- Vinnie Neuberg
Cannabis Lawyer – I read that an Oregon court ruled last week that the smell of marijuana is not legally offensive. Is it true?Yes, sort of. Like many recent court cases involving marijuana, last week’s Oregon Court of Appeals decision got people talking. The question presented was whether the smell of marijuana smoke wafting from an apartment window is a “hazardous or physically offensive condition” under a certain criminal statute, ORS 166.025. That statute covers disorderly conduct in the second degree. If you are confused as to how smoking pot in your apartment might constitute disorderly conduct in the second degree, read on.
The State of Oregon argued that the unwanted presence of marijuana smoke creates a physically offensive condition because it is “offensive to the sensory organs of the body—the nose.” The state thus maintained that the “odor of burned marijuana is unpleasant to those who smell it” and “synonymous with the dictionary example of what is ‘offensive’ (the ‘odor of garbage’).” And so on.
The court disagreed that pot has an objectively terrible smell, like garbage. Instead, the court shrewdly observed that “some people undoubtedly find the scent pleasing.” Ultimately, the court decided that, because the police officer’s affidavit in this particular case did not describe the frequency or intensity of the marijuana smoke smells at issue, it could not characterize the smells as an “olfactory assault” that was “hazardous or physically offensive.” Thus, a pot-smoking man in a Philomath triplex was spared.
This ruling does not mean that marijuana odors in Oregon cannot be “legally offensive.” They can. I have represented grower clients in civil “nuisance” complaints brought by downwind persons who dislike the smell of cannabis, and I expect I will do so again. Anyone in an urban area growing pot without scrubbers, odor neutralizers, air purifiers, or exhaust fans may risk a nuisance complaint, regardless of whether that person or business has a grow card or state-issued license. Similarly, someone lighting up on an apartment balcony each evening may risk a nuisance complaint from a put upon neighbor above.
We get away with more in Portland, where the city has not seemed especially interested in regulating pot smells to date. That is not the case statewide. The City of Pendleton, for example, home to the Round Up and all of its associated smells, recently amended its nuisance ordinance to include marijuana. In Pendleton, a casual marijuana user can be lassoed with a $500 fine for smoke smells drifting across her property line. It has probably already happened.
Despite what the court said last week, marijuana odors are not now less “legally offensive” than cigarette smoke or pulp and paper mill smells. This interesting case just warns police officers to buff up their affidavits with descriptions of “intensity” and “frequency” of marijuana smells so that magistrates may safely issue search warrants. Citizens of the empire still need to be mindful of the immediate external effects associated with cultivating and using marijuana. More so in Pendleton than Portland.
Vince Sliwoski is a business, cannabis, and entertainment attorney with Harris Moure. He works with Oregon marijuana businesses of all sizes on licensing, corporate formation, contracts, commercial litigation, and intellectual property. He is a contributing writer to the Canna Law Blog and plans to answer questions here regularly. Send yours to firstname.lastname@example.org.