BY MATTHEW D. LOWEThis article originally appeared in the April/May edition of the Oregon Restaurant and Lodging Association's Lodging News Magazine
On November 4, 2014, Oregon voters passed Ballot Measure 91 (now codified at ORS Chapter 475B), which legalized the possession, use, and sale of recreational marijuana. As of July 1, 2015, Oregonians are allowed to grow limited amounts of marijuana on their property and to possess limited amounts for their personal use. Additionally, the Oregon Liquor Control Commission has commenced issuing retail licenses for the commercial sale of marijuana throughout Oregon. Due to the legalization of the use and sale of marijuana in Oregon, many lodging operators and owners have raised questions as to their rights and obligations to either allow or prohibit such use in their hotel and motel rooms.
To properly consider these questions, and others that will surely arise, it is important first to look at the definition of a “public place” as defined in the law. ORS 475B.015(28), and the applicable regulation, defines a “public place” to mean:
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 designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and areas used in connection with public passenger transportation.
Notably, this definition is precisely the same definition that was applicable to the use of medical marijuana in Oregon prior to the passage of the recreational marijuana law. While it is clear that this definition bars the use of marijuana in a hotel lobby, it is much less clear whether the law bars such use in a hotel or motel room, whether it is in designated smoking rooms, non-smoking rooms, or non-smoking lodging facilities.
From our interpretation of the law, we believe that recreational marijuana may be used in a hotel room. Under the definition above, a hotel or motel room is a room designed for actual residence and is distinguished under the definition from other locations that are clearly public in nature (i.e., lobbies, hallways, etc.).
While a hotel or motel room is likely not a “public place” as contemplated under the marijuana law, lodging facility owners and operators do retain discretion to prohibit the recreational use of marijuana in hotel and motel rooms. This is so regardless of the designation of rooms as smoking or non-smoking rooms. This conclusion is based, in part, on the absence of any such restrictions in the recreational marijuana law, as well as the Indoor Clean Air Act (“ICAA” – also known as the Smokefree Workplace Law). You will recall that the ICAA prohibits smoking in the workplace and within 10 feet of all entrances, exits, windows, air-intake vents, and accessibility ramps that lead to and from an entrance or exit. While workplaces include hotels and motels, the ICAA expressly allows hotels and motels to designate up to 25 percent of guest rooms as smoking rooms. Smoking under the law includes the smoking of marijuana, whether in cigarette form, or any other instrument used to smoke tobacco, marijuana, or any other inhalant. Importantly, the decision whether to designate any smoking rooms in a lodging facility is entirely within the discretion of the lodging facility owner or operator. Therefore, it is also entirely within the discretion of the lodging owner or operator to prohibit the use of marijuana on the lodging premises regardless of whether the facility has designated smoking rooms or not.
If lodging facilities would like to allow the use of recreational marijuana in hotel or motel rooms, they can only do so in those rooms that are designated as smoking rooms under the ICAA. Allowing use in non-smoking rooms would violate the ICAA, which contains strict requirements to be followed with lodging owners and operators that have made the decision to allow for smoking rooms in the hotel or motel.
Finally, lodging operators should also note that passage of the new recreational marijuana law did not otherwise repeal or supersede Oregon’s medical marijuana law, which remains in effect and which was updated by the Oregon Legislature in 2015. A question that arises under the medical marijuana law is whether a lodging operator must allow for medical marijuana use in a lodging facility as a so-called “reasonable accommodation” under the Americans with Disabilities Act and its equivalent Oregon law. Under case law decided by the Oregon Supreme Court in 2010, the answer to that question is likely “no,” in part due to the fact that marijuana remains an illegal controlled substance under federal law.
In summary, we believe that under the new recreational marijuana law, as well as the “old” medical marijuana law, lodging facilities may regulate such use in a manner consistent with smoking rules under the ICAA. We strongly recommend that lodging owners and operators develop a policy for such use, whether such policy allows it in smoking rooms or prohibits marijuana smoking altogether. Importantly, even if a lodging facility allows non-marijuana smoking in designated smoking rooms, the facility may still prohibit marijuana use in those rooms. Regardless of how the property decides to regulate marijuana smoking in designated smoking rooms, at no time is marijuana smoking authorized under the law in any other part of the lodging facility due to the absolute prohibition against smoking marijuana in a public place.
Matthew Lowe is an attorney with Jordan Ramis PC. His practice includes the representation of hotels, motels, and restaurants, and he is a member of the Oregon Restaurant and Lodging Association. If you would like assistance in developing a suitable marijuana use policy for your hotel or motel, you can contact him at firstname.lastname@example.org or 503-598-5586.