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Pending Marijuana Legislation in 2015

1. Alabama: SB326

2. Iowa: SF484

3. Missouri: HB490 + HB800

4. Nebraska: LB643

5. Pennsylvania: SB3 + HB193

6. South Carolina: H3140, SB672, H4307

7. Texas: SB1839 + HB3785

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Failed Marijuana Legislation in 2015

1. Florida: SB528 + HB 683

2. Georgia: SB7

3. Indiana: SB284 + HB1487

4. Kansas: SB9 + HB2011

5. Kentucky: SB40 + HB3

6. Mississippi: SB2318

7. North Carolina: HB78

8. North Dakota: HB1430

9. Tennessee: SB660 + HB561

10. Utah: SB259

11. West Virginia: SB546 + HB2909

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Medical Marijuana “Legalization”

1. Alaska: 1998

2. Arizona: 2010

3. California: 1996

4. Colorado: 2000

5. Connecticut: 2012

6. DC: 2010

7. Delaware: 2011

8. Hawaii: 2000

9. Illinois: 2013

10. Maine: 1999

11. Maryland: 2014

12. Massachusetts: 2012

13. Michigan: 2008

14. Minnesota: 2014

15. Montana: 2004

16. Nevada: ?

17. New Hampshire: 2013

18. New Jersey: 2010

19. New Mexico: 2007

20. New York: 2014

21. Oregon: 1998

22. Rhode Island: 2006

23. Vermont: 2004

24. Washington: 1998

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Medical Marijuana Legislation Pending in 2015

1. Georgia: HB1 + SB185

2. Idaho: S1106 + S1146

3. Kansas: HB2282

4. Louisiana: HB6 + SB143

5. Ohio: HB33

6. Tennessee: SB280

7. Texas: HB892 + SB339

8. Virginia: HB1445 + SB1235

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Ohio’s Ballot

PROCESS

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Create Petitioners’ Committee

File Initial Petition with Ohio Attorney General

Create Petition + Gather Signatures

Signature Requirements - 305,591

Filing Deadline + Filing Fee

Signature Verification + Supplemental Signatures

Signature or Petition Challenges

Ballot Language

Ballot Arguments

Election Day - November 3, 2015

Effective Date - 30 days after voter approval

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What Would the Amendment DO?

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Creates Ohio Marijuana Control Commission

Regulate acquisition, growth, cultivation, extraction, production, processing,

manufacture, testing, distribution, retail sales, licensing and taxation of medical marijuana,

marijuana and marijuana infused products and the operations of marijuana establishments

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Medical Marijuana

Patients with valid certification allowed to possess, use, transport, etc.

>

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Ohioans 21+Possess, use, transport, share 1 ounce or its equivalent

Grow + cultivate homegrown marijuana

Grow, transport, buy, sell + process industrial hemp

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Prohibitions + Taxes

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ProhibitionsAny public place or on the grounds of a

public or chartered nonpublic elementary or secondary school, state licensed child day-

care center, correctional facility or community corrections facility, or in a moving vehicle,

aircraft, train or motorboat

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TaxesRetail purchase

Wholesale + Manufacturing

Monthly / Per Capita Basis

Municipal/Township

Government Stabilization Fund

Strong County Fund

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Who is Behind the ConstitutionalAmendment?

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Responsible Ohio

Unidentified Marijuana

Growth, Cultivation and

Extraction Location

(“MGCELs”) property owners

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370,000 signatures

$200 million spent annually to fight prohibition

Spend resources on

fighting hard narcotics

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Thank You!Tony Fiore, Of CounselKegler Brown Hill + Ritter

[email protected]

keglerbrown.com/fiore

614.462.5428

@anthoniofiore

Director, Government Affairs

Ohio State Council of SHRM

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Kelley B. Duke

303.628.3663

[email protected]

Copyright 2015 Ireland Stapleton Pryor & Pascoe, PC

Implications

of Legalized Marijuana

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It’s Spreading

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Program overview

Basic terminology

Regulatory overview

Federal illegality

History

Industry/regulatory status

Cash implications

Employment issues

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Basic Terminology

Retail/recreational

Dispensary/center/store

OPC/cultivation-grow facility

MIP – marijuana infused product

Excise tax

Decriminalization/legalization

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MarijuanaHistory of Legalization in Colorado

1970: The Federal

Controlled

Substances Act

lists Marijuana as

a Schedule I

controlled

substance.

2000: Colorado voters

pass Amendment 20,

decriminalizing

marijuana use by those

with debilitating

medical conditions.

2009: The DOJ

announces that

prosecuting medical

marijuana users

would no longer be a

federal enforcement

priority.

2012: Colorado voters

pass Amendment 64,

decriminalizing the

possession and use of

marijuana by adults 21

years and older.

2013: The DOJ

announces

that it will not

challenge state

laws that

legalize

marijuana.

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Legalized Marijuana Categories

Industrial hemp – agriculture

Personal/caregiver – health

Commercial – revenue/MED

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Federal Illegality

Schedule 1 Narcotic

Federal seizure

Conflict with state laws

No analogies

Cole & Ogden Memos

Enforcement protocols Children, Veiled Corporate Ownership, Diversion

State Trooper Enforcement Analogy

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First Wave - 2009

Little or no business experience

Recession in full bloom

Lack of regulatory oversight

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Second Wave - 2010

Non-marijuana business people

Brought legitimate business practices

with them

Successfully weathered market and

regulatory changes

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Third Wave

Goal: hone systems, processes and

brands to EXPAND

Therefore, Big Operators

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Industry Status Half the states have legalized marijuana, including Georgia

Informal political coalition

Pre-2000: 95% of MJ smoked

2015: 40% of MJ smoked

Oligopoly

Sophisticated operators

119K Medical Cards in Colo. – 1.5% of Colo.

650,000 Colo. users – 12% of Colo.

National legal cannabis market size: $1.53 billion

Estimated national legal cannabis market size in 2019: $10.2

billion

Number of Americans that regularly use cannabis: 17.4 million

MJ Consumption mirrors alcohol

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Cash Implications? Prior to 2011 – Cash & Bank Accounts

Budget for break-ins

2011 & 2012 – Banks out

2012 – Present – Alternatives

All cash

Card runners

ATM’s

Rolling Accounts

Side accounts

Bank loosening

MJ mortgages

Fourth Courner Credit Union

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MarijuanaRelevant Employment Laws

La

wfu

l O

ff-D

uty

Con

du

ct

Un

em

plo

ym

en

t C

om

pen

sati

on

Work

ers

’ C

om

pen

sati

on

AD

A/C

AD

A

Employers

cannot fire

employees

for doing

legal things

on their

own time

and away

from the

workplace,

even if the

employer

objects to

the activity.

Benefits

can be

denied if

the

employee

was fired

because

he/she had

“not

medically

prescribed”

controlled

substances

in his/her

system at

work.

Benefits

can be

reduced by

50% if the

injury

resulted

from the

presence of

“not

medically

prescribed”

controlled

substances

in the

employee’s

system.

Using

medical

marijuana to

treat

disability not

protected,

so long as

adverse

action based

on uniformly

applied drug

policy

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The Facts

The Decision

MarijuanaLawful Off-Duty Conduct

Coats v. Dish Network2013 Colorado Court of Appeals

“Lawful” means lawful under both the state and

federal law. Because marijuana is illegal under

federal law, it is not a “lawful” activity and is

not protected under the statute. Employees can

be fired for smoking marijuana off-duty.

Brandon Coats, a quadriplegic and medical marijuana

user, was fired from Dish Network after testing

positive for marijuana. He said his medical

marijuana use was a “lawful off-duty activity” and

that Dish Network was not permitted to fire him.

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Amendment 64 and its implementing statutes say that

the Amendment does not affect “the ability of employers

to have policies restricting use of marijuana by

employees”.

MarijuanaLawful Off-Duty Conduct

Coats v. Dish Network2013 Colorado Court of Appeals

While we agree that the general purpose of [the off-duty

conduct statute] is to keep an employer’s proverbial nose out

of an employee’s off-site off-hours business, we can find no

legislative intent to extend employment protection to those

engaged in activities that violate federal law.

And one more

thing…

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Amendment 64 and its implementing statutes say that

the Amendment does not affect “the ability of employers

to have policies restricting use of marijuana by

employees”.

MarijuanaLawful Off-Duty Conduct

Coats v. Dish Network2013 Colorado Court of Appeals

While we agree that the general purpose of [the off-duty

conduct statute] is to keep an employer’s proverbial nose out

of an employee’s off-site off-hours business, we can find no

legislative intent to extend employment protection to those

engaged in activities that violate federal law.

And one more

thing…

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The Facts

The Decision

MarijuanaUnemployment Compensation

Beinor v. Industrial Claim Appeals Office

2011 Colorado Court of Appeals

Federal law prohibits physicians from

“prescribing” marijuana, a Schedule I controlled

substance. Physicians may only give “written

documentation” that a patient might benefit from

medical marijuana. Thus, medical marijuana

referrals and registry cards are not “prescriptions”.

Jason Beinor used medical marijuana to treat

headaches. He was fired after testing positive, and

then denied unemployment benefits. He said the

marijuana was “medically prescribed” because he

used it pursuant to a doctor’s recommendation.

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But… it’s likely that the issue would be decided consistently with

Coats, Beinor, and the new state marijuana laws, and the 50

percent penalty would be imposed.

MarijuanaWorkers’ Compensation

No court has decided whether

marijuana is a "not medically

prescribed" controlled substance for

purposes of reducing benefits.

RED FLAG WARNING: the drug test must be

performed by a state-licensed or certified lab, AND

a duplicate sample must be preserved by the lab for the employee to

test at his/her expense.

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The Facts

The Decision

Positive marijuana test, whether for medical

marijuana or any other use, legitimate basis to fire.

CADA does not shield disabled employee from

implementation of standard policies against

misconduct.

MarijuanaColorado Anti-Discrimination Act (CADA)

Curry v. MillerCoors, Inc.

2013 US Dist. Court for Colorado

Mr. Curry used medical marijuana to treat hepatitis,

osteoarthrisis and pain.

Failed drug test and fired.

Sued for Invasion of Privacy and under CADA

because fired for treating qualified disability.

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MarijuanaSecondary Exposure At Incident

No court decision or agency guidance

What to do with emergency personnel who are exposed to

marijuana by contact or smoke?

Thoughts:

• Put a policy in place before the situation arises

• SOP/SOG/Handbook – “grace period” after exposure?

• Self Reporting?

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The Takeaway: You can discipline or terminate employees who

smoke medical or recreational marijuana if: (1) they are impaired or

hung over at work; or (2) it is in their system while they are at work

(i.e., they fail a drug test).

MarijuanaConclusion – Adverse Employment Action

But first…

Establish a written drug

and alcohol policy.

Establish a written drug

and alcohol testing policy.

Inform your employees

of the policies.

Apply the policies

consistently.

Document, document,

document!

Have a certified lab

conduct the drug testing.

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The Facts

The Decision

MarijuanaReporting Marijuana to Law Enforcement

People v. Harper

1995 Colorado Supreme Court

Residential fire triggered “exigent

circumstance” exception to constitutional bar

of warrantless search. No warrant needed for

cause/origin investigation immediately

following extinguishment of fire.

“Plain View” doctrine applies.

Firefighters entered residence to extinguish fire.

During cause and origin investigation that

commenced immediately upon extinguishment of fire,

investigator saw marijuana and reported it to law

enforcement.

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The Facts

The Decision

MarijuanaIndividual Liability – State Tort Claim

Gallagher v. Bd. of Trustees Univ Northern Colo

2002 Colorado Supreme Court

Colorado Governmental Immunity Act bars

claim not asserted within 180 days of when

injury was “discovered or reasonable should

have been discovered” – “Continuing Violation”

doctrine does not apply. No immunity if acting

outside scope of employment

Gallagher sued University Administrator personally

for defamation. In a staff meeting the Administrator

stated to the group that Gallagher comes to work

smelling of marijuana.

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The Facts

The Decision

MarijuanaIndividual liability – Constitutional Claim

Winchester v. Cosaineau (Warrantless Search)

2005 US District Court for Colorado

CGIA does not apply to 1983 claim

Qualified Immunity applies

Medical emergency created “exigent

circumstance” exception to constitutional bar

of warrantless search.

EMS personnel forcibly entered residence upon

anonymous tip of possible overdose/suicide. Police

entered to protect EMS personnel. Illegal substance

found. Plaintiff asserted 1983 claim against

individual EMS providers for warrantless search.

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The Facts

The Decision

MarijuanaIndividual liability – Constitutional Claim

Young v. Larimer Sheriff’s Office

(Dead Pot Plants)

2014 Colorado Court of Appeals

No legally protected interest on contraband

Medical marijuana illegal under Fed law, so it

is contraband per se

Plaintiff had no legally protected interest in

the marijuana (CHILLING EFFECT)

Police took 42 plants – cut off at base of stem.

Defendant acquitted of all charges under Medical

Marijuana laws – police returned dead plants

Plaintiff sued individual police officers under 1983

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Kelley B. DukeLitigation Attorney

Ireland Stapleton Pryor & Pascoe, PC

[email protected] | 303-628-3663

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LEGAL ADVICE WITH PERSPECTIVE