Like many recent court cases involving marijuana, last week’s Oregon Court of Appeals decision got folks talking. Most headlines read something like “Oregon court rules that the odor of marijuana smoke is not legally offensive.” This is accurate but incomplete, and sort of misleading. A complete description of the court’s holding would read something like “Subject to appeal, Oregon court rules that an affidavit which fails to describe the intensity and persistence of a marijuana smoke odor, cannot, as a matter of law, satisfy the probable cause standard required for search warrant issuance.”

Marijuana Odor and OregonSuch a headline would be unwieldy, but it is important to note that this was a criminal case construing a criminal statute. The law at issue, ORS 166.025, provides that a person who “creates a hazardous or physically offensive condition” commits the crime of “disorderly conduct in the second degree.” Though the court’s ruling (if it stands) may constitute a helpful precedent for civil nuisance complaints, the odor of marijuana has not been adjudicated as powder fresh. Instead, the court’s ruling seems to imply that if a smell were intense and persistent, it could be “physically offensive” enough for a magistrate to issue a search warrant under the statute.

Although this case did not concern “nuisance” in the civil context, the court reviewed the legislative history of the criminal statute at issue and helpfully observed that it appears “designed to reach activity that constitutes a public nuisance” (emphasis added). In civil law a “public nuisance” is an unreasonable interference with a right common to the general public. “Private nuisance,” on the other hand, is an unreasonable invasion of a person’s interest in using and enjoying their land. A nuisance may be public or private or both.

Regardless and in every case, nuisance describes the intentional, negligent or reckless invasion of a common right or private property interest (i.e., by marijuana smoke), but not the invasive acts creating the nuisance (i.e., smoking marijuana). This means that a nuisance complaint cannot be brought against someone for cannabis-related activities on her own property, if those activities do not cause harmful effects over property lines. A plaintiff must also plead and prove that the nuisance is substantial and unreasonable to prevail.

So, could the smell of marijuana smoke or plants be considered substantial enough, and unreasonable enough, for a plaintiff to prevail in a civil nuisance case? Most likely, yes. In making this determination, a court would consider the interests of the parties involved and weigh the harm suffered by the plaintiff against the utility of the defendant’s conduct. For example, let’s say a downwind daycare owner brings a private nuisance complaint against a large marijuana processing operation that creates a strong, persistent odor from 1,001 feet away. It is very possible that a court would consider the odor harmful, and the utility of the defendant’s conduct low. In such a case, the plaintiff might prevail.

Other cases are not so clear. Our cannabis litigation lawyers have defended a number of marijuana growers in private nuisance complaints brought by neighbors. Sometimes these complaints are litigated but other times creative workarounds are available. For example, one client with a large indoor grow operation recently decided to retrofit its building with scrubbers after ongoing complaints by neighboring businesses. This solution was reached after we met with the local fire department, a city office, neighbors and the client’s landlord. Ultimately, the landlord even agreed to foot a large part of our client’s costs so as to keep our client in the building, despite lease terms that put odor control obligations squarely on our client.

Fortunately for that client, no local ordinance expressly declared marijuana a nuisance and its neighbors had less leverage than they would have liked. In other cities, that would not have been the case. The City of Pendleton, Oregon, for example, home to the World Famous Pendleton Round Up and all of its associated smells, recently declared marijuana odor a nuisance. Accordingly, a city ordinance now expressly prohibits marijuana odors from leaving a person’s property. (Pendleton is the county seat Umatilla County, which has opted out of commercial marijuana activity entirely). In Pendleton, even a casual marijuana user could be liable on a nuisance theory for smoke smells drifting across to a neighboring residence.

Marijuana users and businesses need to be mindful of the immediate external effects associated with using and handling marijuana, along with any local rules. Despite the recent Oregon Court of Appeals decision, there are no hard and fast rules on when and whether marijuana smoke may constitute a nuisance, and when it’s just a thing. Smart business practices—including choice of location—will minimize exposure to these types of claims.