Construction Law

Florida’s Pot Laws and Broward’s Construction Industry

How Do New Regulations Affect Construction Workers in Fort Lauderdale & Hollywood?

Florida's recent move to approve a more comprehensive public medical marijuana program will have a considerable impact on employers in the 2018. In November 2016, Florida, along with Arkansas, North Dakota, and Montana, voted to join the 25 other states that had previously approved public medical marijuana programs. Florida law provides little guidance for construction companies that are wondering exactly how to handle issues that may arise under the new law. Nevertheless, an examination of laws in other states by our Fort Lauderdale construction lawyers could offer reliable insight.

Medical marijuana and construction jobs

Construction is a generally hazardous occupation. The Occupational Safety and Health Administration Act requires employers to maintain a work environment that is "free from recognized hazards." Therefore any degree of marijuana-induced impairment may compromise workplace safety. Therefore, members of the construction industry are unwilling to compromise safety standards on job sites in response to the legalization of medical marijuana in Florida. Employers avoid potential liability by imposing zero tolerance policies for marijuana possession, use, and impairment. On federal construction projects, the law is extremely clear. Because federal law is always supreme over state law, contractors, subcontractors, suppliers, and laborers who are working on a federal project may not use marijuana, regardless whether local state law permits marijuana use.

Marijuana use in Florida

In 2014, Florida Governor Rick Scott signed SB 1030, also referred to as the Charlotte's Webb bill. The law permitted terminally ill patients as well as those suffering from chronic seizures and/or severe muscle spasms to receive a low-THC strain of cannabis for treatment purposes. Because the law called for a small percentage of patients to be permitted to use a low potency strain, medical marijuana advocates criticized the law, calling it inadequate. A more comprehensive medical marijuana program called Amendment 2 appeared on a ballot; however, the program failed to receive the required 60 percent of votes to pass. In 2016, Amendment 2 reappeared on the ballot with more specific terms, including the definition of "debilitating medical condition." The newer, more detailed version of the proposed law received the support of 70 percent of Florida voters, which was enough for the amendment to pass.

Use at the Workplace

While Florida's new medical marijuana law does not provide much in the way of specific guidelines for construction companies, the language of the law does specify that companies are not required to make accommodations to allow construction workers to use medical marijuana onsite at the workplace. A similar exemption also exists in most states that have approved public medical marijuana programs. However, some states' medical marijuana laws include a clause that prohibits discrimination against workers on the basis of having a medical marijuana card. Because Florida's new law does not include a discrimination clause, local employers may prohibit employees from using marijuana at the workplace.

Medical marijuana and the ADA

Under the Americans with Disabilities Act, Broward County construction companies are required to provide reasonable accommodations to employees who have a disability. Florida's new medical marijuana law may give rise to questions regarding whether an employer must allow employees to use marijuana while at the work site to alleviate a "debilitating medical condition." Currently, employers are not required by the ADA to permit the use of medical marijuana as courts have unanimously held that employers are not required to accommodate the marijuana use, possession, or impairment in construction workers while on the job. The ADA states that people who are currently using an illegal drug are not considered to be "qualified" people with a disability. Therefore, they are not protected by the ADA. Despite being legal for medical use in Florida, marijuana is still illegal under federal law; therefore, it is an illegal drug under ACA.

Drug testing and zero tolerance

In most states, employers who have implemented a zero tolerance drug policy may fire or even refuse to hire employees and prospects who fail a drug test for marijuana even if obtained legally. Current marijuana tests may indicate the presence of cannabis even if weeks have passed since the employee last used the substance. Therefore, an employee's off-duty drug use may lead to job termination. To protect employees who use marijuana for permitted medical uses, some states require employers to provide additional evidence of impairment in addition to a failed drug test. Florida currently does not have an "impairment plus" statute; therefore, construction companies may simply terminate employees based solely on a failed drug test. If Florida adopts an impairment plus policy in the future, employers must then train managers in detecting signs of impairment, taking witness statements, and otherwise taking steps to accurately document cases of marijuana impairment.

Off-the-clock marijuana usage

Fort Lauderdale construction firms may also question whether they will be required to accommodate an employee's medical marijuana use while off duty. While Florida employers are not currently required to accommodate off-duty marijuana use, circumstances may arise in which a court may consider off-duty medical use to be reasonable accommodation. Furthermore, although medical marijuana is not covered under the ADA, an examination of an employee's status as a medical user may reveal the condition for which the worker is being treated. If the underlying condition constitutes a qualifying disability, the employer may be required to discuss reasonable accommodations other than marijuana use with the employee. The Family Medical Leave Act may also be applicable to the employee's circumstances.

As of now, not much has changed for employers in Florida's construction industry regarding making accommodations for medical marijuana. However, employers may be required to engage in the interactive process of discussing alternative reasonable accommodations, apart from medical marijuana use, if an employee's qualifying medical condition is revealed to an employer as a result of his or her participation in the state's medical marijuana program. Always consult with an experienced Hollywood construction attorney for guidance on your unique situation in Fort Lauderdale or Elsewhere in Broward County.

Lease Disputes

How Do Florida’s Pot Laws Affect Leases?

Florida recently became one of more than 20 states to approve its own local medical marijuana program. With the new medical marijuana law coming into effect this year, landlords may be wondering how medical marijuana will affect their interactions with tenants. In this blog, David S. Tupler, a lease lawyer in Fort Lauderdale, addresses some of the most commonly raised questions and concerns raised by his Broward-based clients.

Can tenants grow marijuana for medical use?

Some states permit medical marijuana patients to grow plants for medical use at home. Florida's statute does not permit program participants to grow their own cannabis. Nevertheless, even in states in which people are permitted to grow medical cannabis at home, landlords may prohibit tenants from growing marijuana plants on their rental property by including specific term in the rental agreement. If a property owner has not included a clause in the lease prohibiting marijuana growth on the property and later decides to take issue with the activity, he or she may still bar the tenant from growing marijuana by utilizing an anti-drug or anti-crime policy if he or she specified such a policy in the lease. A landlord who wishes to leverage an anti-drug or crime policy to prohibit a tenant from growing marijuana onsite would be required to first notify the tenant in writing of the lease breach and name the specific violation of the lease terms. If the tenant continues to grow marijuana on the rental property after receiving notification of the lease violation, the landlord may then attempt to evict the tenant. Landlords who do not specify in the rental agreement that tenants are prohibited from legally growing marijuana on the premises may have a much more difficult time prohibiting the activity on their rental properties.

Prohibiting tenants from smoking pot onsite

Some tenants may argue that because Florida now has a medical marijuana program, a landlord may not prohibit tenants from smoking medical marijuana. Despite the passage of the new law in Florida, residential landlords may still prohibit tenants from smoking marijuana on their rental property in the same way in which landlords may prohibit cigar or cigarette smoking. Furthermore, smoking may negatively impact neighbors or other tenants. Therefore, it is within a landlord's general interest to reduce health hazards and annoyances, including marijuana smoke, that may affect those who reside near the property. Similarly, it is also within the landlord's interest to reduce the potential risks smoking poses to the rental property itself. To minimize the potential for unnecessary conflict with tenants, landlords should include a specific anti-smoking clause in the rental agreement prior to allowing the tenant to review and sign the lease. In the absence of an anti-smoking clause, landlords may still attempt to evict tenants who disturb others by smoking marijuana. However, in the absence of a specific clause, the process will likely require the landlord to first notify the tenant of complaints regarding the tenant's smoking then document all future instances of smoking if the tenant refuses to comply with requests to cease.

Commercial landlord lease protections

Some commercial landlords wish to lease property to marijuana-related businesses due to the premium rents these businesses are more inclined to pay. Commercial landlords must remember that although marijuana use may have been approved in some states, marijuana use, sale, plant growth, and distribution all remain illegal under federal law. Therefore, the landlords who knowingly lease property to marijuana businesses are technically aiding illegal enterprises. Moreover, the federal government may opt to enforce federal marijuana laws at any time in any manner set forth in the existing federal statutes. Landlords should also note the common lease protections that may safeguard property owners when renting to other tenants may not offer sufficient coverage when renting property to marijuana-related businesses. However, there are certain protections Florida and Hollywood landlords may wish to consider including in their rental agreements if they wish to lease property to a marijuana business.

Prescription sale in Broward County

Commercial property owners who wish to lease property to a lawful cannabis business in Broward County should include in the rental agreement a very specific use clause that lists marijuana-related activities in which the tenant is permitted to engage on the property. Examples may include details regarding forms in which the business may sell cannabis, number of plants the tenant may cultivate on the property, plant processing details, and methods of storage and transport.

Covenant to comply with all laws

Because marijuana is illegal under federal law, landlords who rent to marijuana businesses should modify boilerplate language that states the tenant must comply with all laws. Modified language may require the tenant to comply with all applicable state and local laws, including medical marijuana program licensing and rules, in addition to Fort Lauderdale zoning ordinances. The rental agreement may call for the tenant to comply with all federal laws to the extent the laws do not interfere with the tenant's right to use the rental property to run a marijuana business. Landlords should not modify or remove remaining boilerplate language that requires the tenant to comply with all federal laws that are not directly related to the growth, storage, or sale of marijuana.

Early termination clause

Leasing a rental property to a marijuana business may expose landlords to potential risks that are not typical of other tenants. Landlords who lease to marijuana businesses my face criminal prosecution, nuisance claims, property seizure, bank foreclosure, or actions by the property's co-owners because marijuana is illegal under federal law. Therefore, a landlord may wish to include an early termination clause that specifically enumerates events that may trigger the landlord's right to immediately terminate the rental agreement.

Property insurance in Hollywood & Ft. Lauderdale

Property insurance policies that cover real estate typically compensate property owners for damage that is caused by illegal activity. However, policies may differ in states in which marijuana use is legally permitted in some capacity. Therefore, it is imperative that property owners ask their insurance company whether damage caused by marijuana-related activity will be covered by their current policy or if coverage would be declined altogether due to federal marijuana policy.

These new laws are complex, and each case is unique. If you're a lessor or lessee in Broward County and have questions, consult with a Fort Lauderdale lease dispute attorney to see how these laws apply to your specific situation.

This blog will be updated as related developments occur. If you have any questions in the interim, call David S. Tupler, P.A.