Evicting a Commercial Tenant: Medical Marijuana Dispensaries

The Drug Enforcement Agency (DEA) has informed landlords of medical marijuana dispensaries that the sale of medicinal marijuana is illegal under federal marijuana laws. This means that the DEA has asserted its right to confiscate the landlord’s property per civil forfeiture laws.

How Does the Federal Government View Medical Marijuana?

Both possession and distribution of marijuana are illegal under the federal laws that govern marijuana, specifically the Controlled Substances Act. Under federal laws, it is illegal to possess, use, grow, and sell marijuana.

No exception is made for medical or recreational use of marijuana under federal laws. The possession of even a small amount of the drug is a federal criminal offense.

For example, simple possession of marijuana with no intent to distribute is classified as a misdemeanor and is punishable by up to one year in prison and criminal fines of up to $1,000. In general, however, federal law enforcement authorities will not prosecute medical or recreational use as long as an individual adheres to the state’s laws and does not sell it across state lines.

It is important to be aware that the federal government’s stance on possession and use of marijuana may change, especially when a new president is elected. For example, during President Obama’s second term, the Department of Justice released a memo stating that the federal government would not interfere with states in which laws had been passed to legalize marijuana to be used for whatever purpose, including medical or other purposes.

In contrast, during the Trump administration, the federal government indicated that it would pursue individuals who violated the federal laws governing marijuana. So long as laws governing marijuana are on the books, there is a possibility that the government may choose to enforce them.

How Do the States View Medical Marijuana?

Nearly every state and certain municipalities have passed laws that legalize the medical or recreational use of marijuana in recent years. In certain states, even growing and distributing marijuana is now legal.

It is important to note, however, that if there is ever a conflict between a federal and state law, the federal law will always prevail. The medicinal use of marijuana is legal in nearly every state in the United States today.

However, marijuana CBD oil and cannabis oil are all still illegal in the State of Nebraska. Colorado seems to have the most lenient state laws regarding marijuana.

In the State of Colorado, an individual can possess and use marijuana for both medical and recreational purposes. It is also legal to transport up to two ounces of marijuana and have as many as six plants growing in an individual’s garden for their own use.

If the individual is a commercially licensed grower, they can have even more plants.

How Has the Government Fought Against Medical Marijuana Dispensaries?

One of the main opponents to medical marijuana dispensaries is the federal government. The government can trump state laws and, in some cases, has threatened patients as well as physicians with criminal prosecution and has closed or obstructed dispensaries in states that have medical marijuana legislation in place.

The main issue that the federal government has with marijuana is the national policy of zero tolerance of illicit drugs, including prohibiting legalizing marijuana for medical purposes. Marijuana is still an illegal drug that has not been proven in terms of safety or effectiveness.

In addition, there is an argument that marijuana serves as a gateway drug, which leads an individual to use more serious drugs. There is also a concern that the legalization of marijuana for medical purposes will send the wrong message to the public, especially children, that marijuana is acceptable, and even beneficial, for recreational use.
How Does This Affect Physicians and Patients in the States?

As of 2023, 38 states permit some form of medical marijuana use. One of the main issues with this conflict of laws is whether the federal ban on medical marijuana use violates the physician-patient relationship.

Patients expect full disclosure from their physicians and the right to learn about all available treatments. If a physician knows of a therapy they can access that relieves pain and suffering, especially with terminal disease, it may violate the physician’s duties.

Physicians may find themselves in a difficult position, choosing between providing patient care and avoiding prosecution from the federal government.

Can a Medical Marijuana Dispensary Be Evicted Under State Law?

The question of whether medical marijuana dispensaries can be evicted under state law simply based on a DEA letter is a difficult one. A dispensary is a commercial tenant and not a private resident.

When parties enter a business agreement between merchants, the law assumes that both parties are sophisticated and should know about the contracts they sign. This means that if there is no provision in the lease regarding illegal activity, a landlord may not have a clear reason to evict.

Evictions are state proceedings. For example, under California law, medical marijuana dispensaries are legal; however, they are not under federal law.

In these cases, California courts would likely authorize evictions because a raid conducted by the DEA could have profound negative effects on the landlord’s property. In 2007, for example, the DEA closed an Oakland pot club, confiscated the landlord’s property that was worth almost $400,000, and the landlord was sent to federal prison.

On the other hand, a California court may not wish to undermine the authority of state law that allows medical marijuana dispensaries. Despite letters from the DEA, no landlord who keeps a low profile has had their property forfeited.

The court may consider whether or not the DEA has the resources to complete the case. The DEA has only charged individuals with direct involvement in the cultivation and sale of marijuana and those who made large profits.

In that case, the landlord was aware of the illegal activity and even controlled and directed it at certain times.

What Can a Landlord Do?

The best defense for a landlord to a DEA civil asset forfeiture is to evict the offending commercial tenant. However, in many cities and states, the landlord must have just cause to evict the tenant.

Breach of contract is often the reason provided if a landlord is afraid of DEA action. However, a breach of a lease will depend on the specific language contained in the lease.

For example, a contract in California that requires a tenant to operate a business for lawful purposes will not result in the operation of a medical marijuana dispensary being in breach of the contract. This is because a California court would find that the medical marijuana dispensary is lawful under state law, which would be enough to comply with the contract, even though such a dispensary would be illegal under federal laws.

In contrast, if the contract requires the tenant to follow all applicable laws, it would be subject to federal laws prohibiting the sale of marijuana for any reason. A contract containing this phrase would allow a landlord to evict a tenant who was selling medical marijuana.

Do I Need a Lawyer?

If you have any issues, questions, or concerns regarding commercial tenancy and a medical marijuana dispensary, it is important to consult with a real estate lawyer. As discussed above, these laws vary greatly by state and are always trumped by federal laws, which can be enforced at any time.

If you are a tenant, your lawyer can review your lease contract and ensure it is valid and that your rights are protected under the law. If you are the landlord, your attorney can perform the same services and advise if you need to evict a tenant to avoid federal law issues.