Updated October 8, 2011
Voters and lawmakers in sixteen states and the District of Columbia have legalized medical cannabis (marijuana). The scope and details of these laws vary from one state to another, but each of the laws seeks to protect legitimate patients from criminal prosecution. Unfortunately, medical cannabis remains illegal under federal law. Patients and advocates hoped for a change in federal policy when President Barack Obama was elected in November of 2008. However, the President and his Administration have failed to uphold promises of a more enlightened policy.
On October 7, 2011, US Attorneys in California announced a new offensive against medical cannabis patients and providers in that state. Around the same time, the US Department of Justice (DOJ) started sending letters to property owners who rent to medical cannabis tenants threatening prosecution and asset forfeiture proceedings. This is not a new tactic. The Bush Administration sent similar letters in 2007, but never filed criminal or civil charges against a property owner.
Americans for Safe Access (ASA), the nationís leading medical cannabis advocacy organization, is already working with state and federal lawmakers to stop federal interference and intimidation like this. ASA is confident that we will be successful in harmonizing federal law with state laws that allow medical cannabis use. In the meantime, property owners may receive letters threatening them with penalties. Below you will find answers to some common questions about medical cannabis collectives, federal intimidation, and where you can get assistance.
Please contact ASA toll free at (888) 929-4367 or at email@example.com if you have questions or need assistance.
Frequently Asked Questions for Property Owners:
Asset Forfeiture and Medical Cannabis
Why should I rent space to a medical cannabis tenant?
Medical cannabis dispensing centers (MCDCs) and cultivators provide an incredibly important service both to medical cannabis patients and to the community at large, which has an interest in caring for its sick and dying members. Without MCDCs, many legitimate medical cannabis patients would have no way to get the medicine they need. Renting property to an MCDC is not just your right. It also assists in protecting patients and the community, while implementing state law.
Are MCDCs legal under state law?
Despite federal opposition, states are moving to regulate MCDCs and cultivation. The details vary from state to state, but in most cases, MCDCs and cultivating medicine can be legal. Your tenant should be able to demonstrate compliance with state and, where applicable, local regulations.
What is asset forfeiture?
Asset forfeiture refers to a civil or criminal action in which the state or federal government confiscates assets that were acquired with proceeds of a criminal act or were used to commit a criminal act. Congress and state legislatures created asset forfeiture laws to target large-scale narcotics trafficking operations, but they are most often used against small-scale offenders. Asset forfeiture laws generate a tremendous financial windfall for law enforcement agencies, and widespread abuse of these statues led to federal reform measures in 2000.
What are my risks as a landlord who rents to an MCDC?
The major risk is that, if the federal government chooses to, it can raid the MCDC; and at some point, it could initiate asset forfeiture proceedings or criminally prosecute even the landlords of such facilities. Medical cannabis is legal in sixteen states and the District of Columbia, but federal law still prohibits its use under any circumstances. Until federal law changes, people who use or provide medical cannabis are at risk of federal prosecution Ė even if their conduct is legal under state law and sanctioned by local government.
Despite threats by the DOJ, the risk of asset forfeiture proceedings against a landlord who is not the owner/operator of the facility is still relatively small. In 2007, the federal government did not follow through on any of its threats against property owners. In fact, in the sixteen years of federal opposition to medical cannabis, ASA is only aware of one instance where the federal government has been even partially successful in an asset forfeiture case against a non-owner/operator landlord (In that case, after the defendant raised a lack of proportionality defense, the government agreed to cease its attempt to seize the property in exchange for defendantís payment of a fine).
What would this have to do with my property?
The DOJ recently sent notices to property owners in California informing the owners that they may face criminal prosecution or asset forfeiture for knowingly renting their property to an MCDC or cultivator. The notices do not indicate that any property owner is being charged with a crime or is now subject to asset forfeiture. Because these notices do not initiate any particular action against the property owner, there is no requirement that the property owner respond to the notice or take any action. ASA strongly recommends you consult with an attorney experienced in asset forfeiture before talking with any law enforcement official.
Is this legal?
Yes. Although asset forfeiture charges are controversial, they have been upheld in court. The US Attorney's office can file criminal charges or initiate asset forfeiture charges if it can prove that a landlord knew that the actions of the tenant were illegal and did not take reasonable measures to stop those actions.
Why is this happening now?
The Drug Enforcement Administration (DEA) and DOJ have been active in trying to close and intimidate MCDCs in states where it is legal since 1996. Until now, the federal governmentís primary tool to do this was to raid a handful of facilities and confiscate the medical cannabis inside. Most of these raids do result in criminal prosecutions, and many raided facilities simply reopen. Sending notices to landlords is a cynical tactic designed to intimidate property owners into evicting the tenants without the cost and inevitable public backlash of raiding facilities. This tactic is also meant to discourage landlords from renting to collectives at all, in an effort to deny safe access to patients.
Does the US Attorney intend to prosecute property owners?
The US Attorney's office has the authority to prosecute property owners, but there is no indication as to whether or not they intend to do so. In 2007, the DEA and DOJ sent hundreds of letters to property owners, but never filed criminal or civil cases. Despite the new DOJ letters, there is still no firm evidence of the US Attorney moving to prosecute a property owner.
What should a landlord do upon receiving a notice?
Property owners who receive a notice from the DOJ have not been charged with a crime. Nevertheless, the landlord may wish to consult with his or her attorney or an asset forfeiture specialist about a landlord's rights and responsibilities under the law. Lawyers will likely advise you not to make any statement to the DOJ, indicating knowledge of or agreement with a tenant engaged in an allegedly illegal activity. Doing so may mean giving up important rights in the unlikely event that charges are filed.
There is no need to act immediately if one receives a notice, and there may never be a need to act at all. Any legal action that might be initiated would take months to unfold, so a landlord should take time to consider the issue and talk with the tenant, before making up her or his mind. Always remember that the DOJ is trying to intimidate and manipulate landlords into evicting these tenants as soon as possible. Landlords do not have to succumb to this pressure without due consideration of their own financial interest in maintaining the lease and their rights as a property owner.
What if a landlord was unaware of the tenant's actions?
Federal asset forfeiture laws provide for an "innocent owner" defense for property owners who were unaware of the allegedly illegal activity and subsequently take reasonable steps to stop the activity. In some instances, this may involve initiating eviction procedures or requiring tenants to refrain from violating the law. A landlord should discuss how the innocent owner defense applies with his or her lawyer or asset forfeiture specialist.
Where can landlords get help on this issue?
Americans for Safe Access (ASA) is working with state and federal lawmakers to ensure that landlords' rights are protected and that MCDC can remain open. Please contact our Oakland office toll free at (888) 929-4267 if you have further questions so that we can keep you posted about our work on this topic. ASA is the nation's largest organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. We have already won important court victories on medical cannabis issues and are leading the campaign to change federal medical cannabis laws. Visit http://www.AmericansForSafeAccess.org for more information about ASA.
You can find a list of lawyers who may be able to advise you about asset forfeiture issues by viewing the Attorney's Directory published by Forfeiture Endangers Americans Rights (FEAR) at http://www.FEAR.org This organization operates independently of ASA.