Cannabis is Legal, Now What? The MRTA - I read the law, so you don’t have to

 

         The long-awaited day of legalization for recreational cannabis in New York was on March 31, 2021. Recreational legalization is an enormous policy shift that will hopefully improve the lives of all New Yorkers. In fact, the State vowed to reserve the first 100 retail licenses to sell cannabis exclusively for people (or members of their family) who have been convicted of a “marijuana-related” offense.[ii] The State also vowed to invest 40% of the adult-use cannabis tax revenue toward rebuilding communities that were harmed by the War on Drugs.[iii] Currently, the local excise tax for retail dispensaries is 4% of the total purchase. 25% of the tax revenue goes to the county, and 75% goes to the cities, towns, or villages within the county.[iv] However, because the law is in its early stages, there’s a lot of blurriness of what’s allowed and what’s not. So, I’m sure we’re all wondering: is it possible to get in trouble? While the State hasn’t laid out regulations or punishments, this is what we know:

 

1. You must be 21 years or older to possess and use cannabis[v]

 

2. Adults may possess up to 3 ounces or 24 grams of cannabis on their person

-This includes vape oils and edibles

-Adults may possess up to five pounds of cannabis at their personal residence or grounds

-This means that you can ride in an Uber and carry up to 3 ounces, use public transit and carry up to 3 ounces, and can even be driving and carry up to 3 ounces [vi]

 

3. You can be charged with a DUI if found driving high and are subject to the same penalties as driving drunk

-This is not only blurry but frightening because we are all aware that even if you’re not smoking cannabis at the moment, it still has a very potent smell, and if you have 3 ounces on your person, that could be one very smelly car ride. Unfortunately, the smell is one of the first indicators to a police officer that someone may be high. Even more unfortunate, there are not many tests that can accurately detect active cannabinoids. In other words, the tests that currently exist do not accurately represent the time that has elapsed since your last hit. But do be aware that cannabis cannot be consumed when operating a motor vehicle. [vii]

 

4. Smoking cannabis is prohibited wherever tobacco is prohibited

         The State really wanted to confuse us all with this one. On its face, this provision seems that you can smoke cannabis pretty much anywhere in a public setting if tobacco is also allowed to be smoked. The provision also says that landlords, property owners, AND rental companies can still ban the use of cannabis on their premises. Fortunately, a landlord or rental company cannot refuse to rent to a tenant who uses cannabis. However, this provision still creates issues on micro and macro levels.

         On the micro level, suppose a renter smokes cannabis; if their landlord or management company bans the use of cannabis on their property, that renter will have to find a place to smoke outside their home. And we’re not talking right outside the building because, technically, that could still be considered the premises. Okay, so someone has to walk a few feet; no big deal, right? Now, I want you to think of the cancer patient who is so nauseous that they are practically immobile and are unable to consume any nutrition without the help of cannabis. Or the wheelchair user who lives in a typical NYC apartment building with multiple floors. Or the neighbor across the hall who suffers from fibromyalgia is having a flare-up and is in excruciating, immobilizing pain. And one step further, I want you to think about N.Y. weather. Should these people be forced to leave their homes to consume cannabis in the snow or freezing temps? In the hot summer heat? During a rainstorm? Thankfully, there are many smoke-free options with cannabis these days, but this is food for thought.

         On a macro level, anyone who owns property is a property owner. This simply means that essentially any property owner can ban the use of cannabis on their premises. Private property owners are usually business owners (hotels, restaurants, grocery stores, etc.). So, if an entire block of privately owned property bans the use of cannabis, it would be difficult for someone who does not have their own private property to be able to smoke cannabis, and this might mean that they would have to travel further than their immediate building surroundings to consume. Why is this a macro problem? Because more than half of people who live in N.Y. are renters, not buyers. Thus, more than half of people who live in N.Y. are subject to someone else’s (property owner's) premises rules. Also, NY is filled with tourists year-round. In 2019, 265.5 million people visited NYS in total, and of that, NYC saw 66.6 million of those people. This adds to the macro problem because cannabis legalization would maybe attract even more tourists, but because of the private property provision, they may not have anywhere to consume it! [viii]

        

5. Employment Restrictions[ix]

         Although now that cannabis is recreationally legal, employers cannot drug test for THC! But some workers are still being drug tested for THC; why? Because their employer could be receiving federal funding or needs to comply with federal agency rules or state law requiring drug testing or similarly makes it a mandatory requirement for the position (such as commercial truck drivers). Those employers are not required to commit any act that would cause them to violate the law or lose their federal funding. Being that cannabis is still federally illegal, those employers may be required to ensure that their employees do not smoke cannabis so they can continue receiving funding and/or work for the federal government. For example, certain machinery is regulated through the United States Department of Transportation (DOT). If an N.Y. company uses that particular machinery, they and their employees must be in compliance with the many DOT requirements, specifically, a negative THC drug test. A good rule of thumb is to always ask a potential employer what their onboarding process is.

         Most private employers, with some exceptions, cannot discriminate against someone for their off-work hour's use of cannabis when they are not on the job premises or using an employer’s equipment or other property. An employer cannot prohibit the use of cannabis outside the workplace (unless they fall under the exceptions I talked about above). An employer cannot refuse to hire, employ, or license someone who uses cannabis. They also cannot fire an employee or otherwise discriminate against them when it comes to compensation, promotions, or other terms and conditions or privileges of employment. However, all employers can enforce policies that would prohibit impairment on the job. Unfortunately, if you get caught high at work, you can be lawfully fired.

         To summarize, employers can only prohibit employees from using cannabis and take action related to that use when: they are required to do so by state or federal statute, regulation, ordinance, or other state or federal government mandate; when an employee is impaired on the job, and the impairment decreases or lessens the employee’s performance, or interferes with an employer’s obligation to provide a safe and healthy workplace; or when he employer’s actions would require the employer to commit an act that would cause them to be in violation of federal law or the loss of federal contract/funding.

 

6. Crossing State Borders

         Because cannabis is still federally illegal, it’s illegal to cross any state or international borders while you possess cannabis on your person. It’s also illegal to possess and smoke cannabis on federal lands or property. This includes any national park, monument, forest, trail, historical site, etc. So as tempting as it is, don’t light up at the Statue of Liberty or Niagara Falls. [x]

 

7. Growing Cannabis at Home

         Unfortunately, all my fellow tree-huggers and gardeners, we cannot grow cannabis at home just yet. But when the law goes into effect, New Yorkers 21 and over will be able to grow up to 6 plants in their home for personal use! There are some regulations of the six plants regarding mature/immature plants, which further legislation will provide insights for. Nonetheless, there is a max of 12 plants per household regardless of the number of people over 21 who live there.

         The State will allow home cultivation only after the Office of Cannabis Management (OCM) completes the home grow regulations, but they do ensure that the regulations must be finished no later than 18 months after the first adult-use retail sale.

         OCM has provided some regulations already, such that cannabis plants must be kept in a secure place and not accessible to any person under 21; the homegrown cannot be sold to anyone and must be intended for personal use only; it’s illegal to make your own hash oil or any other concentrate that contains butane, propane, or alcohol; AND OCM allows local municipalities to enact and enforce regulations to home cultivation but thankfully, does not allow those municipalities to completely ban or prohibit home cultivation.[xi]

 

And there you have it, folks! Don’t have more than 3 ounces on your person, don’t smoke and drive or drive high, be careful and aware of where you are smoking, don’t be bullied by your employer, don’t smoke on federal property, or leave N.Y. in possession of cannabis, and wait for the green light by OCM to start your plants!

 

 

While I have you here on this topic, there’s also a related issue I’d like to discuss:

 

We want YOU! To Stop Saying Marijuana 

 

         Weed, pot, Mary Jane, grass, hash, ganja, dope, reefer—because of pop culture, Americans have heard it all. Cannabis is one of the oldest agricultural commodities not grown for food and has been cultivated for at least 5,000 years.[xii] The first American Law regarding cannabis was passed by the Virginia Assembly in 1619, which required every farmer to grow it and was considered a valuable commodity.[xiii] Most of our Founding Fathers even grew it on their estates! Throughout the 19th century, news reports and medical journal articles would almost always refer to the plant’s formal name, cannabis. In fact, in the latter half of the 19th century, cannabis was a common ingredient in medicines and was openly sold at pharmacies to treat migraines, insomnia, and a whole bunch of other common ailments![xiv]

         Unfortunately, in the early 20th century, things started to shift. The Revolution of 1910 led to an influx of Mexican immigrants to the U.S., which led to a multitude of anti-immigrant sentiments and discrimination. Mexicans were faced with prejudices against their traditions which predominantly included cannabis. “Marijuana” is the Mexican colloquial name for cannabis, and our government and its racist followers exploited this term to further prejudices against Mexican people. Mexicans used cannabis recreationally for religious ceremonies and medicinal purposes.[xv] However, during the emigration, Texas police officers claimed marijuana incited violent crimes, aroused a “lust for blood,” and gave its users “superhuman strength.” Rumors spread that Mexicans were giving this “killer” drug to schoolchildren. Id. at footnote 3. And I mean, come on, who would waste their cannabis like that? Seems like Texas in the 1910s also had legislators with misplaced desires to “protect” children.

         This rhetoric spread throughout the U.S. like wildfire leading to government action, lo and behold, Regan’s War on Drugs! I urge everyone to research the truth of the War on Drugs (and check out a related article by our own Thom Barranca!), but to wrap this up, just use the word cannabis. Marijuana is not the name of the plant, and because of the racist history behind it, it’s just bad vibes. Cannabis is the plant’s name and identity, and it should be used going forward.

 

 

Wishing you Safe & Happy Smoking!

 

Yours truly,

 

The Margins’ personal flower-fairy god-mother - Kathryn Venezia

 

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ENDNOTES:

[i] The proper term is cannabis, but the law is still labeled as a “marijuana” law.

[ii] McKinley Jesse, Ashford Grace, New Yorkers With Marijuana Convictions Will Get First Retail Licenses, The New York Times (March, 9 2022).

[iii] Carl E. Hestie, Assembly to Pass the Marijuana Regulation and Taxation Act to Legalize Adult Use of Marijuana in New York State (March 30, 2021) https://nyassembly.gov/Press/?sec=story&story=96303

[iv] See MRTA §854---A: https://legislation.nysenate.gov/pdf/bills/2021/S854A

[v] See, Adult Use Cannabis Legalization: What You need To Know, Office of Cannabis Management, https://cannabis.ny.gov/system/files/documents/2022/02/adult-use-cannabis-legalization_0_1.pdf

[vi] Id.

[vii] Id.

[viii] Id.

[ix] See, New York Labor Law §201-D, Adult Use Cannabis and the Workplace, New York Dept. of Labor (October, 21, 2021)  https://dol.ny.gov/system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf

[x] Id.

[xi] Supra. Note 3.

[xii] Medicinal Cannabis: History, Pharmacology, And Implications for the Acute Care Setting

Mary Barna Bridgeman, PharmD, BCPS, BCGP and Daniel T. Abazia, PharmD, BCPS, CPE https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5312634/ Citing to Bennett C. Early/ancient history. In: Holland J, editor. The Pot Book: A Complete Guide to Cannabis. Rochester, Vermont: Park Street Press; 2010.

[xiii] https://www.nytimes.com/2003/06/01/weekinreview/the-world-up-in-smoke-the-us-bucks-a-trend-on-marijuana-laws.html

[xiv] https://www.theatlantic.com/magazine/archive/1994/08/reefer-madness/303476/

[xv] https://www.npr.org/sections/codeswitch/2013/07/14/201981025/the-mysterious-history-of-marijuana

 

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