Marijuana with Attorney Mark Lee (Featuring Senator Michael Moore)

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This is part of the Worcester Rental Real Estate Networking and Training series.


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Mark: There’s a handout up here tonight. First off, I’m Mark Lee. Thank you. This is my second time addressing this august body. I had a good time the last time. I hope you have some great questions tonight.

Male Audience 1: Close to the mike.

Mark: Close to the mike, he said.

Male Audience 1: Please.

Mark: I need to project more from the diaphragm. I come in at the tail-end of whatever was going on in the hallway and I sit down at a table, and there is a gentleman who sits down with me, looks vaguely familiar to me, and it turns out it’s Sen. Michael Moore. Stand up, Mike. Say hi [applause].
You know, Wednesday night, I met Sen. Michael Moore and he says to me, “We just on Monday passed an amendment to the new law extending implementation of certain provisions from January to July.”
I said, “Well, what about Section 2 subsection D?”

Male Audience 1: Yeah.

Mark: He says to me, “I think that we extended that, too.”
I said, “Mike, I might as well go home. That’s what I’m here to talk about.”
Good news! Mike gave me a handout from this morning, dated today at 10:31 AM, which just addresses what part of section 2 was extended, an only clause, one was extended. There is no reason to be worried about marijuana being legal in Massachusetts to possess or smoke as far as being an owner of property or manager of property. Chapter 94G Section 2 subsection D states, “This chapter shall not be construed to prevent a person from prohibiting or otherwise regulating the consumption, display, production-” which I know a lot of you are concerned about pot plants growing - “processing, manufacture, or sale of marijuana and marijuana accessories on or in a property the person owns, occupies, or manages except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking.” Are we all clear on that?

Male Audience 2: You can’t smoke in the building.

Mark: You can tell them you can’t smoke it. You take it by pill form or other means, maybe bake it in brownies.

Male Audience 2: That will ignite, too.

Mark: Somebody is saying that it ignites weed. I’ve ignited a lot of weed, never in an oven [laughter]. I’ve destroyed a lot with fire. It was 29 years ago, but the halcyon days of my youth, I smoked about a silo full. Statute limitations is run.

Rich: I guess that answers my second question [laughter].

Mark: It does and it really explains a lot [laughter]. It’s an interesting law. It has all the regulation and the taxation, and there’s a lot of references to social justice which made no sense to me, but it’s only legal for adults who are 21 years and older. If you were to have a pot-friendly building, I think you might want to make sure that you put it on the tenant to comply with the law that no persons under the age of 21 can use marijuana or marijuana products. You can’t be criminally charged anymore for having an ounce or less of marijuana on your person. You can grow up to 6 plants, 12 plants for the household. If there are 2 adults over 21 in the house, mom can have 6 plants, dad can have 6 plants. Does anyone remember when Joe Camel was vilified?

Audience: Yeah.

Mark: I mean all this time, “Tobacco is bad. Tobacco is bad.” Now we’re legalizing pot. Excellent. Penalties. Cultivation in plain view or without a lock on the garden, I guess if you were going to grow a garden- “if you have an ounce or more in your possession, if you’re having a pot-friendly building and you’ve got a tenant who had more than an ounce in the apartment and they don’t lock it up, that’s a sanctionable offense. The law provides that you can’t use marijuana in a public place, so I guess the Led Zeppelin concert at TD Garden is out, not that it stopped anybody 15 years ago when I saw them, but okay. You can’t smoke marijuana anyplace where tobacco is prohibited.
Again, go back to the section we’re most interested in, which is in Section 2 subparagraph D. Rich Merlino is an excellent drafter of leases, just ask him, he’ll tell you.

Rich: That is not true. Ladies and gentlemen, don’t ask me.

Mark: He provided me with the boilerplate for this smoke-free addendum, which I just went through and basically put marijuana together with tobacco. We did add that this rider is in compliance with the building owner and property manager’s rights to restrict and limit the smoking, possession, cultivation, manufacture, or display of marijuana pursuant to Mass Gen Law Chapter 94G Section 6, “Nothing in this rider restricts the consumption of marijuana by means other than smoking.” This is just a smoke-free rider. This rider does not cover you if you want to restrict the cultivation of plants in the unit, grow lamps – I don’t know if any of you have ever had a building where the tenants did a grow room. It’s amazing. It’s amazing. I’ve walked into a few buildings with that and the meter outside going like this.
That’s a good news. The law has a very common sense approach towards the rental property provisions. You’re protected in regulating that conduct in your building just like tobacco smoke, you can regulate that. You can also regulate where and if it is smoked on your property on a general nuisance theory. It’s 2017, people don’t like cigarette smoke and they complain about marijuana smoke. I’m a landlord myself. I’ve lost good tenants over complaints with marijuana smoke.

Norm: Is there going to be...

Rich: Okay. Hold on one second. I know this is your first time to this meeting. I don’t walk that fast, so what we’re going to do is I’m going to go around the room and bring you the microphone. The reason for that by the way is because a lot of people do watch this online and if we don’t use the microphone, then the video just goes dead silent and it’s super awkward. I’m going to come back there, Norm. Is there anybody on my back to Norm?

Mark: Sandra.

Rich: Okay, I got a couple of people.

Female Audience 1: Can people raise their hand, too, so people can just call on you?

Rich: Yes, yes. We’re raising our hands. Thank you. Here you go.

Bill: I’m Bill Cozenza . My question is marijuana is an inhibitor of mental thinking. Is it not?

Mark: It is.

Bill: Okay. If it is done in a building that is confined, don’t you have mentally-inhibited people even if they’re not smoking?

Mark: You mean the impact of secondhand smoke?

Bill: No. If they’re not smoking. Say they are following the law and actually using it through medical purposes theoretically by swallowing, I don't know, whatever concoction you make with the drugs through any pies, cakes, cookies, etc. But it inhibits the thinking ability does it not?

Sandra: People don’t wanna talk about...

Bill: I know but illegally if they’re walking up and down the sidewalk or in the apartment, there are problems that they’re going to cause.

Rich: I’m going to leave you to deal with that while I start walking. Thank you.

Mark: The law does address that in the same way that the law addresses drunk driving. The statute is written. It says nothing in the statute enables people to smoke marijuana and operate heavy machinery. Nothing in the law prevents employers from saying, “You’re not going to smoke pot at work.” Sen. Moore extrapolated with me on that as far as still employers still have the right to say we drug test and you can’t test positive for marijuana. But the law itself as far as the medicinal use of marijuana, not smoking but pill form, I don't know. I’m ignorant on what other forms there are other than pill form.

Male Audience 2: Marinol, gummy bears -

Rich: Is anybody in here a painter or sheet rocker? They all know the answer to that question.

Mark: [laughter] Okay.

Rich: In addition to that, yeah I imagine it doesn’t exactly make people brighter but I don’t want to break anybody’s heart but I’ve got plenty of residents that don’t need any help in that. You would know the difference anyway [laughter]. The same can be said for a lot of landlords, too, right.

Sandra: It’s actually – the question is directed to the senator – one the concerns that I think a lot of us have when you are going to revise the laws that surround this particular issue and for us, it has a lot to do with insurance and what happens to our buildings if in fact someone has decided to grow either 6, 12 plants. We finally come upon it later on. There’s just so much that we can know about our own buildings at certain times, but all of a sudden you have this and you now have a mold issue as well as other issues where you’ve got a battle between your tenants.
My question to you is when you start to really look at this law and how you’re going to tweak it, one of the big issues has to do with whether or not we’re going to be impacted on our insurance on a building where all of a sudden we’ve got pot growing up the yin-yang and how we do not have our insurance canceled just like we can if there is a pit bull in your building and all of a sudden the insurance company finds out about it and all of a sudden you’re canceled.
I would say to you that one of the major concerns that we have is that (1) what the insurance company is going to do to us, and (2) how it’s going to impact us on two other levels. One if this whose issue of mold that is a real potential, a possibility in our units, and the other is the abnormal usage of the water because if they are in fact growing it, they need both the electricity and they need the water, and therefore, we’re the ones that are going to be severely impacted on this, and there’s got to be something that you guys have got to do to make sure that we’re protected.

Mark: Sandra -

Rich: I’m going to toss this back to Mark [applause].

Mark: The microphone heads to the senator.

Rich: The law doesn’t permit anybody growing pot in my yin-yang, does it[laughter]? That’s -

Mark: Fortunately, no.

Rich: All right, that’s excellent news, so -

Mark: But that’s a criminal enterprise right now that you’re discussing. You’re talking more than 6 plants for an individual.

Male Audience 2: No.

Sandra: No.

Rich: If you have 12 plants, there’s going to be extra water usage, there is increased potential for mold growth in the apartment.

Mark: Any more than your geranium?

Audience: No.

Rich: Excellent, okay. Let’s turn this into instead of putting the onus on the lawmakers, let’s see if we can do this internally because it’s way easier to have something on our lease than it is to change the law, right?

Mark: Right.

Rich: Can we have – you had mentioned that - are you trying to get in here?

Doug: Let the senator have the chance to answer Sandra’s question.

Rich: I’m trying to let the senator off the hook but I’m going to walk back there.

Male Audience 2: He’s coming up.

Mark: He’s coming up.

Rich: He’s coming up here. Okay. You had mentioned that as far as growing it in the apartment, we can have something in our lease that prevents the growing of plants in the apartment. We could specify a certain number of plants and stuff like that in general without even specifying marijuana plants.

Male Audience 2: No.

Rich: Sen. Michael Moore, ladies and gentlemen.

Sandra: All right [applause].

Michael: I said to my staff that – excuse me, I have a cold, so if you can’t hear me, just let me know. I said to my staff today, “Make sure I have some speaking points to this tonight because they’re going to ask me to speak.”
She said, “No, I already talked to them. No speaking involved.”
I said, “Okay.” First thing I wanted to stress, and actually I was going to make a recommendation after this was over about having a white paper done. This law was written by the marijuana industry, so what was passed and when Mark and I were at the table, he said the legislature did a good job on one section. Not that I don’t want credit for something we didn’t do, but we had nothing to do with the drafting of this legislation. This was written by the marijuana industry, which is a $6 billion industry. The good portion of the law is in direct contradiction of what was passed in Colorado, and one of the issues is in Massachusetts, the communities have to vote opt out of allowing it. Colorado, the first state that passed this, the counties had to vote in if they wanted to allow it.
This law was written – Sandra, this goes to your point – this law was written to benefit the growth of this industry. What we are doing in the legislature is we delayed a good portion of the law for 6 months, so that we can have time to come back and address many issues, and there’s going to be something that we don’t even know about like what you just talked about with the mold and all this. This is where we are going to need input from a landlord association and other industries or organizations to let us know what we have to look for when we are going to be addressing this.
Every January when we have the start of the legislative session, we get committee assignments. We’ve actually created a brand-new marijuana committee. It’s going to be a joint committee [laughter]. Yeah, that’s a good one. Yeah, I got to remember that one [laughter]. I don’t want to say it again. It’s going to be a committee consisting of house and senate members, so all legislation that’s going to deal with the marijuana issues that come up or legislation we’ll be going forth to this committee, so they haven’t appointed the committee members yet. Again, this is where I would recommend because we actually met with the farming association and they had concerns about how it’s going to affect their industry.
I would suggest that whether it’s through Mark, Rich, or someone that you put a list together of everything that you have concerns whether like you were talking with the mold that’s a legitimate issue, insurance, so that when we start debating these issues or you can have someone file something. We have until January 20th to file legislation for this upcoming session. If there’s something you want file like the other initiatives that you will be going forth with the escrow and the security deposits, you should try to get something put together or find one of us to file something for you, or at least get one of the reps or the senators a white paper on what we need to be looking for so that when something moves forward, we can try to amend it or look to address those issues.
But we’re going to try to tackle the tax issue, Massachusetts, the referendum on the call for 12 percent tax. Colorado, Washington State, Alaskan state, it ranges from 29 percent to over 30 percent in tax, so there’s still a black market. They claim that if this going to reduce the black market, there’s still a strong black market out there because Colorado with the homegrown - you think you got it bad with the six plants per person, max 12? - they allow six plants per person but I can grow six plants for 30 people I want in my property. There’s no restriction on the two people. They’ve got issues with the black market. There is nothing in the law for drugged driving. They’ve had a drastic increase in people being in fatal or serious injuries from drugged driving of motor vehicles.
You’re talking about people walking around under the influence in your buildings of marijuana, we have to tackle that issue and how you can test for it. The big issue is, and I know they regulate the smoking, but the biggest problem they have in Colorado is the edibles. The potency on a joint 30 years ago may have been 3 percent. Now it’s up. The potency of the THC is up to 80 percent. On the edibles, the potency of THC is up to 80 percent to 90 percent. The problem they’re having in Colorado with the medical issues and this is maybe something else that you have look out, too, is you’ll have someone - just take a cookie for example. The way they describe a serving size is you cut the cookie up in eights; one serving size would be that one eight of that cookie. It takes the body roughly 2 hours to digest that food. The problem they’re having the person, in 15 to 20 minutes as it goes by, they haven’t felt the buzz.

Male Audience 3: [unintelligible 0:19:22] cookie.

Michael: Then they go and they have some more, so by the time the body starts digesting it and moving forward, now you’ve got someone who’s consumed far more than what they should and the problem you have is you don’t have people having fatal overdoses, but you have them psychotic instances. Does everybody remember Chandler Jones when the Patriots was going to the playoffs last year and he had this synthetic marijuana? Those are the type of episodes that they’re having out there. They had drastic increases in people going to the emergency room also.
But also all I can stress is put your heads together, get a white paper to us, and I mean really sit down and think of all the possible things that you think we need to address because these next 6 months to a year on this or even longer, if this law is going to keep evolving, but we’re going to try to do a lot in the 6 months to try and address at least the basic issues that we really need to address.
I guess I will open up for questions if anybody has any questions other than Sandra [laughter].

Rich: In addition to that, I’m going to ask. Mark, are you going to be hanging around after the meeting if people have additional questions for you?

Mark: How much longer?

Rich: The meeting is going to end late. It’s not going to end right at 8:30.

Mark: I got to get going.

Rich: All right.

Mark: I’ll leave cards on the table.

Rich: Okay, so we’re going to keep going around with questions. I have on the subject of mold because that’s a really big concern for everybody. I have a question for may be Mark. I have something in my lease that talks about water damage in general, and if they’re doing something where the tub overflows whatever the case maybe that the respondents are responsible for anything, any water damage that they cause and something like that could be cause for eviction.
The damage obviously has already been done if this is happening, right, but is that something that would be valuable for us to use as a tool to at least stop it from continuing and get them out them out of there?

Mark: As the law is written and the portions that are effective on December 15th, you can tell your tenants you can’t grow here, okay? It’s not clear to me that if they’re not smoking it and not growing it, you can tell them you can’t have an ounce of weed in your apartment and use it elsewhere, okay? As an adult, as an over 21, you’re allowed to have more than an ounce in the apartment if you keep it locked up. They’re not growing it. They’re not smoking it. You wouldn’t even know they had it otherwise.
I don’t know where the landlords are going to fall on those issues, but as the law is currently drafted, you as a property manager can tell a tenant you’re not growing it here.

Male Audience 3: Good.

Sandra: I’m reading about that there’s [unintelligible 0:22:13].

Mark: No, because the legislation – I’m reading right from the legislation.

Rich: I know.

Mark: “This chapter shall not be construed to prevent you from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture, or sale of marijuana, or marijuana accessories on or in a property the person owns, occupies, or manages.”
Now if you come to me and say this is what I want to do, I’m going to court with that legislation and I’m saying to the judge tell me otherwise.

Michael: The other thing you may have to worry about if you’re looking at that discrimination, don’t forget we have medical marijuana. I don’t know the contrast there with that, what the law states for that. You have to remember, too, is that medical marijuana there is a difference in the consistency of the marijuana. The medicinal purposes of the marijuana in medical, I think it’s called CBG or CBD, I’m forgetting it, that’s actually the part. There’s a higher potency of that in the marijuana than the THC, so that’s the difference, too. When you have someone taking the medical marijuana, the CBG [CBD] or whatever that potency is, THC is the recreational, but medical is CBG [CBD] I think it is and that doesn’t have the same buzz effect as the THC, so that’s maybe why they’re referencing this in the law but allowing other than smoking.
Also, not to get off track, Mark mentioned before for anyone that does smoke or if you have family members, and you know with this in Colorado, there is actually a case law on this and this is actually I think pending in Massachusetts even with the medical marijuana. If you work for an employer who has a no-drug policy and you have a prescription for medical marijuana and you were found to test positive on it, they can still terminate you. It’s against federal law, so they can terminate you. This is another contradiction we’re going to have with the law in the fact that you have people who have CDL licenses, for example, truck drivers, bus drivers, now they can go out and smoke some marijuana or eat some marijuana on a Friday night, the following week they can go to work, get tested. Marijuana, the THC, can stay in your fat cells for over 30 days, so they may not be an influence but they can be tested for it and they can found to have violated. You’re going to have a lot of employment issues.
The other thing, too, also is it’s against federal law because it’s a Federal Class 1 drug, financial institutions cannot handle the cash from it. There’s only one bank in Colorado that’s a credit union that has taken the chance to actually handle some of the transactions. Bank of America, Federal, Sovereign, all the major financial institutions have stayed away from it.
The Obama Administration through the Treasury issued what they call a Cold Memo and it allows financial institutions to handle this but there’s a strict guideline. If you got someone who wants a company that wants to grow this and they go in, they have to go back over-audit your records and the main concern is they don’t want to see anyone laundering money from another illegal operation into this. They’ve estimated that they have taken off $200 million to $300 million off the street just one bank, so there’s a lot of federal conflicts right now.
The Trump Administration, Jeff Sessions has already commented they’re going to line someone up and spoke that anyone who smokes marijuana is stupid, so there’s a good chance you could see this AG [attorney general] in there and if they remove that Cole Memo, that means that no financial institutions can be handling the cash.

Mark: Fun stuff, huh?

Doug: Yeah. I have a question for the room. I have read through the law, and I think it’s pretty good from a landlord’s point of view but my first reaction was well they don’t allow consumption in public and if a person is a renter and they want to smoke in particular like that’s their form, they can’t do it in public, so if they’re going to and sneak it in the apartment.
My question to the room is, would we be in favor of looser law around public consumption in order to reduce the chance of someone sneaking it in our apartments?

Audience: No.

Doug: No, not at all. Okay.

Audience: No.

Doug: All right. That was easy. Thank you.

Rich: Okay. we have a lot of questions left, and we are going to actually move on. The solution for that, one solution to that because I am somebody who has, you’re going to I’m joking, I actually sent an email to all the residents in one building with a link to the urban dictionary about fish bowling. Does anybody not know what fish bowling is? Okay, fish bowling is when you smoke weed in your car and it fills up with smoke and you get even higher that way. We had somebody in the building who was smoking pot in the building, and I said, “Look, just go do it. I don’t care if you do it. Just go it in the car, so it doesn’t piss off your neighbors.” That’s what they have done since then. That was the solution [laughter].

Mark: And they’re happy, Rich?

Rich: I hope you guys are writing this down.

Male Audience 3: They are happy [laughter].

Rich: Yeah, absolutely. I give them a bag of Doritos, they’re very happy residents [laughter]. Mark, how do people get in touch with you?

Mark: Cards are on the table and email is best.

Rich: Okay, so his business cards are up front. He likes emails. Okay, Sen. Moore, how do people get in touch with you?

Michael: They can to the state house website, or if you want, I got an email address, which is, or you can go over to our website and just let us know. But actually, what I would strongly recommend again, please put the white paper together because this law was not drafted by the legislature. The medical marijuana, the decriminalization, that was all citizens’ petitions and we had to respond to medical marijuana with a lot of problems.
This was one of the first referendums in my 8 years that I’ve attended that we are actually going to try to tinker with the will of the voters and make some corrective changes. Again, to protect your rights or to make it even stronger because you don’t want to see those other types of - as this moves forward, you don’t want to see someone draft a change in the law that’s going to hurt your rights.
Make sure you put something together for us so that we’re still advocate on your behalf. But as I said just a quick – I know that one gentleman back there earlier talk about petitions, you talked about petitions, coming from the legislature I don’t pay attention to citizens’ petitions over the Internet because they can come from anywhere in the country, the people. What I pay attention to are the emails from the people in my district and that’s emails or phone calls, so that’s far more important because we get legislation that I’ll get emails and calls from people from California, Texas, and we go right through them. Honestly, I don’t care what they think. I care what the voters in my district think. Just a little advice: if you’re going to do something, try to structure it so that we have the correspondence that goes to your legislator, it goes to your legislator.

Rich: Wow! Thank you very much. Thank you [applause].

[End 0:30:02]