Maryland\u27s Medical Marijuana Law: Transactional and Ethical Perspectives for Real Estate Practitioners

The congruence between Federal and state laws relating to marijuana, 2 which has existed for generations, is unraveling. In recent years a number of states have reduced or eliminated criminal penalties for the possession or use of small amounts of marijuana;3 twentythree states have established a state law exception for medical marijuana; 4 and Colorado, Washington, Alaska and Oregon now authorize the retail and personal growth, sale and possession of marijuana as a matter of state law.5 Maryland has lately joined the list of states purporting to create exceptions or safe harbors for those wishing to engage in the manufacture, distribution and use of so-called “medical marijuana.”6 Yet Congress’s operative expression of the federal legislative intent on this topic remains as it was first embodied in the Controlled Substances Act (“CSA”),7 which was originally enacted as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.8 This divergence in approach has created fissures in the legal landscape which pose serious traps for unwary Maryland real property owners, landlords and tenants who would engage in medical marijuana- related activities, as well as for the attorneys who are called upon to advise them. This article will examine some of those transactional and ethical issues