Where There’s Smoke…Medical Marijuana Use in Your Lodging Facility
Where There’s Smoke…
Medical Marijuana Use in Your Lodging Facility
Oregon Lodging Association’s "Lodging News"
December 2005
In 1999, Oregon voters passed the Oregon Medical Marijuana Act (the "Act") which legalized the use of marijuana in limited circumstances for medical purposes. Under the Act, doctors can prescribe marijuana to be used by patients to alleviate symptoms related to certain "debilitating medical conditions." These prescriptions allow individual users to possess and grow limited amounts of marijuana for personal medical use. Questions that have been raised concerning the use of medical marijuana in a lodging facility include: What can we do if a guest insists on using medical marijuana in our hotel? What if they want to use medical marijuana in a non-smoking room? Can we simply ban all use of medical marijuana in any of our guest rooms? Unfortunately, the Act is not entirely clear on the scope of use of marijuana in these types of circumstances.
With regards to medical marijuana use outside of one’s own home, the Act prohibits such use "in a public place … or in public view…." A "public place" is defined as "a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designated for actual residence." While it is clear that this definition bars use of medical marijuana in a hotel lobby, it is very unclear as to whether the Act would bar such use in a hotel room, particularly in non-smoking hotel rooms and non-smoking lodging facilities. To consider this issue, it is helpful to consider other laws that may bear on this issue, including the Oregon Indoor Clean Air Act (the "Clean Air Act") and the Americans with Disabilities Act (the "ADA").
The Clean Air Act, which governs smoking in public places, provides that "no person shall smoke or carry any lighted smoking instrument in a public place except in those areas that are not required to be smoke free …"An exception to this rule is that smoking is permitted in "rooms designated by the owner or person in charge of a hotel as rooms in which smoking is permitted." Rooms are further defined as sleeping rooms in hotels and motels. Finally, a "smoking instrument" is defined as "any cigar, cigarette, pipe or other tobacco smoking equipment." Notably, this latter definition refers to "tobacco smoking equipment" and not smoking equipment in general. This omission raises the significant question as to whether the Clean Air Act would govern the use of medical marijuana at all. The better answer is that a properly posted notice and policy barring the use of all smoking, including medical marijuana, in non-smoking rooms would be enforceable under the Clean Air Act; however, this does not resolve the issue, particular in instances where a guest is claiming a right to use medical marijuana in a non-smoking room to alleviate conditions relating to a recognized disability.
Under the ADA, and its state law equivalent, it is unlawful to discriminate against individuals in places of public accommodation on the basis of disability. A lodging facility is a place of public accommodation. Of course, it is often quite difficult to determine whether a guest has a recognized disability under the Act. If they do, then the law requires the lodging facility to make reasonable accommodations for the disability. For example, the ADA requires lodging operators to allow a blind person with a seeing-eye dog to stay in a no-pet room without any additional fee and to otherwise be treated in the same manner as any other guest. The significant issue here is that we simply do not have any state or federal guidance on whether allowing a guest to smoke marijuana in a non-smoking room, or even in a smoking room for that matter, would constitute a reasonable accommodation where the guest claims that they need to smoke marijuana to alleviate symptoms relating to a recognized disability, such as muscular dystrophy, multiple sclerosis, etc. Without such guidance, and given the inherent ambiguities in the law, we simply cannot predict with any level of certainty how a court might rule on a claim that a medical marijuana user is entitled to reasonable accommodation to use marijuana in a non-smoking room; however, we do believe that such a claim would be very difficult to prove, regardless of the underlying disability.
Given the terms of the Act, the Clean Air Act, and the ADA as discussed above, it is clear that a lodging facility can prohibit use of marijuana in hallways, lobbies, and other "public" places. For a hotel with smoking rooms, it appears that it is lawful for a lodging facility to allow the use of medical marijuana in such rooms and to direct prospective medical marijuana using guests to these rooms. To this end, nothing in the law appears to prohibit requesting to see the guest’s medical marijuana prescription card as proof of the right to use medical marijuana, although it is important to note that it is strictly prohibited under the ADA to request any proof a guest’s disability as a condition to making a reasonable accommodation. Because of the ADA, the better practice is to simply rely upon the guest’s representations regarding his or her entitlement to use medical marijuana. If it later turns out that the guest was not truthful and is using marijuana illegally, the lodging facility can take the necessary steps to evict the guest or call the police as it would if it learned that a guest was illegally using drugs in one of its rooms.
With regards to instances where a guest requests to use medical marijuana in a non-smoking room, or in a non-smoking lodging facility, we do not believe that the laws discussed above would require the lodging facility to allow such use. To address this issue, we recommend that the lodging facility continue posting its non-smoking signs in the same manner as it is likely doing now. Additionally, the lodging facility will want to add a statement to its non-smoking policy that the policy also applies to smoking of medical marijuana on the same terms. Moreover, to the extent possible, we would recommend that this policy be relayed to guests when making reservations over the phone, on the web-based reservations systems and again on check-in.
This is an area of the law that will be developing over the years to come in Oregon and in other states that allow, or will allow, the use of medical marijuana. While taking the steps recommended above will not guarantee that a guest will not try to raise a claim relating to the use of medical marijuana in your lodging facility, they should greatly minimize the risks of the same and help to properly inform guests of policies regarding medical marijuana use.