“When Illinois passed the legal marijuana statute, initially the Gaming Board pronounced that anyone investing or participating in the medical marijuana business could not be licenced for a gaming operation in Illinois.” William Bogot, Partner, Fox Rothschild LLP
Gaming Control Board approve a partial owner of a gaming operation who is also an owner in a federally illegal marijuana operation? Te answer is that it depends state-by-state.
When Illinois passed the legal marijuana statute, initially the Gaming Board pronounced that anyone investing or participating in the medical marijuana business could not be licenced for a gaming operation in Illinois.
Te Gaming Board clearly stated that it would deny any kind of licensure in this case. However, my firm and others explained to the Gaming Board that, respectfully, its position was untenable due to Illinois’ medical marijuana statute, which specifically states that no state agency can deny a person a right, licence or priviledge simply because they are involved in the state legalised marijuana industry in Illinois. Once the Gaming Board was shown this, their hands were tied, so we now have individuals involved in both the state marijuana industry and the state gaming industry in Illinois.
Many state medical marijuana laws provide that employers cannot discriminate against any employee registered as a medical marijuana qualifying patient, including: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania and Rhode Island. Nevada is different. Its Gaming Control Board appeared to take the opposite stance. If you are involved in the state legalised marijuana industry then you may not be granted a licence or be found suitable to operate in the gaming industry. Nevada has been the most upfront in this regard.
How do the states handle the blurring of boundaries regarding state and federal law in relation to gaming and cannabis licenses?
P88 NEWSWIRE / INTERACTIVE / MARKET DATA
Ahead of G2E last year, I made calls to gaming regulators across multiple states to gauge their position on that question. Most of the regulators had not taken a position, apart from Nevada. It’s hard for the state gaming regulator to find someone unsuitable in relation to gaming, if they have a licence for cannabis from the exact same state that legalises cannabis. How can a state licence someone as fit for cannabis, but say they’re not fit to be involved in the state’s gaming industry?
Nevada is the gold standard in terms of keeping unsuitable individuals out of the gaming industry and has taken the hardest line possible - which is understandable, but it puts them in a unique position. Interestingly, when the Nevada Gaming Commission affirmed the Nevada Gaming Control Board’s decision, three of the five members (all attorneys) recused themselves because their law firms represented medical marijuana applicants.
Does the screening of employees by employers for drug use present problems due to the legalisation of cannabis in certain states?
I’m not aware of any legal cases regarding casinos screening employees, but this is an issue raised by a lot of casinos. Early court decisions regarding marijuana in the US certainly favoured the position of the employers, as for the most part it was illegal under state and federal law for employees to use cannabis, even with a medical marijuana card. However, recently the tide has turned. A handful of courts, including federal courts, have ruled that if someone does not hire on the basis of medical marijuana use, they can be seen as at fault.
In the case of an intern taking a drug test for a job application who was rejected due to being a
medical marijuana patient - the intern sued and the court held in favour of the intern. Te court ruled that they company should reasonably accommodate that person. Tey couldn’t come to work intoxicated, but taking medical marijuana ioff duty shouldn’t mean that you can be refused employment.
However, this decision appears to conflict with a different case in Colorado, where a quadraplegic taking cannabis off duty for muscle spasms came into conflict with the company’s zero tolerance policy, despite being a model employee in all other regards. Te case went to the Colorado Supreme Court, which sided with the employer. Te moral of the story is that if casinos are looking to write their employee manual in relation to this issue, then they have to address the issue on a state-by state-basis. Tere is no uniformity in this area.
How should resort hotels deal with the issue of marijuana use?
Hotels don’t want to be policing guests or removing them due to cannabis use, instead they are grouping the smoking of marijuana in rooms into general smoking policies, stating that any smoking, whether cigarettes or marijuana, will incur a cleaning fine - which is usually several hundred dollars. Where the boundaries are blurred is in the use of products such as hemp
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