So where exactly are people now allowed to smoke marijuana in Oregon? I get this question often from business clients, who understand that smoking marijuana in public is generally verboten. In the business context, the real question is whether the subject business constitutes a “public place” in the eyes of the state. If the answer is “yes”, smoking pot on site is not allowed.

HB 3400, the recent law legalizing recreational marijuana in Oregon, defines a “public place” as “a place to which the general public has access” and gives a list of examples, including: hallways, lobbies, highways, streets, schools, places of amusement, parks, playgrounds and areas used in connection with public passenger transportation. There is a bit more detail, but that is the crux of it.

The new law’s “public place” definition was copied verbatim from ORS 161.015(1), an Oregon statute that covers “Crimes and Punishments.” The legislature chose that definition over a comparatively relaxed definition found in the Oregon Indoor Clean Air Act, which targets tobacco smoking and defines a “public place” simply as “any enclosed area open to the public.” The idea with marijuana is that the state wants to keep consumption out of public view. Concerns as to public health may be secondary.

In a 2008 criminal case, the “public place” language just adopted by HB 3400 was read expansively by Oregon Courts. The Court of Appeals upheld a conviction of a defendant carrying a firearm in his car. The defendant argued that his car was not “a place to which the general public has access” as provided by the statute, even though that it was on a “street,” which is a “public place.” The court found that the legislature “intended to allow local governments to regulate …. on their streets and highways, even if such a firearm is kept in a place to which the general public has no access.”

In the business context, it is not clear whether the prohibition on smoking marijuana in a public place will be interpreted as broadly. The Oregon Liquor Control Commission (OLCC) is currently writing rules to expand upon HB 3400, but those rules may not address this question. In Washington and other states, the general prohibition against public smoking, coupled with the overall heavy regulation of marijuana, has made even dedicated smoking lounges a difficult endeavor.

Will Oregon be the same? On July 3, two days after legalization, at least one cannabis legalization celebration was held where patrons were allowed and even encouraged to smoke pot at a venue after purchasing admission. It seemed to go off without a hitch. That same day, the OLCCpublished a letter for its licensed liquor businesses, including temporarily licensed events, stating that the “public place” definition included each of them, and that the OLCC would sanction them for allowing public consumption of marijuana at their licensed premises.

For now, all we really know is that: (1) businesses serving liquor definitely should not allow marijuana consumption on site and (2) if the general public has access (especially free access), marijuana smoking is not allowed. As OLCC spokesman Tom Towslee said, a lot of the rest of it “is going to be left up to how vigorous or not vigorous local law enforcement wants to be in enforcing Measure 91. Maybe police in Eugene will look differently on it than police in Bend, or in Pendleton.”

We will see.

– Vince Sliwoski, for the Canna Law Blog

Attorney with Harris Moure