Unlike medical marijuana, Edition 2 would allow smoking. This raises questions about property rights

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By journalsofus.com


COLUMBUS, Ohio – If Ohio voters approve a recreational marijuana ballot initiative – and if the legislature leaves it untouched – adults would be allowed to do something the state’s medical marijuana program has prohibited since its inception: smoke.

Under Ohio’s medical marijuana program, smoking is prohibited, although vaping and using edibles, oils, tinctures, and patches are permitted. But if State Question 2 passes on Nov. 7, recreational users would be allowed to smoke.

The proposed change to Ohio law would give private property owners the power to ban smoking on their premises. However, campaigns on each side of the issue question how strong the proposal is to give private property owners the power to ban vaping, edibles and other forms of the drug on their premises.

Number 2 would allow Ohioans over the age of 21 to possess and use marijuana. They could purchase it from licensed dispensaries, paying a 10% tax on top of sales taxes. Under the proposal, people would also be able to grow up to six marijuana plants, or up to 12 per household.

But because Question 2 is presented as an initiated statute and not a constitutional amendment, the legislature can repeal or amend it if it passes.

Ohio Senate President Matt Huffman, a Republican from Lima who opposes recreational marijuana, He said he wants to change some parts of it, specifically redirecting where some of the tax revenue is sent. In the Ohio House of Representatives, state Rep. Jamie Callender, a Lake County Republican who will vote in favor of Issue 2, He said he believes the legislature will inevitably make changes if approved.

More Ohio Marijuana Stories, Number 2

As lawmakers worked on the 2016 bill that legalized medical marijuana, they debated whether Ohioans should be allowed to smoke the medicine since people don’t smoke other medicines. An early version of the bill created a commission that would decide the smoking issue. But finally, the bill that was approved by the General Assembly combustion explicitly prohibitedor smoke.

Ohio medical marijuana dispensaries sell flowers and other parts of the plant because some people vaporize it. Vaping heats the plant to the point that it releases chemicals but not smoke.

The CDC and the American Lung Association say smoking marijuana can be harmful to the lungs and cardiovascular system. But it’s unclear how many patients ignore the combustion ban and smoke it at home, out of the sight of police and state regulators.

Smoking is legal in each of the 23 states that have adult-use programs, said Tom Haren, a Cleveland attorney who is part of the campaign backing Issue 2, the Coalition to Regulate Marijuana Like Alcohol, made up of Licensed Ohio Medical Marijuana Companies.

If Ohio were No. 24, Haren said they should be allowed to smoke, too.

“That is the preferred method of consumption for many Ohioans, and we are focused on ending marijuana prohibition and ensuring that marijuana use does not lead to interactions with law enforcement,” he said.

Recreational Marijuana Choice: Read more coverage here.

Question 2 is proposed as a 41 page law which contains two provisions for property owners: that public places cannot be required to accommodate individual adult-use cannabis; nor can they be prohibited from hosting it.

That leaves owners to make decisions about whether establishments will allow marijuana use, Haren said.

“This is about private property rights,” he said. “If I’m a restaurant or a comedy club, that’s my business. I can say whether or not marijuana can be allowed. Just like you may or may not allow alcohol.”

But the campaign opposing Issue 2 – called Protect Ohio Workers and Families, which is made up of children’s health care groups, law enforcement and businesses – says there is ambiguity about the extent to which private owners can prohibit the persons to use, possess, and display or transfer marijuana on their property, in addition to existing smoking prohibitions.

“First question: What constitutes a ‘public’?” asked Rick Carfagna, senior vice president of government affairs for the Ohio Chamber of Commerce. “It’s not defined anywhere in the statute…What is ‘accommodating’? Does this mean property owners don’t have to provide a designated marijuana use area where people can get high? Or do the owners have the full right, complete freedom to prohibit all cannabis products in all places on the premises? Is this simply a matter of applying the existing smoking ban to marijuana?

Columbus attorney Eric Wittenberg, who practices commercial and residential property law, interprets the proposal as prohibiting property owners from actively stopping marijuana use, except smoking.

The proposal does not allow places such as shopping malls, movie theaters, bars, restaurants and others to prohibit the consumption, possession or transfer of cannabis products on their properties, Wittenberg said.

“And that is another of the weaknesses that I consider of the legislation,” he stated. “But the legislation was written by the cannabis companies, so of course it’s written in their favor.”

And even if a court ruled that the proposed law allowed private landowners to ban marijuana, “How are they going to police that?” she asked. “Smoking is easy because of the smoke, but how can you control someone from eating edibles? Thats the big problem. There is no way of knowing”.

Haren said it’s a red herring thrown by people who oppose marijuana use. He pointed to the section of the state’s medical marijuana law from which the recreational marijuana campaign got its language.

The medical marijuana statute establishes that the law does not: “Require that no public accommodation admit the use of medical marijuana by a registered patient… Prohibit any public accommodation from admitting the use of medical marijuana by a registered patient.”

There are also no definitions of “public” or “accommodation” in medical law, Haren said.

“The clause in question is verbatim from this section of Ohio’s medical marijuana law,” he said. “I never heard in the chamber six or seven years ago about the ambiguity in this language. It seems to me that everyone has known what these clauses mean for six or seven years.”

Laura Hancock covers state government and politics for The Plain Dealer and cleveland.com.

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