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Tuesday, October 20, 2020
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RIGHT TO THE POINT: Will hotels consent to the use of marijuana on their premises?

So if you read the first part of my writing regarding the ten grammes of marijuana which is being decriminalized, you will realize that it is a myth that the possession and use of marijuana has become legal. It may seem like splitting hairs, but there is a vast legal difference between the law not pursuing a legal recourse because you have in your possession a small quantity, in this case ten grammes, and the outright possession of any amount, anytime and anywhere. It is also a myth that there are no repercussions since it places a more onerous condition on persons with more than ten grammes, or with the ten grammes or less found at an educational institution and on minors and their parents.

It makes it an offence, if it’s a minor or an adult who has the ten grammes or less on the premises of an educational institution, because the offence is not really having the ten grammes for the adult, but having it on that specified prohibited premises. However, for the minor, the offence is both having the ten grammes, since minors are not allowed possession and use of marijuana, and having it on the premise of an educational institution. Be clear that once it is above the ten grammes, these provisions don’t count since anywhere and by anyone in possession of more than ten grammes it is still an offence and illegal under our laws.

Cannabis and cannabis resin
It must be noted that while my reference is to the “herb”, the law specifically uses the term “cannabis” and makes it known that the ten grammes rule applies to both the cannabis itself and the resin from it. For elucidation, it must be noted that resin is a sticky substance that oozes out of trees. The cannabis plant produces resin as well and thus cannabis resin refers to the resin obtained from the hemp plant and is thought to be the active narcotic agent in marijuana. The synonyms: cannabin, hashish [hash-çsh] preparation of resin scraped from the flowering tops of the plant Cannabis sativa, smoked or chewed for its intoxicating effects; it is far more potent than marijuana. However the law is saying that if you are found in possession of either the cannabis plant itself or the resin of the cannabis plant, such amount, if ten grammes or below, will not attract legal consequences, unless it is above the ten grammes limit.

It is Section7 of the principal Act that previously made it absolutely illegal to have any quantity of cannabis or its resin in one’s possession. The section refers to it as “controlled drugs”, of which cannabis is only one kind. However, under that same section based on the amount of different types of controlled drugs possessed, the law then automatically upgrades the charge from mere possession to “possession of such controlled drug for the purpose of supplying it to another for drug trafficking”, and then the penalty is even more severe.

On the premises of another
Under the principal Act at Section 10 it is also an offence against the “the occupier concerned in the management of any premises”, where one of the controlled drugs is either produced, supplied, prepared, or/and smoked, if said occupier knowingly permits such activity.

However, under the proposed amendment now, the exception to that would be where the controlled drug is ten grammes or less of cannabis or cannabis resin. Thus, it remains totally illegal in all other circumstances and for all other types of controlled drugs. Also, the ten grammes remains free from any sanction once this activity is not being conducted on the premises of an educational institution and it is not being carried out by a minor. Under the proposed amendment, it also states that “a person who frequents any premises shall not be regarded as a drug user of cannabis or cannabis resin” provided his use is of ten grammes and less. It must be referring to each occasion, I opine. Of course the premises could never be of an educational institution.

I must say this provision is a bit awkward, because the difference between being called a drug user is now based on whether you have possession of ten grammes or less of cannabis or cannabis resin. Thus, there can be a man who uses ten grammes once a week as opposed to one using ten grammes each day or several times of the day.

Section 12 of the principal Act has a major amendment in that previously it was totally illegal to smoke, use cannabis and cannabis resin any and everywhere. However, under the amendment it will no longer be a criminal offence once it is ten grammes or less and it is done on certain premises with permission. The exact wording is as follows:

“… the circumstances are that the total amount of the cannabis in the possession of the person is not more than ten grammes, and that the activity referred to… occurred upon the premises (including, for greater certainty, any yard or grounds appurtenant thereto) of,

(a) the residence of the person concerned;

(b) a residence owned or lawfully occupied by another person, and the activity is carried out with the consent of the other person;

(c) private sleeping accommodations of guest for reward (whether a hotel room or other lodging) secured by the person concerned, and the activity is carried out either with the consent of the proprietor or duly authorized manager of the accommodation.”

Impact on business location
The above cited provision brings to light two very serious and important areas that need to be understood by all, but especially business owners. Firstly, it addresses the “activity”, which is now lawful to do with ten grammes which are, “smoking or otherwise using cannabis and possession of pipes or other utensils in connection with the smoking of cannabis”.

Secondly, and a more critically important issue,is that the owner of the stated premises where the ten grammes or less is being used must give consent to cannabis being smoked or used on his/her property. Thus, if you are having a party please let your guest know if it’s a marijuana-free party or if consent is given to allow said act. If it’s your own personal residence, then there is no issue, but if you have ten grammes or more on the premises of another and intend to use it, not just possess it, then you can only do so with the lawful owner or occupant’s consent, whether the premises is being leased or rented.

Following still in that same vein, it gets even more interesting where the place in question is a hotel, lodge, or like premises rented out for short-term use. Now these types of businesses must decide what their policy will be and inform customers up front.

However, I opine, the issue is deeper than that, in that there might be other customers who will refuse to use said business for the mere fact that they allow the activities cited above, on the premises. It places hotel owners in the same situation like when we have people wanting only non-smoking rooms, but this might be people wanting only marijuana-free premises.

I believe it also puts the proprietor in a dilemma, as he may find himself in a situation where on a case-by-cases basis, customers may seek permission to smoke cannabis on the premises. However, what is not clear in the law, is whether by virtue of having ten grammes and less being smoked on the premises, it becomes an illegal act by the fact that the proprietor refused to give consent, or claims he did not give consent for said activities on its premises. It is best now for business owners to have registration forms which clearly stipulate their position on the issue at check-in time so that there is concrete evidence of consent or non-consent. This serves as protection to both proprietor and customer, since the proprietor can give verbal consent, but out of malice call the police and say otherwise…. You never know!

(To be continued in the next issue of the Amandala)

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