October 2, 2014

Amy Bellman: So Your Hotel Guest Is Permitted To Use Medical Marijuana . . .

Medical marijuana has been legal in Colorado since voters passed Amendment 20 in 2000.  As of June 2011, the Colorado Department of Public Health and Environment (“CDPHE”) had issued over 125,000 ID cards under the Medical Marijuana Registry program.  CDPHE statistics indicate that those holding ID cards are primarily male, have an average age of 40, and are far more likely to suffer from muscle spasms (20%) or severare pain (94%) than from cancer (2%) or glaucoma (1%).

CDPHE statistics do not discuss the travel habits of those holding ID cards.  But presuming that the muscle spasms subside enough to allow for some rest and relaxation, a person holding a medical marijuana ID card may presume that he can smoke on hotel/timeshare resort property.  If the hotel or timeshare resort is in Colorado, here are a couple things for the operator to consider when faced with this scenario.

It Is Unlikely that the DOJ Would Pursue an Americans With Disabilities Claim if a Hotel/Timeshare Resort Prohibited a Guest from Smoking Medical Marijuana

Many hotels and timeshare resorts are concerned that they could be subject to ADA liability for prohibiting a guest from smoking medical marijuana.  Although this issue is not entirely free from doubt, the Department of Justice (“DOJ”) (the agency that enforces the ADA) has issued two memos (one in October 2009 and the other in June 2011) generally addressing medical marijuana laws.  In the 2009 memo, the DOJ took the position that although medically prescribed marijuana is still an illegal drug under federal law, it is not going to waste resources chasing small-time legitimate medical users in states where such use is permitted.  In the 2011 memo (issued only one month ago), the DOJ reiterates that it won’t pursue small-time legitimate users, but warns that it will prosecute large scale, commercial medical marijuana growers.  Based on these memos, we think it unlikely that the DOJ would pursue a course of action that would require hotels and timeshare resorts to accommodate this activity, absent special circumstances.

Under Colorado Law, Hotels & Timeshare Resorts Are Not Required to Accommodate a Guest’s Use of Medical Marijuana

The Colorado Clean Indoor Air Act, which prohibits smoking in certain public places and gives owners/managers the right to prohibit smoking in their facilities, does not distinguish the smoking of medical marijuana from the smoking of cigarettes, cigars, pipes or other tobacco products.  Accordingly, managers of hotels and timeshare properties should be free to prohibit the smoking of medical marijuana in the same way that they prohibit the smoking of tobacco products.

In addition, FAQs published on CDPHE’s website provide that a patient is only legally permitted to smoke medical marijuana in his or her home; it is illegal to smoke medical marijuana in plain view of, or in a place open to, the general public.  Presuming that the resort does maintain a public designated smoking area, the CDPHE policy would not permit guests to smoke medical marijuana in that area.

Amy Bellman is an associate at Baker Hostetler who focuses her practice on both real estate and hospitality law. She contributes to the firm’s Hospitality Lawg, where this post originally appeared on August 1, 2011.

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