According to the U.S. Constitution's supremacy clause, the Constitution itself along with federal laws and treaties are the supreme law of the country. This means that our country (and state's) court systems are bound to follow the federal laws over any state laws or statutes that may conflict. This supremacy clause has been in effect for close to 200 years, but has recently been tested again as marijuana legislation and regulation creates growing concern. Unfortunately for southern California property owners, commercial and multifamily properties, their owners and property managers have been caught in the middle as state regulations go up against federal law.
According to the federal Controlled Substances Act, marijuana is classified as a schedule I drug. This makes it illegal to cultivate, distribute or even possess. (The Controlled Substances Act does not recognize medical use as legal and the U.S. Drug Enforcement Agency applies tough drug penalties). The terms of the Constitution's supremacy clause prohibit states from enacting laws that conflict with federal law, but in recent times, some states are doing just that. Medical marijuana is legal in 23 states plus the District of Columbia and recreational use of marijuana has been legalized in Alaska, Colorado, Washington and Oregon. The result is a confusing legal limbo that has citizens conducting their affairs that are legal according to their state's standards, but illegal according to the federal law still in place.
Currently, the federal government seems to be utilizing what could be described as a "hands-off" policy. They are currently not actively responding to the conflict between state and federal law. Instead they are using a hands-off approach toward states that have adopted laws that legalize certain uses of marijuana. While this seems to be the case, there has been no actual change to the nature of federal law or the criminality of the same actions according to federal law. This creates a difficult situation as there is not guarantee that the federal government is going to continue maintaining their hands-off approach to the issue. This makes it particularly touchy when making decisions about adopting a favorable marijuana use policy until the point at which the federal government decides to actively make a change in federal law.
The state vs. federal law issue comes with a large amount of complication for any southern California property owners and managers who are attempting to navigate the decision making process. In addition to considering the conflict between state and federal law regarding marijuana use, etc. property owners and managers must take into consideration other state regulations regarding: medical rights, privacy rights, disability law, etc. It is a veritable potential landmine for multifamily property owners with concerns encompassing everything from lending disclosures and requirements to housing policies to privacy rights to landlord/tenant disputes.
If you have additional questions or concerns about how to address the conflicting state and federal laws regarding your southern California commercial or residential properties, please get in touch with the real estate attorneys at The Law Office of Retz & Aldover LLP as soon as possible.