DON’T SMOKE THE MESSENGER: Oregon Court Says Smell of Pot Not a Nuisance
A central claim by cities around Oregon looking to rush backwards on marijuana, including Medford and Grants Pass, is that regulation—even banning—was required to regulate the offensive odor of marijuana.
The absurdity of the claim was lampooned in May by Peter Walters of Pendleton, who wrote a letter to The East Oregonian asking since the city had passed an ordinance that classified the smell of marijuana as a nuisance, it take the next step and also ban the smell of farts.
“While farting may be legal in Oregon, many (including myself) are offended by the flatulent stench,” Walters wrote. “Too often, homeowners and businesses fail to contain farts to their property, forcing the rest of us to put up with the smell. Some habitual farters argue that they need to fart for medical reasons but that doesn’t mean my kids should have to smell their farts. The city council should stop looking the other way and pretending not to notice.”
And don’t even get Walters started on his roommate’s farts. Stiiiiiin-key!
Walters letter got a lot of national attention in the blogosphere because his letter so perfectly highlighted the stench of BS in the wave of marijuana bans. But ultimately, lawmakers ignored getting called on their hypocrisy. The smell of pot was banned. Farts were not.
But reason got a new ally on August 19 when an appeals court in Benton County ruled that the smell of marijuana was not objectively a nuisance.
“We are not prepared to declare, as the state would have us, that the odor of marijuana smoke is equivalent to the odor of garbage,” the court wrote. “Indeed, some people undoubtedly find the scent pleasing.”
The case centered on Jared William Lang, who was arrested for a series of petty offenses using evidence found when police searched his home after neighbors complained that the smell of marijuana was offensive. Lang argued otherwise, and said it was an example of an illegal search. He won and his convictions were overturned.
A central piece of the ruling is that the nuisance law was written to regulate odors that are “physically offensive,” which would require some element of physical distress to the body.
“Physical offensiveness is not established by the fact that the odor may be associated with substance abuse or criminal activity,” the court wrote. “Although a person could be offended as a result of those associations, that offense is moral or intellectual in nature, not physical.”
The court also wrote that for the smell to be a violation, “The actor must either intend to cause, or recklessly risk causing, public inconvenience, annoyance, or alarm.”
But the court also didn’t say that marijuana was inoffensive as a matter of law.
“We could perhaps say with confidence that a fleeting whiff of marijuana smoke would not offend a reasonable person, but as the intensity, duration, or frequency of the odor increases, it stands to reason that it would become objectively offensive at some point,” the court wrote. “Accordingly, we conclude that the nature of the odor is a neutral factor in this case.”
That means it’s now court-established legal precedent that the smell of pot is not a problem, only its duration and intensity.
So now that we’ve settled that, and we assume Medford, Grants Pass and others will see the error of their ways (snicker), let’s get back to the proposal to ban farts. Did you know they contribute to global warming?