How Sausage Gets Made in Oregon: Talking to Attorney Leland Berger
By Art Cosgrove
Oregon Cannabis Connection
The National Organization for Marijuana Legalization (NORML) has been a household name-type of outfit for decades. The group was the de facto respectable face of the marijuana legalization movement for a long time, but then the whole movement sort of became respectable due to society’s changing mores. Now with marijuana medically legal in more states than it’s not, and an increasing number of states looking favorably on recreational legalization, as well, you might be wondering what the legal eagles at NORML are working on.
We spoke with Leland Berger, head of the Oregon CannaBusiness Compliance Counsel, who is also an attorney on the Portland NORML Legislative Committee. We asked him what the focus was now, in states where legalization has already prevailed—like Oregon, Washington and Colorado.
“This session [ 2017 Oregon Legislative], we were able to get two bills introduced: Senate Bill 301, where we’re working with Beth Creighton of Creighton & Rose,” says Berger. Creighton is one of the co-chairs of the Oregon Trial Lawyers Association (OTLA) employment section and has been representing employees for over 20 years. “She came up with this idea about how currently the law already makes it an unlawful business practice to fire or refuse to hire someone for off-site tobacco use. So why not extend that to off-site state legal cannabis use?”
The idea gained support from Senator Floyd Prozanski (D), who represents South Lane and North Douglas counties, and soon SB301 was on the table for debate. The effects of this bill cannot be understated: Aside from the fact that it would extend the basic protections cigarette smokers already enjoy, it could potentially be the first salvo in the battle against pre-employment drug testing. Berger remains vague on this point, as the bill is up for a legislative work session on April 18, and there’s a long way to go. But he’s clear, “The goal of 301 is to address employment and pre-employment discrimination.”
Berger calls the bill a culmination of 34 years of not having an answer for people struggling with cannabis and employment. “Over the years I’ve gotten calls from people saying, ‘Hey, I just got turned down for a job or I just got fired and it was for a dirty urine test.’” he says. He was tired of not having an answer for them.
Representing employees in this way is part of why he’s a lawyer. “I’ve always represented protesters, from anti-apartheid protesters in the early eighties, to the Occupy protesters in the last couple of years. I do that primarily through the National Lawyer’s Guild,“ says Berger of his history aiding agitators. “Its philosophy is that human rights are more important than property rights.”
Berger and Creighton are still meeting with opponents regarding SB 301, and are hopeful some version of it will pass.
Another front for the Legislative committee is the classification of vape pens as harmful aerosols. The Oregon Indoor Clean Air Act (ICAA), or Smoke-Free Workplace Law, prevents smoking inside, or within 10 feet of the doorway of, any workplace. Effective January 1, 2016, this was extended to include vaporizers (e-cigarettes) or any of what they call “inhalant delivery systems.”
“Law Enforcement took the position that they couldn’t enforce the new prohibition on public use (on tobacco vaporization products) unless cannabis was also added, because they wouldn’t be able to know if it was tobacco or cannabis,” says Berger.
This new prohibition instantly made the burgeoning cannabis club circuit illegal. Places like the World Famous Cannabis Café in Portland, where customers could come and enjoy their vape pens indoors and their combustibles on the patio, went out of business. It also caused several high profile events, such as ones organized by High Times magazine, to be cancelled or relocated.
Berger and his team asked Sen. Prozanski to get involved once again, as well as meeting with the Oregon Health Authority (OHA) and Oregon Liquor Control Commission (OLCC) about the idea of getting licensure for indoor use of “inhalant delivery systems” for events. Berger says the OLCC was receptive, saying they wouldn’t have a problem issuing licenses for lounges and special events, in principle.
“And just like there are beer gardens at events, there could be weed gardens,” says Berger.
The bill pushed by Berger (SB 788) included an opt-out clause, which would allow counties to vote to not allow the licensure in their borders. Meanwhile SB 307 was also brought to the floor, which is an identical bill—only it requires the counties that do want the licensure in their borders to opt in and vote to allow it, not the other way around.
Berger elaborates on the current status of SB 307, “At this point, though, I’m still speaking with Senator Ferrioli about the local control issue, and perhaps allowing 307 to grandfather in the counties that have already opted out, and on the whole social consumption thing.…”
Also of concern to Berger and the Legislative committee is the future of federal enforcement. New Attorney General Jeff Session’s recent cryptic and chilling statements regarding his desire to sic the Feds on state-legal medical and recreational outfits has caused an obvious stir in the cannabis community. When asked about what he thinks the future holds for federal enforcement, Berger is noncommittal but optimistic. He reads from his own quote on the matter, “By executive order, from Sessions’ testimony in Congress, and by his statements to the National Association of Attorneys General, it seems that the focus on enforcement of the Controlled Substances Act will be on transnational cartels operating in legalized states, and not on those who are working within the regulated framework.”
In other words, they won’t be interested in dispensaries and regulated grow operations. That is not exactly the firm affirmation of a future for those with their livelihoods staked to cannabis sales would hope for, but it’s the best we have right now.
Berger stresses that things are constantly in flux with these bills, and by the end of the month, a lot will have changed. There are developments that have occurred even within days of speaking with us.
“In the interim, I can tell you that both 307 and 301 had workgroups where proponents of the law met with opponents,” says Berger, “because that’s how things happen at the legislature.”
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