Gordon Law

New Practice Areas Flying High

By Nicholas Gaffney

New areas of law develop quickly these days, presenting unique legal and business challenges. What are some of the most pressing issues with these novel and constantly evolving facets of the law? In this month’s discussion, we hear from four trailblazers about two distinct and cutting-edge areas: marijuana and drone law.​

Marijuana Law Roundtable

NG: When did you start practicing marijuana law?​ 

AG: I began representing marijuana clients in 2015. I have represented clients in the corporate structure as well as licensing agreements among marijuana sellers.

JM: I started practicing medical marijuana law in California shortly after I began practicing law, in approximately February 2010. It’s made up about 80-90% of my practice since then. I focus on collective, dispensary and medical marijuana business formation, counseling and regulation, but also work with landlords who lease to such businesses. I also represent some qualified patients and collective operators in criminal court.

NG: What attracted you to this area? 

AG: Medical marijuana just recently became legal in Nevada, and given my holistic representation of businesses, the implications of legalized marijuana affects most of my clients. The effect exists regardless of the business. There are far reaching implications in the employer/employee relationship, along with the potential liability in the event that injury results from impairment.

JM: Medical marijuana law was—and remains—an ever-changing and constant challenge. I knew I would never be bored or done learning. I also appreciated that medical marijuana law is part of the broader movement to reform drug policy in the United States, and wanted to be part of those social and legal changes.

NG: What are some of the emerging legal/business issues involving marijuana law that you find most interesting? 

AG: I am drawn in by the inherent conflicts among state and federal law, along with how an employer has to navigate the inconsistencies as well as the unknown factors. I think the liability implications to an employer who knowingly employs a marijuana user can be far reaching, with substantial unintended consequences on HIPAA, the ADA, and the potential of injury resulting from an impaired employee. If an employee is a legal medical marijuana user, what is the employer’s obligations or abilities to limit the type of work that the employee does? There is a complete collision between the obligation to provide accommodation to an employee with a medical condition (under federal law) and preventing injury to the public or other employees. Similarly, if you knowingly employ someone who is impaired, and that results in an accident, as an employer you have tremendous exposure for the actions of your employee. Specifically for the marijuana businesses, I see the potential for the equivalent of dram shop liability. Similarly, I believe we’ll see products liability litigation (and corresponding affirmative defenses) for misuse of marijuana either by the initial purchaser or by a third party who receives the marijuana.

JM: The implementation of California’s new Medical Marijuana Regulatory Safety Act (MMRSA) will be fascinating and a huge challenge. That is the state’s new—and first—set of statewide laws to regulate the medical marijuana industry. Another part of this implementation is how each and every local jurisdiction in California will react to these laws. I hope that more jurisdictions will embrace these new laws and permit and regulate medical cannabis activity at the local level.

NG: How is the regulatory/legal environment affecting marijuana law and the business of marijuana? 

AG: You cannot underestimate the banking/financing difficulties for a legal marijuana business. Further, the ultimate potential liability for a licensed marijuana business in the event of injury or illness resulting from the use of a legal product is vastly unknown. I think this risk is particularly true with respect to edible products and children. Ultimately, there will be litigation (likely criminal and civil) when a child ingests legal marijuana.

JM: The new regulations and the reactions of local governments to California’s MMRSA is a sea change that will forever alter my practice and the operations of my clients. So, I expect to have my hands full. Local regulation was already affecting my practice. I have spent much of my time since early 2014 helping clients apply for and receive conditional use permits from the City of San Diego to operate licensed storefront dispensaries. Fortunately, I enjoy helping clients figure out and comply with regulations.

NG: What do you find most rewarding about your practice? 

AG: Throughout my practice, I am privileged to participate in the success and challenges of my clients’ businesses. As this area of law evolves, there will continue to be implications throughout all businesses. I want to be able to provide my clients with the tools to navigate through the unknown path where legislation, law enforcement and judicial determination is lagging far behind societal acceptance.

JM: The constant change. I will never stop learning and no day is the same. Admittedly, that can lead to a lot of long days and nights, but I wouldn’t have it any other way. Last year, I finally fulfilled a goal I set for myself back when I started practicing medical marijuana law in 2010, which is that I would get a permit for a client from a local government to operate a dispensary. I didn’t know it would take five years to achieve that goal—but it was worth it. Now, it’s on to state permitting and persuading local governments to regulate medical marijuana activity.

– See more at: http://www.lawpracticetoday.org/article/new-practice-areas-flying-high/

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