Like many recent court cases involving
marijuana, last week’s Oregon
Court of Appeals decisiongot folks talking. Most headlines read something like “Oregon court
rules that the odor of marijuana smoke is not legally offensive.” This is
accurate but incomplete, and sort of misleading. A complete description of the
court’s holding would read something like “Subject to appeal, Oregon court
rules that an affidavit which fails to describe the intensity and persistence
of a marijuana smoke odor, cannot, as a matter of law, satisfy the probable
cause standard required for search warrant issuance.”
Such a headline would be unwieldy, but it is
important to note that this was a criminal case construing a criminal statute.
The law at issue, ORS 166.025, provides that a person who “creates a
hazardous or physically offensive condition” commits the crime of “disorderly
conduct in the second degree.” Though the court’s ruling (if it stands) may
constitute a helpful precedent for civil nuisance complaints, the odor of
marijuana has not been adjudicated as powder fresh. Instead, the court’s ruling
seems to imply that if a smell were intense and persistent, it could be
“physically offensive” enough for a magistrate to issue a search warrant under
the statute.
Although this case did not concern “nuisance”
in the civil context, the court reviewed the legislative history of the
criminal statute at issue and helpfully observed that it appears “designed to
reach activity that constitutes a public nuisance” (emphasis added). In civil law a “public nuisance” is an
unreasonable interference with a right common to the general public. “Private
nuisance,” on the other hand, is an unreasonable invasion of a person’s
interest in using and enjoying their land. A nuisance may be public or private
or both.
Regardless and in every case, nuisance
describes the intentional, negligent or reckless invasion of a common right or
private property interest (i.e., by marijuana smoke), but not the invasive acts
creating the nuisance (i.e., smoking marijuana). This means that a nuisance
complaint cannot be brought against someone for cannabis-related activities on
her own property, if those activities do not cause harmful effects over property
lines. A plaintiff must also plead and prove that the nuisance is substantial
and unreasonable to prevail.
So, could the smell of marijuana smoke or
plants be considered substantial enough, and unreasonable enough, for a
plaintiff to prevail in a civil nuisance case? Most likely, yes. In making this
determination, a court would consider the interests of the parties involved and
weigh the harm suffered by the plaintiff against the utility of the defendant’s
conduct. For example, let’s say a downwind daycare owner brings a private
nuisance complaint against a large marijuana processing operation that creates
a strong, persistent odor from 1,001 feet away. It is very possible that a
court would consider the odor harmful, and the utility of the defendant’s conduct
low. In such a case, the plaintiff might prevail.
Other cases are not so clear. Our cannabis
litigation lawyers have
defended a number of marijuana growers in private nuisance complaints brought
by neighbors. Sometimes these complaints are litigated but other times creative
workarounds are available. For example, one client with a large indoor grow
operation recently decided to retrofit its building with scrubbers after
ongoing complaints by neighboring businesses. This solution was reached after
we met with the local fire department, a city office, neighbors and the
client’s landlord. Ultimately, the landlord even agreed to foot a large part of
our client’s costs so as to keep our client in the building, despite lease
terms that put odor control obligations squarely on our client.
Fortunately for that client, no local ordinance
expressly declared marijuana a nuisance and its neighbors had less leverage
than they would have liked. In other cities, that would not have been the case.
The City of Pendleton, Oregon, for example, home to the World Famous Pendleton Round Up and all of its associated smells,
recently declared
marijuana odor a nuisance. Accordingly, a city ordinance now expressly prohibits marijuana odors
from leaving a person’s property. (Pendleton is the county seat Umatilla
County, which has opted
out of commercial marijuana activity entirely). In Pendleton, even a casual
marijuana user could be liable on a nuisance theory for smoke smells drifting
across to a neighboring residence.
Marijuana users and businesses need to be
mindful of the immediate external effects associated with using and handling
marijuana, along with any local rules. Despite the recent Oregon Court of
Appeals decision, there are no hard and fast rules on when and whether
marijuana smoke may constitute a nuisance, and when it’s just a thing. Smart
business practices—including choice of location—will minimize exposure to these
types of claims.
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