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6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C. 

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

29
Sep
2021

Part 4: The Production and Sales of Cannabis in Virginia

 

The Production and Sales of Cannabis in Virginia

This article provides a high-level overview of the new legal landscape in Virginia related to the production and sale of cannabis and the opportunities out there for entrepreneurs.

For perspective, the Virginia General Assembly has only approved four (4) companies to legally process pharmaceutical cannabis for medical use, with one additional permit authorized, but unissued. The cultivation of hemp is currently allowed under a regulated process. And as of July 1, 2021, personal consumption and home cultivation of marijuana have been decriminalized to a large extent on the state level here in Virginia. Notably, the use, sale, and possession of cannabis over 0.3% THC in the United States remain illegal under federal law, despite laws in many states permitting it under various circumstances.

Cannabis PlantWhile all of this represents progress, in the overall push for legalization, we are still years away from state legalization of the production and sale of retail cannabis. For those interested in participating in this budding industry, keep in mind that you will need a license issued by the Cannabis Control Authority, which many anticipate will be much more challenging to obtain than an alcohol license.

The specific requirements for those license applications will not be disclosed publicly until July 1, 2022, with the first applications expected to be accepted July 2023 and retail sales expected to finally become legal in 2024. So while two years may seem like a long way away, if you are interested in being competitive in the license application process, you need to start positioning yourself now.

The state is likely to issue less than 1,000 licenses, which will be split between certain levels of the cannabis industry. It is anticipated that there will be 450 licenses available for cultivators, 60 for product manufacturers, 25 for wholesalers, and 400 for retailers. The application process is expected to favor applicants who demonstrate social equity, public health, and public safety priorities.

While this certainly provides some reason for optimism for those hoping to play a part in the industry, it’s important to remember that the regulatory framework and path towards legalization does not become effective until the future General Assembly and Governor approve the legislation in 2022. That said, if you are serious about getting a permit and being on the front end of the marijuana industry boom in Virginia, it’s important to surround yourself with professionals that can make your vision a reality. One of the old rules of thumb for aspiring entrepreneurs is to surround yourself with a decent lawyer and a good accountant.

VFN is one of the most highly regarded law firms here in Northern Virginia, with seasoned and well-connected attorneys who can help you establish your position in this state’s cannabis industry. Our services will be invaluable to clients, who will need to

  1. Establish a legal entity and presence here in the Commonwealth to become a qualified applicant;
  2. Obtain financing through investor relationships and/or financial institutions to secure required capital to be considered for licensure;
  3. Purchase the real estate and secure proper zoning and approvals required for your business
  4. Create solid commercial sale/purchase contracts to ensure payment and minimize risk exposure; and
  5. Establish employment procedures to ensure your business runs smoothly.

I have already been advising clients on how to prepare themselves for the permit application process for the past few years, which has been an exciting and engaging experience for me. I am excited to see what the future holds in this new industry and to be working with clients on the front lines. If you need me or want more information, please feel free to give me a call at 703.479.3181, reach out to me by email at TBlaser@VFNLaw.com, or visit my attorney page at https://www.vfnlaw.com/portfolio/tyler-j-blaser/.

24
Sep
2021

Threat to Broadband Expansion

 

Threat to Broadband Expansion

In Grano v. Rappahannock Electric Cooperative, Judge Moon of the Federal District Court made preliminary rulings about a new Virginia law that allows electric utilities to put broadband cables in existing electrical easements.

The facts are these: A new state law in 2020 granted electric utilities like Rappahannock Electric Cooperative the power to install broadband cables in existing electric line easements, regardless of what the easement deed says. The same law limited the kind of compensation that property owners can receive if that happened. Rappahannock proposed to buy the right to install broadband on the property of John and Cynthia Grano, but couldn’t agree on terms with them. Rappahannock never installed any broadband on the Granos’ property but asserted that it could if it wished.

Judge Moon’s opinion found that the Granos’ claims said many of the right things to move forward in Federal court. For example, Judge Moon decided that the Granos had properly alleged they suffered actual harm when the new law took effect in 2020 and that the new law did not provide an adequate remedy for any harm that they suffered. There is little analysis in the opinion about why the new law – which allows property owners to file a claim for trespass – is inadequate, but the opinion points to the fact that the new law limits the amount of money that property owners can get if they win their case. (Lots of other laws limit the amount of money courts can award for different kinds of cases; Virginia has caps on medical malpractice claims and punitive damages, for instance).

Ultimately, Judge Moon ruled that two of the Granos’ three claims had to be dismissed because Rappahannock did not take any action to exercise its rights under the new law. One peculiar feature of Judge Moon’s ruling is that it says that the third claim should have been dismissed as well, but Judge Moon did not dismiss that claim. The third claim was for unconstitutional impairment of contracts, and footnote 8 points out that such a claim cannot be brought under the federal statute that the Granos used as a basis for their suit. Rappahannock asked the court to dismiss the third claim, but for a different reason.

The case continues to move forward. The Virginia Attorney General has filed notice of his intent to intervene as a party in order to defend the law.

Please contact Martin Crim, mcrim@vfnlaw.com or 703-618-3205 should you have any questions or need assistance. 

22
Sep
2021

Part 2: What Constitutes Relief for the use of Cannabis Oil!

 

What constitutes relief for the legal or lawful use of cannabis oil?

The new law statute talks explicitly about what happens when somebody needs to have medical cannabis oil. One thing they must do, is they have to possess an unexpired written certification from a practitioner (which could be a doctor or a nurse practitioner.) Someone who’s usually allowed to write prescriptions. They must be registered with the board of pharmacy, and it’s not just any doctor. Anybody who is writing certifications for cannabis oil must be registered with the board of pharmacy.

In addition, once they have their written certification, the patient must register with the board of pharmacy. What they do now with their written certification is they go to a registered medical cannabis pharmaceutical processor, distributor, or dispensary. In the Commonwealth of Virginia, there are only five that have the authorization, and they’ve been spread out throughout the Commonwealth to have it around all the various parts of the state. Prince William County has one dispensary that has been approved, and that is located here in Manassas. It’s called Beyond Hello.

What if you’re an employer and believe the lawful use of cannabis oil impairs the employee’s work?

The new law talks about: What if the employee who needs the medical cannabis oil brings that oil with them to work; what are the employer’s rights under that circumstance? The law is very clear that employers with employees who are lawfully using cannabis oil still retain the ability to take adverse employment actions. That means you can discipline them, fire them, talk with them about the issues for any work impairment caused by using the cannabis oil.

Suppose the employee comes to work and is not performing their work and believes it’s associated with the use of cannabis oil. In that case, the employer can, in fact, discipline them or take adverse action, up to and including termination, based on the facts and the evidence you have at the time. Employers can also prohibit the possession of cannabis oil during work hours.

Even if the employee has a written certification, the employer can say that we do not want cannabis oil on our work premises, even though you have it lawfully.

What if you are a federal contractor or depend on federal funding? How does that impact you now with the new Virginia law and lawful use of cannabis oil?

Again, Virginia law has addressed this. It specifically says that for those who are federal contractors or subcontractors with employees who are using cannabis oil lawfully, they are not required to commit any act that would cause the employer to be in violation of any federal law or result in the loss of federal contract or federal funding. So, again, you do not have to do anything that would jeopardize your status as a federal contractor or subcontractor.

What if you are an employer in the defense industrial-based sector, which talks about the military department of defense, or you’re dealing with them as a federal contractor or subcontractor?

What can you do regarding this new Virginia law? The statute specifically says that defense industrial-based sector employers or prospective employers (meaning that you’re looking at hiring somebody, but you’re still in that sector) are not required to hire or retain any applicant or employee who tests positive for THC in excess of 50 milligrams for the urine test, 10 milligrams for the hair test. So, you do have some rights to limit your exposure. The reason for this is that you don’t want someone who may be impaired while on the job.

An employer to make sure they still have a safe work environment. If you have concerned somebody who may be under the influence of lawful cannabis oil, you probably should seek counsel to address how to handle this matter lawfully. You’ve got to balance the competing laws.

What can employers do in the application process?

As an aside, I will say that the EEOC says if you are an employer with 15 or more employees, you are covered by the federal law Title VII of the civil rights act of 1964. There are provisions that talk about the protection of employees and make sure that if you’re going to do a background check, it doesn’t violate or create an implicit bias. There is guidance, and if you want to look upon the EEOC, it talks about criminal history checks. There is a perception, and I think supported by evidence, that those who are Hispanic or African American, particularly males, were disproportionately impacted by the laws. Suppose you are doing background checks and don’t have a reasonable basis for saying there’s a reason to exclude someone with that criminal background. In that case, it may result in potential exposure to liability for that.

Where we are right now is the issue of doing background checks related to the new law in Virginia?

It specifically says employers and educational institutions are prohibited from requiring an applicant to disclose information related to any arrest, criminal charge, or conviction for any decriminalized possession of marijuana. So, what this is doing is it is resulting in an employer saying, listen, I’m just not going to even ask for background if there’s any marijuana charges or charges related to marijuana? I think people are wrestling with that right now. What do they want to do as part of their process going forward?

Some employers are saying, listen; I don’t know that I really care whether they used marijuana when they were in college or whether they used marijuana ten years ago. Do they care maybe if they used marijuana last week? Well, maybe some do, maybe some don’t. There are businesses that you know have a philosophy that says I don’t care what you do on your personal time. In Virginia right now, no law addresses that. Some states do have laws that address limitations on employer’s rights to limit people’s personal time. What they do on their personal time, in Virginia, there is no law on it, but what they’re suggesting here is that you can’t require an applicant to disclose that information if it’s an arrest, criminal charge, or conviction for any decriminalized possession of marijuana.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance

31
Mar
2021

Town of Quantico: Chesapeake Bay Preservation

Olaun A. Simmons, as legal counsel for the Town of Quantico, Virginia, recently completed a lengthy and extensive review and revision of the Town of Quantico’s Chesapeake Bay Preservation Ordinance and Comprehensive Plan in order to achieve compliance with Virginia’s Chesapeake Bay Preservation Act.

As a result of Mr. Simmons’s work and diligence, on March 30, 2021 the Virginia Department of Environmental Quality determined that the Town of Quantico’s Chesapeake Bay Preservation Act program is in compliance with the Chesapeake  Bay Preservation Act pursuant to §§ 62.1-44.15:69 and 62.1-44.15:71 and the Chesapeake Bay Preservation Area Designation and Management Regulations 9VAC25-830-260.

30
Mar
2020

Virtual Meetings and Consultations Now Available

In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.

If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.

17
Dec
2019

Six Attorneys Named Legal Elite in 2019

Vanderpool, Frostick & Nishanian, P.C. is proud to announce that six of its attorneys have been recognized by the Virginia Business Magazine as being among Virginia’s “Legal Elite” within their various practice categories. All of the attorneys named have been nominated as Legal Elite in the past and we’re extremely honored to celebrate their continued success and exceptional work!

Litigation & Construction– Randolph Frostick

Land Use & Real Estate– Michael Vanderpool

Intellectual Property– Christopher Collins

Employment Law– Kristina Keech Spitler

Young Lawyer (under 40) – Brett Callahan

Business Law– V. Rick Nishanian

25
Sep
2019

Four VF&N attorneys rated AV Preeminent®

Congratulations to our team of AV Preeminent® attorneys Randolph Frostick, Olaun Simmons, Michael Vanderpool & Kristina Keech Spitler! AV Preeminent® is Martindale-Hubbell’s highest professional achievement, a designation trusted worldwide by buyers and referrers of legal services.

The process of Martindale-Hubbell® Peer Review Ratings™ has been the gold standard in the rating of attorneys’ legal ability and high ethical standards for more than 100 years. One of the reasons this award is such an honor is that it is only bestowed on a select few, about 10% of all attorneys. Because of this, it is a designation that can be trusted by clients and those who need to refer clients for other legal services.

For more info visit: https://www.martindale.com/ratings

14
May
2019

Book Smarts…VF&N attorney, textbook contributor

Pictured above: VF&N land use and zoning attorney, Karen Cohen, with legendary engineer, Sid Dewberry, PE, LS, Chairman Emeritus, Dewberry, Kat Grimsley, Director of the MS Real Estate Development program at George Mason University, and the team of book contributors, celebrating the publication of the third in a series of land development books by industry-leading design firm, Dewberry. 

Development of the Built Environment: From Site Acquisition to Project Completion is a textbook that explores the entire development process from an applied perspective to provide architects, civil engineers, and other team members with an understanding of the context in which real estate development occurs.  Karen, fellow alumnae of the Mason Masters of Real Estate Development (MRED) program, and others, were contributors and advisors.

2
May
2019

Land use and zoning explained: Repurposing an established building through a special use permit

The commercial real estate and property sector in Northern Virginia and Prince William County has experienced fluctuations in recent years which resulted in vacant buildings. For the owners of these properties, they’re left with a tough decision – let the property stay vacant or repurpose the property.

Repurposing property is using a building differently than the original intent. As a property owner, you are looking for cost-effective ways to keep your investment profitable.  For example, If you turn an old factory into loft apartments, or a barn into an event center, the building sees new life, you continue to make money, and all without building on existing green space. But it isn’t always that easy to change land use of an existing property.

Land use considerations

Land use laws regulate how businesses can operate on certain lands. The most common form of land use regulation is zoning. Cities use this legal process all across the country to help regulate their local development. Zoning laws prevent you from coming home to your well-established housing neighborhood and finding a big box store has set up shop next door.

While it’s not likely for a big box store to pop up next to houses, it is possible as in our earlier example, for a factory to become loft apartments. The zoning for that land must change to account for residents living on the property instead of people coming to work. Without making this change, it puts both the business operator and you, the property owner, in legal peril. It’s up to you to make sure the city allows the land use modification.

Special use permit (SUP)

A special use permit allows a local government to take a look at one particular development and to impose conditions needed to mitigate any impacts on the community. It is available only if the zoning ordinance provides for it.

To obtain a special use permit, you must get approval from the governing body in your community. You need to file an application, submit the filing fee, provide documentation supporting your request, and submit to questioning at a public hearing.  See the steps outlined below:

The process to obtain a SUP