Clearing the Smoke: Where Hoteliers Stand When Guests or Employees Use Washington’s Law to Justify Marijuana Use
Attorney Samantha (Sam) Noonan examines the intersection of Washington’s Smoking in Public Places, Medical Cannabis, and Recreational Marijuana laws.
(June 14, 2013) What happens when a hotel guest insists on smoking recreational marijuana in your hotel lobby? What about when your employee pops positive on a drug test and explains that he smokes cannabis for medical reasons? Understanding the intersection of two of Washington’s existing statutes, the Smoking in Public Places Law (RCW 70.160 et seq.) and the Medical Cannabis Law (RCW 69.51a), and Initiative 502, which legalizes recreational marijuana under Washington law, will help you respond in both cases.
Washington’s Smoking in Public Places Law
Washington’s 1985 Clean Indoor Air Act banned smoking in public places, except in certain designated smoking areas. In November 2005, Washington voters passed Initiative 901 (codified in 2006 and set forth as RCW 70.160 et seq.) to prohibit smoking in all places of employment and in all public places. The definition of “public place” includes bars, restaurants, recreational facilities and non-tribal casinos, and also includes private residences used to provide child care, foster case, adult care, or similar social services, and at least 75 percent of guestrooms within a hotel.
Section 70.160.075 of the Smoking in Public Places law prohibits smoking within 25 feet of entrances, exits, windows that open, and ventilation intakes that serve enclosed areas where smoking is prohibited. Under the language of the section, “[o]wners, operators, managers, employers or other persons who own or control a public place or place of employment may seek to rebut the presumption that 25 feet is a reasonable minimum distance by making application to the director of the local health department or district in which the public place or place of employment is located.” RCW 70.160.075.
Washington’s Medical Cannabis Law
Under Washington’s Medical Cannabis Law (RCW 69.51A et seq.), patients with certain medical conditions are legally able to possess limited amounts of marijuana with authorization from a doctor, physicians’ assistant, nurse practitioner or naturopathic physician. RCW 69.51A.010. Qualified patients are also permitted to grow their own medicine, or find a designated provider. The law also states certain guidelines under which patients may create and participate in collective gardens for the purpose of producing, transporting and delivering cannabis for medical use. RCW 69.51A.085.
The use or display of medical cannabis in a manner or place that is open to the view of the general public constitutes a class 3 civil infraction. These use and display limitations extend to hotels and motels. Hotels and motels are not required to provide any accommodation of any on-site medical use of cannabis. RCW 69.51A.060. Moreover, the law allows employers to establish drug-free work policies and does not require an accommodation for the medical use of cannabis if an employer has a drug-free workplace.
Initiative 502
While Washington is one of the first states to legalize the recreational use of marijuana, the use of or display of marijuana within public view is still illegal. Therefore, the smoking restrictions set forth under the Washington Smoking in Public Places law are not likely to apply to recreational marijuana use or display. Similarly, under the Medical Cannabis law, use or display of medical marijuana in the general public is prohibited.
Therefore, although there is no case law addressing such a scenario, it may be assumed that hotels or motels may effectively ban any public use or display of recreational marijuana in or around the property or any nearby public areas.
In further contrast to the Medical Cannabis Law, which allows qualified marijuana patients to engage in home growing or collective gardening, I-502 does not allow non-medical marijuana users to engage in home growing, sales or distribution of marijuana. The initiative does not address medical marijuana, nor does it change how or where medical marijuana outlets operate. Under the initiative, recreational-use marijuana must be purchased from a state-licensed retailer.
Initiative 502 allows the Washington State Liquor Control Board (WSLCB) until December 1, 2013, to write rules of a new system governing the implementation of I-502. Interestingly, I-502 does not address the topic of drug testing, but according to the WSLCB website, it is likely that employers may still elect to conduct drug testing at their discretion.
In summary, the laws and initiative discussed above are currently subject to the outcome of the rulemaking process, which is still underway.
ADDITIONAL RESOURCES
ACLU of Washington State Issue Page
Other WLA Updates on Washington’s Marijuana Laws:
Legal High: A Primer on I-502 and Washington’s Recreational Marijuana Law
None of the above should be considered legal advice, but is instead offered to provide information and address rising issues in the Washington hospitality industry related to Initiative 502. Please contact an attorney for specific legal advice.