Tag Archives: marijuana

More Pennsylvania Cities Decriminalize Marijuana Despite State Law.

With the noted exception of the current Attorney General, there is a growing acceptance of legalize use of marijuana in the United States. Thirty of the fifty states have legalized marijuana for either medical and/or recreational use. As the laws with regards to marijuana use continue to change state by state, the states which have legalized medical and/or recreational marijuana must navigate the conflict between their state law and Federal law which continues to classify marijuana as a prohibited Schedule 1 narcotic – a “harmful substance of no known medical benefit.”

The classification of marijuana as a schedule 1 drug is antiquated and patently false. However, perception and laws are hard to change. Change usually begins at a grass roots level. Within Pennsylvania, several cities have started to pass local ordinances that have decriminalized marijuana. Philadelphia, Pittsburgh, Harrisburg, Allentown, York, and, most recently, Bethlehem have all passed local ordinances essentially reducing the punishment for possession of small amounts of marijuana for personal use, typically 30 grams or less, from a crime to a summary offense subject to a fine.

These local ordinances create a perceived conflict with Pennsylvania State laws. Under Pennsylvania’s Controlled Substance, Drug Device and Cosmetic Act (“CSA”), 35 P.S. §780-113 (a)(16), no person may knowingly possess a controlled substance without a lawful prescription from a doctor. Under the CSA, marijuana is also classified a Schedule 1 controlled substance. Pennsylvania’s penalty for possession of 30 grams or less of flower or 8 grams or less of hashish is a misdemeanor punishable by 30 days in jail and/or a $500 fine. See 35 P.S. §780-113 (a)(31)(i). Possession of more than 30 grams of flower or more than 8 grams of hashish is a misdemeanor with a maximum penalty of 6-12 months incarceration and a $5,000 fine.

So which law applies and how severe can you be punished for possession of a small amount marijuana in theses cities that have decriminalized marijuana. Typically, when there is a conflict between state law and local ordinances, state law preempts the local ordinance. Some local law enforcement authority have argued the CSA preempts all of the local ordinances as they are attempts to alter the penalties under the CSA.

In Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146 (2011), the Pennsylvania Supreme Court rejected the argument that the Controlled Substance Act prohibits local regulation in order to create uniformity in the regulation of controlled substances. In Holt’s Cigar, the Supreme Court held that the Act does not prohibit local regulations of controlled substances unless there is an “irreconcilable conflict” between the CSA and the local regulation. The proper standard for determining whether the local ordinances “irreconcilably conflicts” with the Controlled Substances Act was stated by the Supreme Court in Holt’s Cigar.

[I]t has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.

Holt’s Cigar, 608 Pa. at 154. (emphasis added).

The Holt’s Cigar decision makes it clear that local laws with a different penalty do not create an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits. The Supreme Court stated that the the nature or severity of the penalties imposed is not determinative and does not eliminate the conflict arising from the discrepancy with respect to mens rea for a particular course of proscribed conduct.” Id.at 165 (emphasis added).

While Holt’s Cigar decision provides some clarity as to whether local municipalities may enact ordinances decriminalizing marijuana, person may still be punished under state laws. Usually, it will depend on the law enforcement authority that arrests and prosecutes the individual. If you are arrested by a state trooper as opposed to the local municipal police, there is a good chance you will be charged with a violation of state law. It will then be up to the local courts and prosecutors on how to proceed with charges and punishment

An interesting enforcement scenario exists in the city of Bethlehem. On June 26, 2018, the Mayor of Bethlehem signed into law Bill No. 16-2018, creating a summary offense for possession of up to 30 grams of marijuana (or eight grams of hashish), possession of marijuana paraphernalia and personal use of marijuana. Under the new law, there is a fine of $25 for a first offense, $50 for a second offense, $100 for a third offense, and $150 fourth offenses or eight hours of community service.

The problem arises with enforcement. The City of Bethlehem is divided between two counties, Lehigh and Northampton. The District Attorney of Lehigh County maintains the position that the CSA preempts local ordinance despite the fact that both Allentown and now Bethlehem – Lehigh County’s largest cities – have decriminalized possession of under 30 grams of marijuana. The District Attorney of Northampton County maintains the opposite position and will enforce the local ordinances. So it is possible you could be punished differently depending on where you are caught in Bethlehem with marijuana.

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PSP is Denying Firearm Purchases for Medical Marijuana Card Holders, even after Governor Wolf stated that “We Won’t Take Guns Away”

Although Pennsylvania Governor Tom Wolf recently declared that “[w]e won’t take gun away” from medical marijuana users, the Pennsylvania State Police (“PSP”) has not received the memo, as we have seen several instances where individuals who merely obtained a medical marijuana card – in the absence of actual use – have been denied by the PSP.

Specifically, starting in at least early December, the PSP began placing individuals who are medical marijuana licensees into “undetermined status,” when they attempted to purchase a firearm. If the individual challenged the determination through a Pennsylvania Instant Check System Challenge, the PSP responds that the basis is that the individual is a “Current Medical Marijuana Card Holder.”

PSP Marijuana Response

This obviously begs the question of how this information came into the possession of the PSP, since pursuant to Pennsylvania’s Medical Marijuana Act, 35 P.S. § 10231.101, et seq., and more specifically, 35 P.S. § 10231.302, all patient applicant information is confidential and not subject to disclosure. Furthermore, the implementing regulation relating to the confidentiality provision, 28 Pa. Code § 1141.22,  explicitly states that “[t]he name or other personal identifying information of a patient … who applies for or is issued an identification card” is confidential and “will not otherwise be released to a person unless pursuant to court order.” As the application is submitted to the Pennsylvania Department of Health, only the Department of Health should have access to this information, absent a court order.

As I am sure litigation will ensue, we just may find out, at some point, how the PSP obtained this confidential information.

If you or someone you know has had their right to keep and bear arms infringed, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

 

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Are PA Medical Marijuana Patients Prohibited From Possessing and Purchasing Firearms and Ammunition?

Last week, Pennsylvania Governor Tom Wolf announced that the Medical Marijuana Program Patient Registry had reached 3,800 registered patients in its first week of registration. While individuals may be able to lawfully possess marijuana in Pennsylvania under Pennsylvania law if the person is registered on the Patient Registry and has been approved for use by a qualified doctor, Federal law still provides that the possession and/or use of marijuana is unlawful, as a Schedule 1 drug.

Although we have written extensively about the fact that marijuana is federally prohibited and that ATF revised the ATF 4473 form to reflect such, few individuals appear aware that they lose their right to keep and bear arms if they are a current user of marijuana, even if approved for use by a qualified doctor. (As many people are confused, a doctor cannot prescribe marijuana, due to Federal law, but can suggest to a patient that he/she utilize marijuana).

On the most recent version of the ATF 4473, it reflects under question 11e.:

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

As a result, more than 3,800 residents of Pennsylvania have presumptively become prohibited under Federal law from possession and purchasing firearms and ammunition.

Moreover, individuals who live in households where a registered medical marijuana patient resides, need to consider the potential ramifications of their own rights to keep and bear arms.

If you are concerned about whether you have lost your right to keep and bear arms as a result of Pennsylvania’s medical marijuana program or your residing in a residence with a medical marijuana user,  contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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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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ATF Announces New Form 4473 – Firearms Transaction Record

screen-shot-2016-11-15-at-3-37-15-pm

The National Shooting Sports Foundation is reporting that on Monday, November 14, 2016, ATF announced that the new 4437 would be required on ALL firearms transactions beginning on January 16, 2017. As you may remember, I previously blogged about ATF soliciting comments on the proposed 4473 and then filed a Comment in Opposition to ATF’s Proposed Changes to the Form 4473. ATF responded to my comment in which it admitted to violating its own regulations but seemingly did not care.

It does seem that ATF took into consideration some of the comments FICG had filed in drafting the new form. One of the biggest problems I took issue with was the certification statement that the transferor (person transferring the firearm) had to sign.

Specifically, the individual signing the form is currently certifying that based upon

“…information in the current ATF Publication ‘State Laws and Published Ordinances’ – it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise disposes of the firearm(s) listed on this form to the person identified in Section A.”

The issue, as I previously blogged about, is that the ATF Publication “State Laws and Published Ordinances” has not been updated since January of 2011, in violation of ATF’s own regulations. See 27 CFR § 478.24.

ATF in the updated version of the form has changed the language to read that based upon

“…State or local law applicable to the firearms business — it is my belief that it is not unlawful for me to sell, deliver, transport, or otherwise dispose of the rearm(s) listed on this form to the person identified in Section A.”

Essentially, ATF changed the language so that the individual signing the form would not be responsible for referring to the guide that ATF is required to publish by its own regulations but rather be responsible for knowing the applicable state and local laws on their own.

Equally of interest is the new language found over question 11e. In case there was any confusion from licensees or individuals attempting to purchase firearms who utilize medical marijuana, there can be no more confusion. If an individual is a user of medical marijuana, they may not answer no to question 11e.

Marijuana leaf on a white background

e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

ATF did fail to take into consideration an important suggestion that FICG had made. There is no box on the form to indicate the firearm is being transferred to a legal entity. Rather than having licensees use a form, which the licensee has to make on their own, ATF could have simply added a spot on the form to indicate the firearm was being transferred to a legal entity. ATF stated that we were free to submit that suggestion again in the future, which is a comical response, because the reason they said they could not include it was that the form had already been drafted when the suggestion was made. It appears this ideal will turn into a Catch 22.

All in all, from my experience behind the gun shop counter, the revisions to the form (at least the part the transferee or purchaser will be responsible for completing) appear to make it a bit easier for individuals to follow and complete. While ATF could have done a better job listening to some of the suggestions which would have been helpful to licensees, it appears this version of the form is better than the last.

 

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Election Day For Marijuana

It’s election day for marijuana. The number of states legalizing marijuana for medicinal and/or recreational use continues to grow. Five more states have ballot initiatives for the legalization of recreation/adult use marijuana and four more states have medical marijuana ballot initiatives.

Arizona, California, Maine, Massachusetts, and Nevada are all states with existing medical marijuana programs who are now voting on ballot initiatives that would legalize recreation/adult use marijuana for state residents 21 years or older.

Arizona is voting on Proposition 205, The Legalization and Regulation of Marijuana Act. Proposition 205 would legalize the possession of up to 1 ounce of marijuana,
allow adults to grow up to 6 marijuana plants in an enclosed, locked space within their residences, and possess the marijuana produced by those plants in the location where it was grown. A limit of the total marijuana plants grown in a single residence would be limited to 12.

Proposition 205 would allocate taxes to school construction, full-day kindergarten programs, public drug education and more.

Proposition 205 appears likely to pass as register voters support it 50 % to 40%.

California is voting on Proposition 64, The Adult Use of Marijuana Act (AUMA). AUMA would legalize the possession of 1 ounce of marijuana flower, or up to 8 grams of cannabis concentrate, the cultivation of up to 6 plants, and the industrial cultivation of industrial hemp.

AUMA would create a tax and regulatory system with the tax resources being allocated toward environmental protection and remediation, youth substance abuse prevention, medical marijuana research and local governments.

California Polls suggests that voters support passing AUMA 52% to 41%.

Maine voters will have The Marijuana Legalization Act on the ballot. The Maine act would legalize for recreational purposes the possession of up to 2 1/2 ounces of marijuana and the possession, cultivation and transportation of up to 6 flowering marijuana plants, 12 immature marijuana plants and unlimited seedlings, and possession of all the marijuana produced by the marijuana plants at that person’s residence.

The Marijuana Legalization Act appears likely to pass as polls show it is supported by 50 % – 41 % margin.

The Massachusetts initiative would legalize possession up to 1 ounce of marijuana outside of an individual’s residence, possession of up to 10 ounces of marijuana in an enclosed, locked space within their residences, growing up to 6 marijuana plants in an enclosed, locked space within their residences and possess the marijuana produced by those plants in the location where it was grown.

No more than 12 total marijuana plants can be grown in a single residence.

Massachusetts initiate also seems likely to pass.

Nevada is voting on legalizing recreational/adult use marijuana allowing possession of 1 ounce of marijuana and allowing anyone who does not live within 25 miles of a marijuana store to grow up to 6 marijuana plants.

Nevada is also creating a tax and regulatory system with taxes being allocated to supporting schools and K-12 education.

Four states are voting on legalizing medical marijuana, Arkansas, Florida, Montana and North Dakota.

Arkansas is voting on Issue 6, the Arkansas Medical Marijuana Amendment, which would legalize medical marijuana for 17 qualifying conditions. It is uncertain whether Issue 6 will pass.

Florida’s initiative, Amendment 2, is likely to pass as recent survey suggest that 73% percent of the voters support it.

Montana is voting to reinstate medical marijuana laws after legislative restrictions made it impossible for them to work.

North Dakota is voting on Initiated Statutory Measure 5, The North Dakota Medical Marijuana Legalization Initiative, which would legalize medical marijuana for debilitating medical conditions. Recent polls suggest 47 % support it as opposed to 41% who don’t. 50% is required to pass.

Currently 4 states have legalized recreational/adult use marijuana and 25 states have legalized some sort of medical marijuana program. If all ballot initiatives pass, a total of 28 states will have legalized marijuana in some form. Nine states will have legalized recreation/adult use of marijuana. If all recreational/adult use ballot initiatives pass, nearly a quarter of all Americans will reside in areas where recreational use marijuana is legal.

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