SMOKING OF MMJ AT FARMER'S MARKET
One of the municipalities that I represent has a monthly outdoor farmer's market that is held along the sidewalks on the main road through town. Various vendors set up their tables along the sidewalks to sell their products and/or provide promotional information to the public - very family-oriented. There has arisen an issue relating to the smoking/vaping of medical marijuana at the outdoor farmer's market and city officials would like clarification on the legality of smoking/vaping of MMJ in outdoor public places.
Does anyone have any advice or experienced a similar situation?
I also have a related issue: people who show up at the city’s gym and library facilities reeking of marijuana. This issue is causing complaints from other patrons. It would seem that the City could adopt a policy requiring that people coming to its facilities not present with offensive odors, but the question then becomes “what is offensive” and “who makes that determination.” I can see defining “offensive” in language that would be tied to a person of ordinary sensibilities, and the determination would need to be made by the facility staff. Anyone have a policy on personal hygiene at city facilities that they would be willing to share?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
Email: jmiller@cityofmustang.orgmailto:jmiller@cityofmustang.org
This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
From: law@anestorlaw.com law@anestorlaw.com
Sent: Wednesday, July 14, 2021 4:05 PM
To: oama@lists.imla.org
Subject: [Oama] SMOKING OF MMJ AT FARMER'S MARKET
One of the municipalities that I represent has a monthly outdoor farmer's market that is held along the sidewalks on the main road through town. Various vendors set up their tables along the sidewalks to sell their products and/or provide promotional information to the public - very family-oriented. There has arisen an issue relating to the smoking/vaping of medical marijuana at the outdoor farmer's market and city officials would like clarification on the legality of smoking/vaping of MMJ in outdoor public places.
Does anyone have any advice or experienced a similar situation?
On the first question, you should look at the Smoking in Public Places Act. 63 OS 1521 et seq. There’s also an AG opinion - 2013 AG 2 opinion. I believe cities are prohibited from adopting conflicting provisions.
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From: Jon Miller jonmiller@jem-pc.com
Sent: Thursday, July 15, 2021 10:44:28 AM
To: law@anestorlaw.com law@anestorlaw.com; oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
I also have a related issue: people who show up at the city’s gym and library facilities reeking of marijuana. This issue is causing complaints from other patrons. It would seem that the City could adopt a policy requiring that people coming to its facilities not present with offensive odors, but the question then becomes “what is offensive” and “who makes that determination.” I can see defining “offensive” in language that would be tied to a person of ordinary sensibilities, and the determination would need to be made by the facility staff. Anyone have a policy on personal hygiene at city facilities that they would be willing to share?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
Email: jmiller@cityofmustang.orgmailto:jmiller@cityofmustang.org
This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
From: law@anestorlaw.com law@anestorlaw.com
Sent: Wednesday, July 14, 2021 4:05 PM
To: oama@lists.imla.org
Subject: [Oama] SMOKING OF MMJ AT FARMER'S MARKET
One of the municipalities that I represent has a monthly outdoor farmer's market that is held along the sidewalks on the main road through town. Various vendors set up their tables along the sidewalks to sell their products and/or provide promotional information to the public - very family-oriented. There has arisen an issue relating to the smoking/vaping of medical marijuana at the outdoor farmer's market and city officials would like clarification on the legality of smoking/vaping of MMJ in outdoor public places.
Does anyone have any advice or experienced a similar situation?
CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.
The AG opinion, 2013 AG 2, may be found here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=468632
The Smoking in Public Places and Indoor Workplaces Act starts here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=437991
The final statute has a preemption clause that is referenced in the AG opinion and is linked here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=98521
It is important to note that the AG opinion was decided on February 5, 2013. The question was submitted by Senator Al McAffrey of District 46 who asked: "Are municipalities prohibited by the Smoking in Public Places and Indoor Workplaces Act, (63 O.S.2011 & Supp.2012, §§ 1-1521 - 1-1527), or the provisions of Oklahoma's public nuisance statute, 21 O.S.Supp.2012, § 1247, from enacting and enforcing ordinances banning public smoking in all outdoor areas of municipally owned or operated properties, including but not limited to all outdoor areas of municipal public parks?" The AG opined that statutory and charter municipalities were preempted from enacting any ordinances that were not consistent with the Smoking in Public Places and Indoor Workplaces Act.
However, the Oklahoma Legislature amended the preemption statute after the February 5, 2013 AG decision. The amended preemption statute became effective on November 1, 2013. The amendment added the following language, nothing was eliminated from 1-1527:
"; provided, however, that cities and towns shall be authorized to enact laws restricting smoking on properties owned or operated by the respective governing bodies. Nothing in this section shall be construed as to prevent county or municipal governments, at the discretion of the respective governing bodies, from prohibiting smoking in or on property owned or operated by the respective governing bodies."
I have not been able to find any AG, Appellate or Supreme Court opinion regarding 1-1527 subsequent to the amendment and dealing with municipal regulation of smoking any product.
Title 63 O.S. § 1-1523, as amended in 2019, brings marijuana smoking and marijuana vaping within the ambit of the Smoking in Public Places and Indoor Workplaces Act. It then appears that a municipality may be able lawfully enact an ordinance restricting the smoking of marijuana and marijuana vaping on property owned or operated by the city or town. Absent any ordinance, state statute would permit the smoking and vaping of marijuana at outdoor spaces that do not fit within the parameters of the Smoking in Public Places and Indoor Workplaces Act. I have not found any opinions published on enacting ordinances restricting marijuana smoking or vaping since the statute was amended two years ago.
One last little thought. Vaping tobacco does not seem to fall with the ambit of the Smoking in Public Places and Indoor Workplaces Act.
This is at least a start, hopefully, it will be helpful.
Ray
From: Douglas, Amy G Amy.Douglas@okc.gov
Sent: Thursday, July 15, 2021 12:04 PM
To: Jon Miller jonmiller@jem-pc.com; law@anestorlaw.com; oama@lists.imla.org
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
On the first question, you should look at the Smoking in Public Places Act. 63 OS 1521 et seq. There's also an AG opinion - 2013 AG 2 opinion. I believe cities are prohibited from adopting conflicting provisions.
Get Outlook for iOShttps://aka.ms/o0ukef
From: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>
Sent: Thursday, July 15, 2021 10:44:28 AM
To: law@anestorlaw.commailto:law@anestorlaw.com <law@anestorlaw.commailto:law@anestorlaw.com>; oama@lists.imla.orgmailto:oama@lists.imla.org <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
I also have a related issue: people who show up at the city's gym and library facilities reeking of marijuana. This issue is causing complaints from other patrons. It would seem that the City could adopt a policy requiring that people coming to its facilities not present with offensive odors, but the question then becomes "what is offensive" and "who makes that determination." I can see defining "offensive" in language that would be tied to a person of ordinary sensibilities, and the determination would need to be made by the facility staff. Anyone have a policy on personal hygiene at city facilities that they would be willing to share?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
Email: jmiller@cityofmustang.orgmailto:jmiller@cityofmustang.org
This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
From: law@anestorlaw.commailto:law@anestorlaw.com <law@anestorlaw.commailto:law@anestorlaw.com>
Sent: Wednesday, July 14, 2021 4:05 PM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: [Oama] SMOKING OF MMJ AT FARMER'S MARKET
One of the municipalities that I represent has a monthly outdoor farmer's market that is held along the sidewalks on the main road through town. Various vendors set up their tables along the sidewalks to sell their products and/or provide promotional information to the public - very family-oriented. There has arisen an issue relating to the smoking/vaping of medical marijuana at the outdoor farmer's market and city officials would like clarification on the legality of smoking/vaping of MMJ in outdoor public places.
Does anyone have any advice or experienced a similar situation?
CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.
From: Ray Jones jones@lytlesoule.com
Sent: Thursday, July 15, 2021 2:19 PM
To: Douglas, Amy G Amy.Douglas@okc.gov; Jon Miller jonmiller@jem-pc.com; law@anestorlaw.com; oama@lists.imla.org
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
The AG opinion, 2013 AG 2, may be found here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=468632https://urldefense.proofpoint.com/v2/url?u=https-3A__www.oscn.net_applications_oscn_DeliverDocument.asp-3FCiteID-3D468632&d=DwMFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=Ll58dmLGhIABJpaq8UvAdIYxm_dhen1vTbFO2IrUH5Y&m=uwD4vXC8BqPuGwtNGiWoXGmqctW1xvCZk-EZGSZNTog&s=lDyT5AfmmpWvCIa7Je-izruc2HtvES-E7GIBHtrr9D4&e=
The Smoking in Public Places and Indoor Workplaces Act starts here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=437991https://urldefense.proofpoint.com/v2/url?u=https-3A__www.oscn.net_applications_oscn_DeliverDocument.asp-3FCiteID-3D437991&d=DwMFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=Ll58dmLGhIABJpaq8UvAdIYxm_dhen1vTbFO2IrUH5Y&m=uwD4vXC8BqPuGwtNGiWoXGmqctW1xvCZk-EZGSZNTog&s=R8BBwHWEsaazfCYIzdYsgjfptSUkzbnJ8pLtDWNsY0E&e=
The final statute has a preemption clause that is referenced in the AG opinion and is linked here:
https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=98521https://urldefense.proofpoint.com/v2/url?u=https-3A__www.oscn.net_applications_oscn_DeliverDocument.asp-3FCiteID-3D98521&d=DwMFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=Ll58dmLGhIABJpaq8UvAdIYxm_dhen1vTbFO2IrUH5Y&m=uwD4vXC8BqPuGwtNGiWoXGmqctW1xvCZk-EZGSZNTog&s=qHmBI2nS96_7goWdbsXe2A-sCNr-qa0aRxkRd3AsnaA&e=
It is important to note that the AG opinion was decided on February 5, 2013. The question was submitted by Senator Al McAffrey of District 46 who asked: "Are municipalities prohibited by the Smoking in Public Places and Indoor Workplaces Act, (63 O.S.2011 & Supp.2012, §§ 1-1521 - 1-1527), or the provisions of Oklahoma's public nuisance statute, 21 O.S.Supp.2012, § 1247, from enacting and enforcing ordinances banning public smoking in all outdoor areas of municipally owned or operated properties, including but not limited to all outdoor areas of municipal public parks?" The AG opined that statutory and charter municipalities were preempted from enacting any ordinances that were not consistent with the Smoking in Public Places and Indoor Workplaces Act.
However, the Oklahoma Legislature amended the preemption statute after the February 5, 2013 AG decision. The amended preemption statute became effective on November 1, 2013. The amendment added the following language, nothing was eliminated from 1-1527:
"; provided, however, that cities and towns shall be authorized to enact laws restricting smoking on properties owned or operated by the respective governing bodies. Nothing in this section shall be construed as to prevent county or municipal governments, at the discretion of the respective governing bodies, from prohibiting smoking in or on property owned or operated by the respective governing bodies."
I have not been able to find any AG, Appellate or Supreme Court opinion regarding 1-1527 subsequent to the amendment and dealing with municipal regulation of smoking any product.
Title 63 O.S. § 1-1523, as amended in 2019, brings marijuana smoking and marijuana vaping within the ambit of the Smoking in Public Places and Indoor Workplaces Act. It then appears that a municipality may be able lawfully enact an ordinance restricting the smoking of marijuana and marijuana vaping on property owned or operated by the city or town. Absent any ordinance, state statute would permit the smoking and vaping of marijuana at outdoor spaces that do not fit within the parameters of the Smoking in Public Places and Indoor Workplaces Act. I have not found any opinions published on enacting ordinances restricting marijuana smoking or vaping since the statute was amended two years ago.
One last little thought. Vaping tobacco does not seem to fall with the ambit of the Smoking in Public Places and Indoor Workplaces Act.
This is at least a start, hopefully, it will be helpful.
Ray
From: Douglas, Amy G <Amy.Douglas@okc.govmailto:Amy.Douglas@okc.gov>
Sent: Thursday, July 15, 2021 12:04 PM
To: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>; law@anestorlaw.commailto:law@anestorlaw.com; oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
On the first question, you should look at the Smoking in Public Places Act. 63 OS 1521 et seq. There's also an AG opinion - 2013 AG 2 opinion. I believe cities are prohibited from adopting conflicting provisions.
From: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>
Sent: Thursday, July 15, 2021 10:44:28 AM
To: law@anestorlaw.commailto:law@anestorlaw.com <law@anestorlaw.commailto:law@anestorlaw.com>; oama@lists.imla.orgmailto:oama@lists.imla.org <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Re: SMOKING OF MMJ AT FARMER'S MARKET
I also have a related issue: people who show up at the city's gym and library facilities reeking of marijuana. This issue is causing complaints from other patrons. It would seem that the City could adopt a policy requiring that people coming to its facilities not present with offensive odors, but the question then becomes "what is offensive" and "who makes that determination." I can see defining "offensive" in language that would be tied to a person of ordinary sensibilities, and the determination would need to be made by the facility staff. Anyone have a policy on personal hygiene at city facilities that they would be willing to share?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
Email: jmiller@cityofmustang.orgmailto:jmiller@cityofmustang.org
This message is sent by a lawyer and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments. This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender. Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
From: law@anestorlaw.commailto:law@anestorlaw.com <law@anestorlaw.commailto:law@anestorlaw.com>
Sent: Wednesday, July 14, 2021 4:05 PM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: [Oama] SMOKING OF MMJ AT FARMER'S MARKET
One of the municipalities that I represent has a monthly outdoor farmer's market that is held along the sidewalks on the main road through town. Various vendors set up their tables along the sidewalks to sell their products and/or provide promotional information to the public - very family-oriented. There has arisen an issue relating to the smoking/vaping of medical marijuana at the outdoor farmer's market and city officials would like clarification on the legality of smoking/vaping of MMJ in outdoor public places.
Does anyone have any advice or experienced a similar situation?
CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.