upon graduating Rutgers-Newark Law School Law, I initially practiced at a small boutique law firm in Newark, New Jersey but always maintained a desire to return to his home in the Lehigh Valley. I spent the last eighteen years working in civil litigation and personal injury law firms in the Lehigh Valley. For the last sixteen years, I has worked at an Allentown law firm, The Law of Business, P.C. f/k/a Douglas M. Marinos & Associates, P.C. focusing on business divorce, corporate law, creditor’s rights and general civil litigation. I am a member of the Pennsylvania and New Jersey bars and admitted to practice in the United States District Court of Pennsylvania for the Eastern District and the United States District Court of New Jersey. I have litigated cases throughout the Courts of Common Pleas of Eastern Pennsylvania from Susquehanna County to Philadelphia County and represented both debtors and creditors in the United States Bankruptcy Court for the Eastern and Middle District of Pennsylvania. As counsel for Sovereign Bank, I wrote the appellate brief in the precedent setting decision in the matter of Sovereign Bank v. Schwab, 414 F.3d 450 (3rd Cir. 2005). I am an avid cigar smoker and a founding member, board member and former officer of the Lehigh Valley Cigar Club, a non-profit social club with over 200 members dedicated to protecting and promoting the enjoyment of cigar smoking in the Lehigh Valley.I played Rugby for ten years on the men’s team of the Lehigh Valley Rugby Football Club, becoming a captain of the men’s team, and President of the club. I own a commercial building in the historical district of Main Street, Bethlehem where my business partner and I own a hair salon, Hair Studio Main.

Protection Consumers Have Under Federal and State Law From Creditors and Debt Collectors.

If you have defaulted on your credit card obligations or other debts, you have likely been subjected to calls and letters and from debt collectors, attorneys, and/or creditors threatening legal action if you don’t pay. What many may not realize is that as a debtor you are afforded protection from unfair debt collection practices under federal and state law.

The Fair Debt Collection Practices Act (“FDCPA”) is a federal consumer protection statute that prohibits harassing abusive, deceptive, and/or unfair debt collection practices by debt collectors at any point in the debt collection process, including during pleadings and post judgment conduct. See 15 U.S. Code §1692. The FDCPA protects all consumers from debt collectors attempting to collect debt arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. See 15 U.S. Code §1692a.

A debt collector includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. While creditors are not included in the definition of a debt collector unless the creditor attempts to collect their own debt by using a name that indicates a third party is trying to collect the debt, attorneys are included in the definition of a debt collector under the FDCPA and are subject to a federal law suit should they violate the terms of the FDCPA.

Generally speaking, a debt collector may not communicate with a consumer in connection with the collection of any debt: 1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer (generally, only between the hours of 8:00 a. m and 9:00 p.m.); 2) contact a consumer if represented by an attorney; 3) contact consumer at the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving such communication. See 15 U.S. Code §1692c

Additionally, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

A debt collector can not leave a message on an operator, answering machine or third party that indicates that call concerns the collection of a debt. Under the FDCPA, only calls that reach the consumer at home between the hours of 8:00 a. m and 9:00 p.m., that inform the consumer by name who is calling, and the reason for the call are permitted.

Additionally, all calls as well as other communications must also include the required warning and disclosure that the call is to gather information for purposes of debt collection. 15 U.S. Code §1692e(11) requires that debt collectors in all initial written communication to consumers, and if the initial communication is oral, to advise that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose.

Under 15 U.S. Code §1692g, each debt collector must offer an initial debt validation statement for the debtor in the first communication with debtor, whether orally or in writing, including in a complaint if it is the first communication with the debtor. Under the statute, specific language is required and any failure to use that specific language as well as provide the name of the creditor and the amount of debt is a violation of the FDCPA.

Under 15 U.S. Code §1692d, a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including, but not limited to: 1) the use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person; 2) the use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader; and 3) causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

Under 15 U.S. Code §1692e, a debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to: 1) the false representation of the character, amount, or legal status of any debt; 2) the false representation or implication that any individual is an attorney or that any communication is from an attorney; 3) the threat to take any action that cannot legally be taken or that is not intended to be taken.

Under 15 U.S. Code §1692f, a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt, including, but not limited to the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The FDCPA provide that a consumer may recover in a civil law suit actual damages, statutory damages of $1,000.00 and costs of the action together with reasonable attorney’s fees. The FDCPA is a fee shifting statute allowing the consumer to recover his attorney’s fees in a law suit for violation of the FDCPA. Finally, all suits must be commenced within one year of the violation.

Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”) is Pennsylvania’s analogue to the FDCPA and essentially mirrors the FDCPA in its prohibitions. See 73 P.S.§ 2270.1 et seq, However, the FCEUA applies to creditors and debt collectors alike and allows for law suits against the actual creditors as well as the debt collectors unlike the FDCPA. The FCEUA does not allow for lawsuits against attorneys collecting debts for other parties.

A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA. See 73 P.S. §2270.4. Under the FECUA, 73 P.S. §2270.5, if a creditor engages in an unfair or deceptive debt collection act or practice under this act, it shall constitute a violation of The Unfair Trade Practices And Consumer Protection Law (“UTPCPL”).  73 P.S. §201-1 et. seq.  The UTPCPL allows a consumer to recover actual damages, as a result of his use methods, act or practice declared unlawful under the FCEUA, statutory damages, treble the actual damages (at the court’s discretion), together with costs and reasonable attorney fees. See. 73 P.S. §201.9-2. All actions under the FCEUA must be commenced within two years.

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Pennsylvania’s “Ride on Red” law.

On July 20, 2016, Governor Wolf approved legislation that would allow motorists to proceed with caution through a red light if the vehicle presence is not detected by the signal’s detection system and fails to change to green. Act 101, more commonly know as the “ride on red” law gives anyone on the road the option to go through red lights as long as they use commons sense and caution. The law became effective on September 20, 2016.

Act 101 was introduced by Representative Stephen Bloom (R – Cumberland County) as an amendment to Title 75 (Vehicles) to create a solution for a common issue faced by motorcycle and pedalcycle riders. The intent was to allow drivers of motorcycles and pedalcycles stuck at a standstill because traffic control signals that utilize a vehicle detection system are not always able to detect motorcycles and pedacycles due to their smaller size. As a result, those cycle drivers would be forced to wait until a larger vehicle arrived and was detected by the traffic control device. Impatient riders would tire of the wait and unlawfully proceed through the intersection.

Representative Bloom’s original proposal was to allow the driver of a motorcycle or pedalcycle to proceed through the intersection only after exercising due care as provided by law. If the vehicle detection system failed to recognize the vehicle and the rider had come to a full and complete stop, the rider would make sure it was safe to continue, and proceed with caution through the intersection.

The amendment to §3112 of the motor vehicle code states, in pertinent part, if a traffic-control signal is out of operation or is not functioning properly, including, but not limited to, a signal that uses inductive loop sensors or other automated technology to detect the presence of vehicles that fails to detect a vehicle, vehicular traffic facing a Red or completely unlighted signal shall stop in the same manner as at a stop sign, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign as provided in section 3323 (relating to stop signs and yield signs).

The law does not state how long a driver should wait before assuming the light is not operating and proceed through the malfunctioning or unresponsive stop signal. Theoretically, a driver is allowed to treat the malfunctioning or unresponsive stop signal as a stop sign and the driver may use his judgment to proceed through the intersection with caution.

The problem is not every driver has the same level of patience or judgment and some may see the law as a “free pass” to go through the light. Moreover, the law does not differentiate rural areas from more congested urban areas of the state. Drivers may now argue the red light was taking too long to change and proceed through a busy intersection under the assumption it was malfunctioning. In busier traffic areas, it may create the potential for more traffic violations as well as more accidents. Impatient drivers may elect chose to go through an intersection with a properly functioning traffic signal risking their lives as well as the lives of unsuspecting oncoming drivers powerless to avoid collisions.

According to the National Coalition for Safer Roads, more than 3.7 million drivers in the United States ran a red light in 2014. The Insurance Institute for Highway Safety says 709 people were killed and an estimated 126,000 were injured in crashes that involved red light running that same year.

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Pennsylvania Announces the First Phase of Permit Applications for Grower/Processors and Dispensaries.

Yesterday, Secretary of Health, Dr. Karen Murphy of the Pennsylvania Department of Health (“DOH”) announced that applications for medical marijuana grower/processors and dispensaries will be available at the Pennsylvania DOH’s website, www.health.pa.gov, beginning January 17, 2017. Permit applications will be accepted from February 20, 2017 until March 20, 2017.

In less than a year, Pennsylvania’s Medical Marijuana Act (“MMA”) has gone from enactment to the first phase of implementation. Pursuant to chapter 6 of the MMA, Section 601 authorizes grower/processors and dispensaries as the only entities authorized to receive a permit and operate as a medical marijuana organizations and grow, process or dispenses medical marijuana.

Section 602(a) of the MMA generally requires all applications to include:

1. Verification of all principals, operators, financial backers or employees of a medical marijuana grower/processor or dispensary.
2. A description of responsibilities as a principal, operator, financial backer or employee.
3. Any release necessary to obtain information from governmental agencies, employers and other organizations.
4. A criminal history record check.
5. Details relating to a similar license, permit or other authorization obtained in another jurisdiction, including any suspensions, revocations or discipline in that jurisdiction.
6. A description of the business activities in which it intends to engage as a medical marijuana organization.
7. A statement that the applicant: (i) Is of good moral character; (ii) Possesses the ability to obtain in an expeditious manner the right to use sufficient land, buildings and other premises and equipment to properly carry on the activity described in the application and any proposed location for a facility; (iii) Is able to maintain effective security and control to prevent diversion, abuse and other illegal conduct relating to medical marijuana; and (iv) Is able to comply with all applicable Commonwealth laws and regulations relating to the activities in which it intends to engage under this act.
8. The name, residential address and title of each financial backer and principal of the applicant. Each individual, or lawful representative of a legal entity, shall submit an affidavit with the application setting forth: (i) Any position of management or ownership during the preceding 10 years of a controlling interest in any other business, located inside or outside this Commonwealth, manufacturing or distributing controlled substances; and (ii) Whether the person or business has been convicted of a criminal offense graded higher than a summary offense or has had a permit relating to medical marijuana suspended or revoked in any administrative or judicial proceeding, and
9. Any other information the department may require.

Section 607 of the MMA sets forth the following fees and requirements to obtain a permit.

For a grower/processor:  1) An initial nonrefundable application fee of $10,000 must be paid; 2) A permit fee of $200,000 is required at the time of application. (The fee shall be returned if the permit is not granted); and 3)  A grower/processor must have at least $2,000,000 in capital, $500,000 of which must be on deposit with a financial institution.

For a dispensary: 1) An initial nonrefundable application fee of $5,000 must be paid: 2  A permit fee of $30,000 for each location must be paid. (The fee shall be returned if the application is not granted); and 3) A dispensary must have at least $150,000 in capital, which must be on deposit with a financial institution.

In October and November, the DOH drafted and published general regulations as well as specific regulations for both grower/processors and dispensaries. The regulations can be found at 28 PA. Code CHS 1141, 1151, and 1161.

Pursuant to 28 PA. Code §1141.23, no more than 25 permits will be issued for grower/processors and only one grower/processor permit per applicant. Additionally, no more than 50 dispensary permits will be issued and no more than five dispensary permits to one person. A dispensary permit may be used at no more than three locations.

28 PA. Code §1141.28 states the DOH shall publish in the Pennsylvania Bulletin notice of the initial permit application availability and the timeframe which they will be accepted. Only the form of application provided on the DOH’s website may be used and it must be submitted electronically.

Secretary Murphy further announced that this was the first phase of the program and that initially up to 12 permits will be issued for grower/processors and up to 27 permits will be issued for dispensaries, across Pennsylvania’s six medical marijuana regions. Secretary Murphy stated that “the decision for which counties will be issued permits in this first phase was determined by using the department’s medical data, as well as comments from more than 5,000 patients and nearly 900 potential grower/processors and dispensary applicants.” For further information on how many permits will be issued per each region please read the blog at http://cannabisindustrylawgroup.com/index.php/2016/12/21/pa-department-of-health-outlines-phase-i-of-medical-marijuana-program/

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Concerns on both sides when drafting a commercial lease for a medical marijuana business.

In the upcoming year, medical marijuana businesses will be applying for permits to conduct business in Pennsylvania as either a grower/processor or a dispensary. In my previous blog, I commented on how it may be significantly more costly to rent property for a medical marijuana business than a non-marijuana business as result of the risks landlords may face.

Because of the risks associated with leasing to medical marijuana business, it is in the best interests of both the landlord and potential medical marijuana tenants to tailor a commercial lease to address some of those risks.

From a landlord’s perspective, there are specific concerns which should be addressed in a commercial lease.

1. Use of the Premises. Pennsylvania will issue permits for both grower/processors and dispensaries. Any lease should designate what state lawful purpose the premises will be used for.

2. Indemnification. The business of growing, cultivating, and selling marijuana remains illegal under the federal Controlled Substance Act. A landlord should include in any commercial lease an indemnification clause requiring the tenant to defend and indemnify the landlord from any federal action against the tenant, including forfeiture.

3. Early termination. A landlord should seek to include an early termination provision in the lease which allows the landlord to terminate the lease should: 1) the tenant fail to comply with any state or local law; 2) the commencement of any action against the tenant; 3) entry of a judgment against the tenant; 4) seizure by any government authority, and 5) any event that cause the closure of the building.

4. Improvements. The MMA has specific requirements for any property housing medical marijuana businesses, including access and security requirements. Any potential lease should require the tenant to comply with all state and local regulations and ordinances, secure any all licenses, at the tenants own expenses, and require the tenant to remove, at its own expenses, any improvements and modifications made by tenant.

5. Utilities. Utility expenses for a medical marijuana business are likely to be very high, especially for a grower/processor. A landlord should require a tenant to reimburse landlord and/or pay directly if possible any all utilities that out of the ordinary and excessive.

6. Access. Under the MMA, there are very strict rules as to who may have access and enter into a medical marijuana business. The right of a landlord to enter the premises must be clearly outlined and comply with state law.

7. Environmental, debris and waste. Under the MMA, there are very strict procedures for storage and removal of marijuana waste which any lease will have to incorporate. Additional, any grower/processor will have to store, use, and dispose of materials which are subject to environmental regulation including pesticides and fertilizers. Any commercial lease will require compliance with all environmental laws and regulations.

From a tenant’s perspective, a tenant should address in a commercial lease the following.

1. Term. With the federal government’s position towards marijuana unclear and the state’s position on marijuana evolving, a tenant may not wish to lock into 5 – 10 year lease terms with multiple automatic renewals. Shorter 2- 3 year terms and less automatic renewal periods may be more practical.

2. Permits. Medical marijuana businesses will be granted permits from the state after application and compliance with all state regulations. Any commercial lease should require a landlord to reasonably cooperate with tenant in complying with all regulations in the application process and not to take any action which could negatively affect the tenants application for a permit, operation and renewal of the permit.

3. Occupancy and commencement. Any potential medical marijuana business will have to present an operating plan and a lease to obtain a permit from the state.  The problem is there is no guaranty that a permit will be granted by the state. A tent should look to include an out clause or contingency clause to allow the tenant to terminate the lease should tenant not be granted a permit. The tenant should also look to include a rent abatement provision pending approval of the tenant’s application for a permit.

4. Dispute resolution. Typically commercial leases will have a confession of judgment clauses and specify where the dispute will be heard and under what laws a dispute will be decided. A tenant will have to be careful and tailor any confession of judgment clause so it  is not triggered by a violation of federal law and/or violation of the CSA. Additionally, a tenant may want all disputes to be submitted to private arbitration and have Pennsylvania state law govern due to the federal illegal status of marijuana.

Both landlord and tenant will need to make sure there are medical marijuana related outs drafted into the commercial lease to protect from federal prosecution. Additionally, any lease should incorporate a waiver by both parties acknowledging that neither will use against the other marijuana’s illegal status under federal law as a claim or defense to any dispute arising under the lease.

When drafting a lease, both landlord and tenant will have to carefully navigate federal, state, and local statutes and ordinances.  The aforementioned are just some concerns which should be considered by both landlord and tenant in drafting a medical marijuana lease.

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Failure to Clean Your Car Of Snow Could Cost You.

Whether you are dreaming of a White Christmas or not do not forget to clean your car windows of snow and ice this winter. Not only is it a smart idea for safety purposes but it is also the law in Pennsylvania.

Title 75 § 4524. Windshield obstructions and wipers, states:

(a) Obstruction on front windshield.–No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield which materially obstructs, obscures or impairs the driver’s clear view of the highway or any intersecting highway except an inspection certificate, sticker identification sign on a mass transit vehicle or other officially required sticker and no person shall drive any motor vehicle with any ice or snow on the front windshield which materially obstructs, obscures or impairs the driver’s clear view of the highway or any intersecting highway.

(b) Obstruction on side and rear windows.–No person shall drive a motor vehicle with any sign, poster or other nontransparent material, including ice or snow, upon the side wings or side or rear windows of the vehicle which materially obstructs, obscures or impairs the driver’s clear view of the highway or any intersecting highway. The placement of a registration permit upon the side or rear window of a vehicle shall not be considered a material obstruction.

In short, 75 §4524 requires all motor vehicle operators to remove all ice and snow and any other material from the windshield, side windows, and rear windows which prevents the operator from having a clear and unobstructed view of the road at all times.

While a violation of §4524 is only a summary offense subject to a $25 fine, the citation amount will likely exceed $100.00 after administrative fees and court costs are added in. That’s a lot to pay when an ice scrapper can be purchased for $5 to $10 and the windows cleared in 10 minutes.

Worse case scenario is that ice and snow dislodge from your car while moving and causes an accident, injury, or death. Under Title 75 §3720, the operator of a vehicle who failed to remove snow or ice from his vehicle could be subject to a fine of no less than $200.00 and no more than $1,000.00.

§ 3720. Snow and ice dislodged or falling from moving vehicle, states:

When snow or ice is dislodged or falls from a moving vehicle and strikes another vehicle or pedestrian causing death or serious bodily injury, the operator of the vehicle from which the snow or ice is dislodged or falls shall be subject to a fine of not less than $200 nor more than $1,000 for each offense.

With snow and icy weather approaching, remember to take 10 minutes and clean your car before driving. Have a safe and Merry Christmas.

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Watch out for Higher Rents For Medical Marijuana Businesses

Any entrepreneur looking to participate in Pennsylvania’s Medical Marijuana program understands that one of the biggest expenses and concerns is the location of the operation of the marijuana business venture.  The Pennsylvania Department of Health is planning on issuing 25 permits for grower/processors and 50 permits for dispensaries (with up to three locations per each dispensary permit). Theoretically, that is a maximum of 175 properties throughout the state that can house a medical marijuana grower/processor or dispensary. The Medical Marijuana Act requires that all medical marijuana business be indoor and 1000 feet from the property line of the nearest school or daycare. There are additional requirements under the MMA that are primarily security related that must also be factored in when searching for a property to house the business.

Local zoning ordinances will also impact any search for a property to rent or buy.  Many townships and municipalities are enacting ordinances in anticipation of medical marijuana businesses setting up in their area.  Local ordinances may place additional requirements and restrictions on properties housing medical marijuana business so long as they are consistent with the MMA. Township zoning classifications and conditional uses, maximum square footage, entrance, signage, parking and distance between competing unrelated medical marijuana businesses in the same township are all within the township’s authority to regulate.

A new medical marijuana business in the state you can either buy or rent. Grower/processors may have larger amounts of capital available then dispensaries and elect to buy and build. The problem when you buy is that bank financing will likely be required and there is a good chance that banks and other lending institutions will charge higher rates due to the risks involved. Marijuana is still illegal federally and the new administration’s unclear position with regards to marijuana is creating a lot of fear and worry in the legal marijuana industry.  A legal business could still be subject to federal prosecution, shut down, and seizure causing default on loans and loss of collateral. Banks will look to protect themselves by charging higher rates if they accept the risks and provide financing to buy and build.

If a marijuana business elects to rent a property, the landlord is subject to risk of default on the lease if the business is shutdown.  Many potential landlords will have properties that are subject to mortgages.  A lose of rental income even for a short time could cause landlords to default on those mortgages.  Additionally, within the mortgage there is likely a default provision allowing banks to foreclose if any illegal business is conducted on the property.  Landlords could be subject to foreclosure by simply entering into a lease with a medical marijuana business.

So long as the Department of Justice’s focus was not on marijuana business legal under their respective state laws, banks have accepted these risks but with a new administration banks may start to have cold feet.

The point is all of these factors make it more of a seller’s market and give potential landlords an advantage when it comes to setting rental terms and rates. With all the risks involved, the statutory requirements, and the limited amount of locations, landlords will be able to charge rents higher than the going market rate.

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What The Nomination Of Senator Jeffrey Sessions as Attorney General Could Mean to the Legal Marijuana Industry.

On election day in November, I wrote a blog article outlining the states which were voting to legalize either recreational or medical marijuana. Eight states voted on election day to legalize marijuana in some form bringing the total number of states who legalized recreational marijuana to eight and medical marijuana to 29. 1 in 5 Americans now live in states where recreational pot is legal. National opinion favors the continued growth of the marijuana industry. Before the election, both candidates expressed support for medical marijuana at the very least. There currently is a policy by the federal government to not interfere with state intrastate commerce and the legal marijuana industry.

Following the election, President-elect Donald Trump nominated Senator Jeffrey Sessions of Alabama for attorney general. Senator Session is on the record as opposing the legalization of marijuana in any form. Sessions has called marijuana reform a “tragic mistake” and criticized FBI Director James Comey and Attorneys General Eric Holder and Loretta Lynch for not vigorously enforcing the federal prohibition. Earlier this year on the floor of the Senate, Senator Sessions said: “You can’t have the President of the United States of America talking about marijuana like it is no different than taking a drink… It is different…. It is already causing a disturbance in the states that have made it legal.” Session further said, ”good people don’t smoke marijuana.”

Such an antiquated way of thinking ignores the progress made by states with legal medical marijuana programs and shows no empathy for those individuals who currently benefit from medical marijuana. Sessions should spend a day with the cancer patient or the epileptic child who benefits from medical marijuana. His view also threatens to derail and drive the multi-billion dollar marijuana industry business back underground right at the time that it is starting to gain support in the legitimate investment world.

Other than the President–elect, there is no one with more power than Sessions to interrupt the growth the marijuana industry has experienced in the last two decades. The Justice Department under President Obama has been hands-off, issuing the Cole memos that basically say the federal government will not prosecute legal marijuana sellers or buyers in states where it is legal. As the new Attorney General, Senator Sessions could reverse the DOJ’s position and simply tear up the Cole Memos. With little more than the stroke of his pen, the new Attorney General could direct the enforcement of the federal law against marijuana and direct that federal law enforcement officers shut down legal marijuana operations and arrest growers, retailers and users.

Sessions would face at least one stumbling block in the the Rohrabacher-Farr amendment. The Rohrabacher-Farr amendment to annual appropriations bills prohibits the Department of Justice and the DEA from using federal money to target or prosecute state-compliant medical marijuana businesses. The problem with Rohrabacher-Farr amendment is that it must be renewed annually with each budget or it will expire.

No one is certain what President-elect Trump will do with regards to the legalization of marijuana. Trump’s exact views on marijuana remain mixed at best. While campaigning, he has expressed support for medical marijuana. However, he has also stated the recreational marijuana is bad and has spoken of undocumented problems with recreational adult use in states like Colorado. What clouds things even things even further is Trump’s expressed support for a state’s right to govern themselves. He is on the record as saying if the state voter for it that’s the law in the state. Moreover, he has routinely touted himself as pro business and it seems unlikely that he would interfere with the multi-billion dollar marijuana industry.

Some have argued that it would be political suicide for the Trump administration to go against a campaign promise on a hugely popular issue that is widely supported by voters even Republicans. But the marijuana industry is worried. With the nomination of Senator Sessions, it is facing uncertainty that could become a very real threat to its growth.

Updated December 12. 2017.  The U.S. Senate approved approved a stopgap  federal spending measure to fund the government through April 28, 2017 which included renewal of the Rohrabacher-Farr Amendment.

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