By: Kevin J. Jacoby With the new year upon us, Oregon’s cannabis industry is now beginning to think about 4/20 events, and the perennial question that has plagued the industry since recreational use became legalized is once again pressing: is there any circumstance where cannabis consumption is allowed at public or private events? Every year industry insiders wrestle with this question, and every year it seems there are planned events that get up to the day of the event before they are abruptly cancelled. Indeed, Oregon’s cannabis industry has struggled to understand the circumstances under which Oregon law allows the consumption of cannabis at private events, primarily because guidance from the Oregon Liquor and Cannabis Commission has focused on what is not allowed rather than what is allowed. For example, OLCC guidance states simply that marijuana consumption is not allowed in a “public place” and that “public place is defined as a general place where the public has access.”  The only example given of a “general place where the public has access” is any business with a liquor license – but beyond that, OLCC has given no further written guidance to its licensees or the general public. Further complicating matters, when licensees or other industry participants seek guidance from OLCC staff regarding a planned private event where consumption of cannabis is allowed, OLCC staff appear to take an expansive approach to what is considered a “public place.” For example, OLCC staff have stated that they look at whether the event is advertised on social media, apparently taking the position that any public promotion of the event makes the event a “public place,” even if the promotion is for a ticketed or invitation-only event. OLCC staff have also cautioned that any connection between a licensed business and a private event that OLCC staff may later determine was actually public will subject the licensees to sanctions up to and including license revocation for permitting “unlawful activity.” In fact, in 2019 several cannabis licensees were sanctioned for their participation in a cannabis consumption event outside of Eugene called Budfest, which was an outdoor event held on private property, with access restricted to those who became members of a private organization and showed identification proving that they were over 21.

LEGAL FRAMEWORK

ORS 475C.377 provides that “[i]t is unlawful for any person to engage in the use of marijuana items in a public place.” ORS 475C.009(40) defines the term “public place” as follows: “‘Public place’ means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and areas used in connection with public passenger transportation.” Oregon law is clear that consumption of cannabis in a “public place” is unlawful, while consumption of cannabis in private (that is, any area that is not considered a “public place”) is lawful. However, given the “includes, but is not limited to” language, there is a considerable amount of confusion over how to determine whether a given event is a “public place” or not. As is noted above, OLCC staff have explained that their interpretation is so expansive as to include any event that might be promoted on social media. However, it is notable that the definition of “public place” in ORS 475C.009(40) is identical to the definition of “public place” found in Oregon’s Criminal Code of 1971, ORS 161.015(10), and that definition of “public place” has been interpreted by the Oregon Supreme Court to “include places where the public may enter at will.” State v. Brooks, 275 Or 171, 176, 550 P2d 440 (1976). In State v. Brooks, the Oregon Supreme Court held that a theater that advertised itself as a venue for nude dancing, charged a fee for admission, and did not allow entry to persons under the age of 18, was not a “public place” as defined by the Oregon Criminal Code, reversing the defendant dancers’ convictions for public indecency. In other words, because the public was not able to enter the theater at will in that there were several barriers to entry (namely, the payment of an admission fee and prohibition of entry to minors), the theater was not intended by the legislature to be a “public place” for purposes of the public indecency statute. The question remains whether the legislature, in adopting the Oregon Criminal Code’s definition of “public place” into Oregon’s recreational cannabis laws in 2014, the legislature intended the Oregon Supreme Court’s interpretation of the statutory definition of “public place” to exclude those places where the general public generally cannot enter at will to apply. The answer to that question is clearly yes. This is because case law on interpretation of statutes states that the legislature is presumed to know when the Oregon Supreme Court has interpreted a statute, and when the legislature adopts the same language into a different statute, the legislature is presumed to intend the authoritative court interpretation to apply to the new statute.

BOTTOM LINE:

With the above legal framework in mind, it seems clear that OLCC staff’s expansive reading that “public place” would include a private event that is advertised or promoted as invitation-only or which charges an admission fee is legally incorrect. With the guidance of State v. Brooks, it is clear that ORS 475C.377 intended to prohibit consumption of cannabis only in areas where the general public enjoys unfettered access, and does not apply to any event where there is a barrier to entry. In other words, an otherwise private event that restricts entry to those who purchase a ticket, pay a fee, are invited or pre-registered to attend, and is restricted to those who are over the age of 21 does not become a “public place” simply because the event is promoted or otherwise visible to the public, and would not be unlawful under ORS 475C.377.