FAQs: City of Portland, Maine - Marijuana Use and Possession

11/8/2013 - FAQs: City of Portland, Maine - Marijuana Use and Possession


1. What is the effective date of the new marijuana ordinance?

Under Chapter 9 of the City Code, the new ordinance will be effective thirty (30) calendar days after the declaration of the official canvass of the return of the election or December 6, 2013.

2. How long will the new ordinance be in effect?

As specified in Chapter 9 of the City Code, an ordinance cannot be repealed or amended for five (5) years from its effective date, except by a vote of the people. Upon the expiration of five (5) years, the ordinance may be amended or repealed by the City Council after a public hearing.

3. What are the current laws related to marijuana?

The following is a list of the current laws that apply to marijuana in order of preemption (i.e., federal laws preempt/overrule state laws and state laws preempt/overrule local laws):

Federal Law:

The sale, use and possession of marijuana are illegal under the federal Controlled Substances Act. Federal law applies in all 50 states; even if marijuana possession is legal under state law. Possession of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first conviction. For a second conviction, the penalties increase to a 15-day mandatory minimum sentence with a maximum of two years in prison and a fine of up to $2,500. Subsequent convictions carry a 90-day mandatory minimum sentence and a maximum of up to three years in prison and a fine of up to $5,000.

State of Maine Law:

The sale, use and possession of marijuana are also illegal in Maine, except for the medically authorized use of marijuana. Possession of a small amount of marijuana (less than 2.5 oz.) has been “decriminalized” and is a civil violation which is punishable by a $350-$1000 fine. Possession of over 2.5 ounces of marijuana is a crime under state law. As the amount of marijuana increases, the penalty also increases from a Class E misdemeanor punishable by a sentence of 6 months imprisonment and a maximum fine of $1,000 up to a Class B felony punishable by a maximum sentence of 10 years imprisonment and a maximum fine of $20,000.
Sale, cultivation or distribution of marijuana are all crimes and in each case the penalty increases as the amount of marijuana involved increases. The sale of 1 lb. or less of marijuana is a Class D misdemeanor punishable by a maximum sentence of 1 year imprisonment and a maximum fine of $2,000. The penalty then increases up to a Class B felony punishable by a maximum of 10 years imprisonment and a maximum fine of $20,000 for the sale of 20 lbs. or more.
Growing 5 marijuana plants or less is a Class E misdemeanor punishable by a maximum sentence of 6 months imprisonment and a maximum fine of $1,000. The cultivation of 500 or more plants is a Class B felony punishable by a maximum of 10 years imprisonment and a maximum fine of $20,000.
Therefore, while possessing marijuana may be a civil violation in some cases; growing or obtaining marijuana are generally treated as crimes in Maine.

4. Why is it important to know that state laws in most instances preempt/overrule local laws?

Preemption is a legal doctrine that means that a state law displaces or overrules a local (city or town) ordinance, law or regulation that is in the same subject area and is in conflict with the state law. Because Maine already has state laws governing the use, possession and sale of marijuana, those laws overrule the new city ordinance.

5. How will Portland Police Officers Comply with the New Ordinance?

Portland Police officers are sworn to uphold the law. Those laws include federal, state and local laws. The passage of this ordinance will not affect the police department’s enforcement of state law. Officers will continue to use their discretion and judgment in a manner that will ensure that their enforcement authority is exercised in a fair and judicious manner.

6. Where will marijuana use be allowed and/or not allowed according to the ordinance?

According to the language of the new ordinance, recreational marijuana use by adults 21 years of age or older is not allowed in public spaces, on school grounds or on transportation infrastructure.

7. Can you use, smoke and/or ingest marijuana in public through methods such as the baking of marijuana into food products?

No, according to the language of the new ordinance, the use and/or ascertainment of marijuana cannot occur in public spaces.

8. Where, if anywhere, can marijuana be sold/purchased?

The new ordinance does not specifically address where marijuana can be sold and/or purchased. It does, however, indicate that adult persons 21 years of age or older can engage in the ascertainment of marijuana in private, but cannot do so in public spaces, school grounds or transportation infrastructure.

9. Can a landlord prohibit marijuana smoking?

Yes, according to the language of the new ordinance a landlord can prohibit marijuana smoking in units. Current state law requires that common areas of the building, such as hallways, stairwells, laundry rooms, etc, are required to be both marijuana and tobacco smoke-free.

If a landlord chooses to prohibit marijuana smoking, the ordinance requires that a sign notifying tenants of the policy be posted. Additionally, notifying tenants in writing of the marijuana smoking policy may improve compliance and can be done in conjunction with the current state law that requires a landlord to disclose in writing if tobacco smoking is allowed or prohibited.

10. Can private clubs allow marijuana smoking?

According to the language of the new ordinance, marijuana use is not allowed in public spaces, on school grounds or transportation infrastructure.

11. How does the new ordinance address youth access to marijuana?

The new ordinance specifies that only adults, age 21 years or older, are allowed to engage in recreational use of marijuana in private. It further specifies that the use of marijuana in public spaces, school grounds and transportation infrastructure is prohibited.