Forget About the Courts, What About My Personal Cannabis Rights?

If you wish to re-publish this story please do so with following accreditation
AUTHOR: Heather Allman

Although cannabis remains federally illegal, as a medical or recreational user of cannabis, you still have rights when it comes to your personal healthcare, law enforcement encounters, your employment, your housing, transportation, and your individual privacy.


Knowing Your Rights, provided by the national medical cannabis advocacy organization Americans for Safe Access, admonishes current cannabis consumers:

Medical cannabis patients and their providers are vulnerable to federal and state raids, arrest, prosecution, and incarceration. As a result, these individuals may suffer pervasive discrimination inemployment, child custody, housing, public accommodation, education and medical care. Laws protecting patients and their providers vary from state to state and, in some cases, may vary from county to county. Many individuals choose to break outdated state laws that do not account for medical use or their access.

Doctors may not ‘prescribe’ cannabis for medical use, though they can ‘recommend’ or ‘approve’ its use under the First Amendment. This recommendation or approval does not provide patients with any sort of legal protection under federal law, but it may be the basis for legal protection under state law. Under federal law, you and your doctor are free to discuss the possible benefits and side effects of medical cannabis.”

What is a recommendation, or ‘order,’ why is it called a recommendation rather than a traditional prescription, and what is the difference?

While some medical marijuana patients will claim they have a doctor’s prescription for medical marijuana, marijuana prescriptions are in fact illegal. The federal government classifies marijuana as a Schedule I drug with no acceptable medicinal value.

Therefore, doctors are unable to prescribe marijuana to their patients, and medical marijuana patients cannot go to a pharmacy to fill a prescription for medical marijuana.

Instead, medical marijuana physicians will provide patients with a medical marijuana recommendation or “order,” in strict compliance with Florida state law.

Florida is currently entertaining its own successful 2020 push for adult recreational legalization and medical expansion or overhaul.

But the facts in Eric Gandelione’s revelatory article for Cannabis Business Executive, Building With, Not From, Medical Markets, speak for themselves:

We interrupt your normal feed of CBD-related content to discuss the future of adult-use cannabis states. Notably, with Illinois’s cannabis legalization signed into law and the market set to open in early 2020, it’s a good time to take stock how consumer behavior will shift in that market, as well as other medical markets that may transition to adult-use in the near term, including New York, New Jersey, Florida, Arizona, Ohio and New Mexico. It’s also a good time to review why medical users must remain a focus for cannabis companies.

In the spring of 2018, we set to find out how self-defined medical users of cannabis had changed their behaviors once the states they were living in legalized adult-use cannabis for our Medical Cannabis Consumer report. In order to take a consumer-centric view, we simply asked respondents if they use cannabis primarily for recreational or medical purposes. The latter formed the ‘medical user’ group.

These medical users reported shifts in their usage of cannabis and other products post adult-use legalization in their home states. Our findings match many of the sales data reported by various outlets, showing medical cannabis sales shrink after adult-use legalization, while recreational or adult-use sales drive the market:

  • Over a quarter of medical users reported that they were using more often than before adult-use legalization
  • Edibles and topicals emerged as the two categories users indicated that were consuming more of post-legalization
  • Half of medical users were still using their medical card for cannabis purchases, meaning half were no longer using their card
  • Usage of over-the-counter pain relievers and sleep aids, as well as prescription pain relievers and anti-anxiety medications dropped”

For more detailed findings from this report, access the corresponding downloadable whitepaper here.

Any decrease in pharmaceutical use and abuse in Florida’s diverse population is progress toward a healthier future and hope.

Florida’s physicians would agree that in order to keep medical marijuana’s forward momentum a crystal clear playbook is desperately required, or at least some standardized rules of engagement.


Since the passage of the nation’s first marijuana legalization measures in Colorado and Washington, a lot of inquiries have arisen about how these changes in marijuana policy might impact basic rights during police encounters.

Richard Stim, Attorney, provides the handy cannabis consumer guide to Your Rights When Dealing With the Police, answering the vital question of “Should you speak with the police officer? Should you let the officer search your home or car? And what happens if you don’t?”

Current cannabis consumers may want to watch the short: What Are My Rights When Marijuana is Legal?

Additional resource Cannabis: The Facts, Human Rights, and the Law offers the following comprehensive cannabis manifesto:

Where cannabis is concerned, denial of cannabis by Prohibition ‘law’ premeditatedly inflicts suffering, blindness, and, in many instances, death. Those who maintain any use of life-saving cannabis to be ‘illegal’ should be regarded and treated as perpetrators of the gravest of crimes, and deemed unfit to hold any public office in a democratic society.

  1. is, in its entirety, without factual foundation;
  2. is based on mendacity;
  3. is itself illegal on numerous grounds by Common, Substantive and International Law;
  4. is perjurious in prosecution; perjury by the state is both implicit and overt in every cannabis trial.
  5. The acts of its enforcement are crime per se; people persecuted thereby qualify for Amnesty and Restitution (as for other Wrongful Penalisation);
  6. The ignoring of these aforegoing Findings of Fact by courts and legislature is ex parte, the crude and criminal denial of Justice.
  7. In its replacement of the use of drugs alcohol, tobacco, etc., by young people and adults, cannabis promotes health. All private cultivation, trade, possession and uses are vindicated.
  8. In regard to cannabis, legislation of substance control is damaging both to individual and to society; all special regulatory control of cannabis produces negative, damaging and/or lethal results, and is per se unlawful.
  9. Cannabis related prosecutions are legally malicious, i.e. premeditated crime against the person.
  10. Cannabis Relegalisation is legally mandatory, that is: legislative amendment for the return to the normal status of cannabis which obtained before the introduction of any controls.”

And speaking about control, or lack thereof, at cannabis shops nationwide, Face Recognition Is Already a Thing. Dispensaries are adopting in-store surveillance systems to protect profits. Experts warn it’s a ‘slippery slope’ to discrimination, as reported by Mason Marks on August 2, 2019:

Imagine you are a medical marijuana patient driving to a cannabis dispensary. As you pull into the parking lot, surveillance cameras record your license plate number. You step out of the car, and walk toward the entrance.

A sign above the door reads ‘please look up for entry.’ You crane your neck and gaze into a camera paired with artificial intelligence that analyzes your face. A red light suddenly turns green, and the door slides open. You enter the store and bypass a line of customers waiting at the register, opting instead for a self-service kiosk.

As you approach the machine, in-store cameras feed images to algorithms that analyze your appearance to determine if you might be carrying a weapon, and compare your face to millions of photos in a law enforcement database. When you finally reach the kiosk, it scans your face, identifies you as a returning customer, and greets you with a coupon for your favorite cannabis product.

This may sound like a scene from a sci-fi movie, but these tools are employed in cannabis dispensaries today. The cannabis industry is embracing new technologies like facial recognition and advanced video analytics throughout the supply chain—from grow rooms and processing facilities to distribution centers and retail dispensaries. The companies behind the technology say it benefits cannabis businesses, employees, and consumers.

But in an industry marred by decades of mass-incarceration that has discriminated against communities of color, face surveillance poses serious privacy risks, and can easily be used for targeted harassment.

‘It is hard, if not impossible, to find an example of a surveillance technology that has not been turned against groups that are already vulnerable in our structurally inequitable system,’ said Shankar Narayan, Director of the Technology and Liberty Project at the ACLU of Washington, in an interview with Motherboard.

Although legal for medical or recreational use in 33 states, cannabis remains illegal under federal law. Because it occupies a legal grey area, banks are hesitant to touch the industry, making it primarily an all-cash business and an attractive target for thieves. In Denver, Colorado, alone, there were 34 reported dispensary robberies in the first half of 2019.”


There’s also the overwhelming cannabis conundrum: what are workers’ rights? Kathleen Greer handily addressed this issue on August 9, 2019: “The legalization of cannabis across the country presents uncharted territory for many companies. HR departments are tasked with meeting the challenges associated with new laws related to random drug and pre-employment testing.”

Marijuana use is on the rise among US workers as more states legalize the drug was Jeremy Berke’s April 11, 2019 headline.

On September 20, 2019, Dave Elias tackled how Employees Could Still Be Fired for Using Medical Marijuana:
A warning to people with medical marijuana cards: your employer could legally fire you if they find out you’re using the drug, even if you have a doctor’s permission and despite the fact that it’s written into state law. That’s because nationally, it’s ranked up there with heroin and the feds say it has no medical use, although many doctors disagree; however, many people who have a medical marijuana card say they’re shocked to hear this.”
In addition, on May 20, 2019, Kevin Murphy presents concrete examples of ways in which employment reflects the state’s current medical cannabis in Cannabis Is Becoming A Huge Job Creator:

The cannabis industry added more than 64,000 jobs last year — a 44% increase — according to a study by Leafly: ‘Discussions about job growth in the U.S. tend to focus on industries such as technology and health care. But the biggest boom may be happening in cannabis. Even though cannabis use in some form is legal in only two-thirds of the states, our burgeoning industry is among the fastest-growing job markets in America.’”

According to cannabis information hub Leafly’s 2019 Cannabis Jobs Count, “cannabis directly employs more than 211,000 full-time workers in the U.S. Add indirect jobs and the total number of full-time workers dependent on the legal cannabis industry hits nearly 300,000. No wonder Leafly calls cannabis ‘America’s hidden job boom.’”

Kelly Meyer revealed the exciting September 11, 2019 development that a Florida congressman looking to prevent feds from being fired for medical marijuana.


Flashback to October 2017 and Lisa Rough’s Can You Get Evicted for Legally Using Cannabis? in which she adeptly tackles the pressing cannabis consumer question:

Where can you legally smoke cannabis? Most often, the answer is within a private residence where you’re out of view of the general public. But what if you’re a renter of your ‘private residence?’ This creates a confusing dilemma for those who are trying to abide by the regulations of the state but don’t want to risk eviction from their residence.

If you rent your home or apartment and are wondering if you can legally smoke in it, the answer isn’t simple or straightforward. When it comes down to landlord-tenant rights, obligations, and insurance policies, it’s less about your landlord’s feelings on the topic and a lot more about the legal contract you sign when you move into a new rental.

Leafly reached out to Rabin Nabizadeh, a criminal defense attorney with Summit Defense based out of California, to get the full legal scoop on the particular ins, outs, and legal rights pertaining to the complex nature of consuming cannabis while renting or leasing a property.

Lease Agreements and Binding Legal Contracts

‘To begin,’ Nabizadeh explained, ‘there is a fundamental legal principle at play here that will shed some light on these issues: Contracts can and often do prohibit legal acts. A violation would not be criminal, but will be a breach of contract and will lead to remedies in civil court.’

There are certain circumstances under which courts may not enforce contractual terms: If the terms are illegal (using racially biased terms, etc.); if the terms are unintelligible or vague; or if the terms are unconscionable. 

‘Many leases will prohibit smoking in general, and that will likely encompass marijuana smoke. The focus isn’t criminal statutes, or even landlord-tenant law,’ Nabizadeh continued. ‘The lease is the controlling legal document. Many leases will prohibit smoking in general, and that will likely encompass marijuana smoke. It is unclear whether that would include other types of use such as vaping.’

What About Medical Marijuana?

Nabizadeh clarified the legal perspective on medical marijuana. ‘Judges generally don’t view medical marijuana as valid, despite the clear legislative intent. Still, there is a question of whether contractual terms barring use of marijuana despite medical need is considered unconscionable,’ he pondered.

Therefore, a patient with a written recommendation based on state law and a legitimate medical need may be able to make a case in court that the risk posed by cannabis use is so minute that it would be unconscionable to deny use for medical treatment, especially for severe qualifying conditions.

If a resident has a disability as defined by the Fair Housing Act, particularly one that is considered a qualifying condition in a medical marijuana state, they could try to make the claim that the use or cultivation of cannabis in their residence should  be considered a ‘reasonable accommodation.’ 

However, since the Fair Housing Act is a federal law and cannabis is still illegal under the federal government, without an official prescription from a physician (which doctors are currently prohibited from doing; instead, they authorize ‘recommendations’), housing providers would be under no obligation to allow it.”

Here’s the US Fair Housing Act that explains what rights you may have as a cannabis consumer paying rent, leasing a personal dwelling, or receiving housing help from the United States Department of Housing and Urban Affairs.


On July 10, 2019, Susan Preston and T.J. Frost tackled how Transporting Cannabis Can Be a Costly Business Risk:

Cannabis operations that use personal vehicles to transport product can create a significant liability. Learn how applying driver safety programs, background checks and the right insurance coverage can reduce your risk.

Did you know that the use of personal vehicles for transporting cannabis products is one of the most frequent claims in the cannabis industry? It surpasses property, product liability and even theft. Businesses are either unaware of the risks involved in using personal vehicles for transporting cannabis, or they aren’t taking them seriously enough.

Considering the strict statutes many states have placed on transporting cannabis should be reason alone to be more diligent.”

New USDA Rules Will Prioritize THC Testing and Transport of Hemp Products, as reported by Ella Hughes on September 16, 2019:
The 2018 Farm Bill in December made it possible for hemp to be legally cultivated and sold, but the terms of those sales have yet to be regulated by the FDA. As the industry waits for these regulations to be implemented, there are growers and entrepreneurs alike that want to see rules implemented that will promote more industry growth. According to reports, the US Department of Agriculture has already finished the work on the hemp rules, but the White House needs to sign off before the rules are made public.
Hemp Industry Daily recently spoke with various advocates and hemp business owners to learn what they hope that the USDA will include in their regulations.”

Honestly, responsible cannabis consumers need to know only one vitally important thing: Where Can I Smoke Legally in a Legal State?

Additional resources for medical cannabis patients can be found at the sites highlighted below:

Top 200 Cannabis Lawyers

Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Elvin Rodríguez Fabilena


Julie Godard
Carl L Rowley -Thompson Coburn LLP

Jerry Chesler – Chesler Consulting

Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

William Bogot – Fox Rothschild

Valerio Romano, Attorney – VGR Law Firm, PC

Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild