THE OKLAHOMA BAR JOURNAL 30 | MAY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. BUSINESS SOLUTIONS Obviously, for businesses engaging directly in the possession, transportation, cultivation and sale of medical marijuana, the best practice will be to comply as strictly as possible with the statutory and regulatory requirements of the state. For third parties only involved with those operations indirectly but who derive profits from those enterprises, some measure of due diligence should be exercised to ensure the operation is licensed and compliant with state requirements. Commercial landlords who rent real property used for the cultivation, sale and distribution of medical marijuana should ensure that lease agreements contain provisions explicitly setting out the marijuana-related activities that are permitted on the property and those that are not. Specifically, the agreement should require the lessee to comply with all state and local regulatory requirements and expressly forbid the diversion of cannabis products for illicit and recreational use. It is also advisable to include lease provisions that specifically state that any use of the property for failure to comply with laws and regulations will be grounds for termination. While criminal activity is already a basis for eviction under Oklahoma law,25 noncompliance with state regulations is not necessarily criminal in itself but can remove the protections of state law and the Rohrabacher-Farr appropriations rider, permitting federal enforcement of the CSA. Lease agreements should contain curing provisions to allow the lessee to correct any technical acts of noncompliance within a certain period of time. It is also important to take immediate action to institute forcible entry and detainer actions upon notice of any explicit intentional criminal activity. These safeguards will help ensure that the “innocent owner” defense is protected by showing that “upon learning of the conduct giving rise to the future, [the claimant] did all that could be expected under the circumstances to terminate such use of the property.”26 The Civil Asset Forfeiture Reform Act also provides specific criteria evidencing the application of the innocent owner defense, such as that the claimant: 1) Gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and 2) In a timely fashion, revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.27 While it is still unclear what extent of state compliance must be shown in order to avoid federal criminal prosecution and civil forfeiture of assets, “an ounce of prevention is worth a pound of cure,”28 and operators would be well-advised to do as much due diligence as circumstances allow. LEGAL SOLUTIONS Following a federal civil asset forfeiture relating to a medical marijuana operation, it is always worth considering whether the expenditure of federal funds in the investigation and litigation is in violation of the Rohrabacher-Farr appropriations rider. While this issue has yet to be decided in the 10th Circuit, an argument could be made that the rider prohibits the expenditure of federal funds even in the face of admitted noncompliance with state medical marijuana laws and regulations. In some sense, the rider allows state authorities to “occupy the field” of medical marijuana distribution, possession and cultivation, including licensure revocations and prosecution of criminal charges for noncompliance. This interpretation would also be in accord with the 10th Amendment reservation of “powers not delegated to the United States by the Constitution, nor prohibited by it to the States” and the exhortation that state governments have control over “the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”29 It could further be argued that the federal government lacks jurisdiction to enforce the CSA for medical marijuana-related activities. The CSA also states: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.30
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