Monday, March 10, 2014
PORTLAND — The couple moved into the West End condo in 2011. It was their first home. It was the home they brought their newborn home to from the hospital last summer. It was perfect.
Only months later, they are debating whether to put their condo on the market, driven to the possibility of giving up their dream home by a downstairs neighbor who is using the building's shared basement to grow medical marijuana. The grow operation is legal under state law, but it has contributed to an inhospitable living environment, the couple says.
The couple's situation is the latest unintended consequence of Maine's still-evolving medical marijuana law. A Scarborough business owner earlier this year complained about a neighboring office tenant who was growing legally. A Fairfield woman who reapplied for a job with her former employer was not rehired after she disclosed that she was a medical marijuana user. The state's housing authority last fall banned medical marijuana use in Section 8 housing but then lifted the ban to study the issue further. A Falmouth doctor has offered discounts to college students for medical marijuana evaluations, but the state has no legal ability to stop him.
The problems are the result of decreased regulation and oversight by state officials, ambiguity about who has oversight authority and a hands-off approach by local law enforcement officers who must respect the privacy of medical marijuana growers and users.
The Portland couple say the skunky smell of marijuana lingers day and night. But by law, there is nothing they can do to stop it.
"Every state office we have turned to has referred us to someone else," said the woman, who agreed to talk only if her name and address were not used, out of concern for her family's safety. "No one seems to be able to deal with it. No one seems to have any answers. We have mostly been told that it is our problem to solve."
Instead of proposing legislation to address some of the loopholes that have emerged from a law that has little regulation, state lawmakers are focused on expanding the medical marijuana law.
One bill submitted this session would remove any restrictions on the permissible conditions under which a patient could be certified for medical marijuana. Another would decriminalize marijuana altogether, so that it could be taxed and regulated.
But according to the state's own licensing authority, the current system isn't regulated.
"In an effort to ensure privacy and confidentiality for patients and caregivers, (lawmakers) have eliminated the ability for the state to intervene in cultivation complaints," said Kenneth Albert, director of licensing for Maine's Department of Health and Human Services, the state agency that oversees medical marijuana. "We may need to propose some legislation to enhance our ability to regulate this."
Portland City Councilor David Marshall, a member of the Green Independent Party and a supporter of legalizing medical marijuana, said the West End couple's situation is unfortunate.
"It's really a civil matter and, honestly, I think they have a good case," Marshall said. "But there is nothing criminal taking place. And municipalities by law have no control over medical marijuana grow sites."
Maine first passed a medical marijuana law in 1999 to allow patients with certain debilitating conditions to grow and possess a small amount of medical marijuana for therapeutic use.
The law expanded considerably after a 2009 referendum that allowed certified caregivers to grow marijuana for up to six patients, created a network of approved marijuana dispensaries and expanded the conditions under which a patient could be certified.
Before that law was fully implemented, lawmakers passed another bill in 2011 that eliminated any reporting requirements for medical marijuana patients and doctors who certify patients. The state has no way of knowing how many patients are being prescribed medical marijuana or for what purpose and no way of knowing which doctors are doing the prescribing.
Albert said the state has been good at the administrative aspect of setting up medical marijuana dispensaries and approving caregivers, but has fallen short on the enforcement and compliance side.
Albert said DHHS can only do what the Legislature allows, and lawmakers from both parties have eroded many of the checks and balances within the system.
Some regulations do exist. Earlier this month, DHHS investigated a complaint at a medical marijuana dispensary in Lewiston. The investigation found 20 state rule violations – most notably, the use of pesticides on the plants. The state cited Wellness Connection of Maine for its "security, governance, inventory control and disposal of unused products."
Sen. Margaret Craven, D-Lewiston, said no one was concerned about pesticides when the expanded law was passed in 2009 or when the law was amended again in 2011.
"If we didn't anticipate that, what else might we be missing?" she said.
Dispensaries must be inspected annually per state law, but most of them have not been open that long. The Maine Sunday Telegram requested information about any inspections that have been done so far. That information is still pending. Albert said that there have not been any other complaints made about dispensaries.
But while there is a mechanism for inspecting dispensaries, there is nothing similar for caregivers.
In fact, the 2011 law change eliminated the state's ability to oversee caregivers' growing operations.
That's why the couple in the West End hit a wall everywhere they tried to get help. No one had any authority.
Ambiguity in Maine's medical marijuana law has created other problems, too:
• In January, a Scarborough business owner complained about a neighboring tenant who was using office space to grow medical marijuana. Shawn Swaney said the smell was so strong at times that his employees suffered side effects. Swaney first went to police, but learned there was nothing illegal about the grow operation. He then asked the property manager to intervene and insist that the other tenant install ventilation.
• In February, a lawsuit believed to be the first of its kind in Maine was filed by a Pittsfield woman who claimed that a former employer refused to rehire her once she disclosed that she uses marijuana for medical reasons.
• Last fall, shortly before the college school year began, a Falmouth doctor, Dustin Sulak, placed an advertisement in alternative weekly newspapers that offered a college discount on medical marijuana evaluations. State officials said at the time that offering the discount was not appropriate, but no action was taken.
• Also last fall, the Maine State Housing Authority temporarily banned Section 8 housing clients from growing or using medical marijuana. The authority's board later voted to suspend the ban for six months to gather more information and develop a clearer policy.
Taken together, these examples demonstrate that Maine's medical marijuana law is not crystal clear in many areas.
The situation involving the condo owners in Portland appears to be a new complaint.
Marshall, the city councilor, said in the six years he has been in office, he's never heard a concern that involves growing medical marijuana.
Marshall also said the smell of marijuana is a nuisance but does not pose any health risks, even for children.
"What if he was brewing beer and someone said they didn't like the smell of fermentation? Would that be any different?" Marshall said.
The Portland couple doesn't feel the comparison is comparable.
"What about the right to the quiet enjoyment of my home?" the woman asked. "Clearly, no one had the best interest of the rest of us in mind when the lax laws were passed."
The woman also fears what would happen if she and her husband tried to sell their condo. Would they have to disclose what is going on in the basement?
Linda Gifford, legal counsel for the Maine Association of Realtors, says that question has come up often lately. The answer, she said, is "No."
Under Maine law, Gifford said, "sellers only have to disclose material defects in the physical condition of the property."
Jennifer Defillipp, a Portland-area real estate agent who is also a landlord for several rental properties, said the example in the West End exposes what she called a "slippery slope."
"I'm a landlord and if I don't want a tenant to grow, do I have rights? No one knows," she said. "I think there needs to be some tighter regulations and a better sense of who has the right to regulate."
Defillipp said she even voted for the expansion of Maine's medical marijuana law.
"I don't think anyone was thinking about these things," she said.
The usual response for people who have complaints is to contact police, but police say the loosely regulated system has made their jobs harder.
Portland Police Chief Michael Sauschuck said his officers have been working with the West End couple to address their concerns, but no laws are being broken, so their authority is limited.
Sauschuck said the problems with little regulation are bigger than just landlord-tenant disputes. Often, his officers waste time and resources investigating marijuana growing operations only to find out that they are legal.
"We don't know ahead of time because they are not required to register," he said. "If you're going to have this law, there should be ways to enforce it."
Absent any criminal activity, Gifford said tenants who live near a medical marijuana grower still have valid safety concerns if the location is disclosed.
Diane Goldstein, a retired lieutenant with the Redondo Beach Police Department in California, who represents an advocacy group called Law Enforcement Against Prohibition, said legalization would actually help police officers and improve safety.
"The drug war hasn't worked. Criminalization has not worked," she said. "When Prohibition ended and we created a system to tax and regulate alcohol, things improved. The same momentum exists for marijuana."
The unintended consequences in Maine are exacerbated by two facts: marijuana is still illegal in the eyes of the federal government and there is no state playbook for how to roll out a successful, well-regulated medical marijuana program.
California was the first state to pass a medical marijuana law in 1996. Since then, 19 states have followed. Last November, Colorado and Washington became the first states to legalize marijuana.
Some in Maine want to go down that road as well.
A bill sponsored by Rep. Mark Dion of Portland, a former sheriff, would eliminate any restrictions on physicians who certify medical marijuana patients. Currently, patients are certified only if they meet one of eight specific conditions.
"We don't tell doctors what they can and can't do for any other type of medication. Why should we for medical marijuana?" Dion said when introducing his bill.
Some doctors, such as Brian Pierce of Rockport, stay away from recommending medical marijuana for patients. He said he's not convinced of its benefits.
"The enthusiasm seems to exceed the evidence at this point," he said.
Gordon Smith, director of the Maine Medical Association, a lobbying organization that represents physicians, said the conditions for medical marijuana use are already very liberal.
"We don't want to allow the program to become a front for recreational use," he said.
Another bill, sponsored by Rep. Diane Russell, also of Portland, would eliminate any ambiguity by legalizing use and possession of marijuana for adults 21 and older. It would direct the state to license and regulate marijuana retail stores, cultivation facilities, product manufacturing facilities and testing facilities, and it would enact an excise tax of $50 per ounce on wholesale sales. The bill also would allow the state to begin regulating the cultivation, processing and distribution of industrial hemp.
"By regulating marijuana like alcohol we can take sales out of the underground market, generate millions of dollars in new tax revenue, and allow law enforcement to focus on serious crimes," said David Boyer, Maine political director for the Marijuana Policy Project.
Those two bills have not yet been debated or voted on.
Craven said the Health and Human Services committee could amend any bill that comes before it. If it looks like Dion's bill to expand conditions has momentum, lawmakers could try to write tighter regulations into that bill. If Russell's bill is approved, the same thing could happen, although that law would need voter approval.
Craven said increased enforcement would come at a cost but also said there is a skill in overseeing marijuana growing and distribution.
"I'm not sure we have those skills," she said.
Eric Russell can be contacted at 791-6344 or at: