New areas of law develop quickly these days, presenting unique legal and business challenges. What are some of the most pressing issues with these novel and constantly evolving facets of the law? In this month’s discussion, we hear from four trailblazers about two distinct and cutting-edge areas: marijuana and drone law.
Nicholas Gaffney (NG) is a member of the Law Practice Today Editorial Board and a veteran public relations practitioner.
Marijuana Law Roundtable
|Aviva Gordon (AG) has more than 20 years’ experience practicing business law in Southern Nevada and has successfully argued before the Nevada Supreme Court. She graduated from Boston University in 1990 and with distinction from California Western School of Law in 1993. She is a member of the Nevada and California Bars.|
|Jessica McElfresh (JM) is a criminal defense attorney based in San Diego. She focuses much of her practice on issues related to medical marijuana in California. She also serves as community director for the San Diego chapter of the NORML Women’s Alliance, and has drafted model ordinances and ballot initiatives regarding medical marijuana.|
NG: When did you start practicing marijuana law?
AG: I began representing marijuana clients in 2015. I have represented clients in the corporate structure as well as licensing agreements among marijuana sellers.
JM: I started practicing medical marijuana law in California shortly after I began practicing law, in approximately February 2010. It’s made up about 80-90% of my practice since then. I focus on collective, dispensary and medical marijuana business formation, counseling and regulation, but also work with landlords who lease to such businesses. I also represent some qualified patients and collective operators in criminal court.
NG: What attracted you to this area?
AG: Medical marijuana just recently became legal in Nevada, and given my holistic representation of businesses, the implications of legalized marijuana affects most of my clients. The effect exists regardless of the business. There are far reaching implications in the employer/employee relationship, along with the potential liability in the event that injury results from impairment.
JM: Medical marijuana law was—and remains—an ever-changing and constant challenge. I knew I would never be bored or done learning. I also appreciated that medical marijuana law is part of the broader movement to reform drug policy in the United States, and wanted to be part of those social and legal changes.
NG: What are some of the emerging legal/business issues involving marijuana law that you find most interesting?
AG: I am drawn in by the inherent conflicts among state and federal law, along with how an employer has to navigate the inconsistencies as well as the unknown factors. I think the liability implications to an employer who knowingly employs a marijuana user can be far reaching, with substantial unintended consequences on HIPAA, the ADA, and the potential of injury resulting from an impaired employee. If an employee is a legal medical marijuana user, what is the employer’s obligations or abilities to limit the type of work that the employee does? There is a complete collision between the obligation to provide accommodation to an employee with a medical condition (under federal law) and preventing injury to the public or other employees. Similarly, if you knowingly employ someone who is impaired, and that results in an accident, as an employer you have tremendous exposure for the actions of your employee. Specifically for the marijuana businesses, I see the potential for the equivalent of dram shop liability. Similarly, I believe we’ll see products liability litigation (and corresponding affirmative defenses) for misuse of marijuana either by the initial purchaser or by a third party who receives the marijuana.
JM: The implementation of California’s new Medical Marijuana Regulatory Safety Act (MMRSA) will be fascinating and a huge challenge. That is the state’s new—and first—set of statewide laws to regulate the medical marijuana industry. Another part of this implementation is how each and every local jurisdiction in California will react to these laws. I hope that more jurisdictions will embrace these new laws and permit and regulate medical cannabis activity at the local level.
NG: How is the regulatory/legal environment affecting marijuana law and the business of marijuana?
AG: You cannot underestimate the banking/financing difficulties for a legal marijuana business. Further, the ultimate potential liability for a licensed marijuana business in the event of injury or illness resulting from the use of a legal product is vastly unknown. I think this risk is particularly true with respect to edible products and children. Ultimately, there will be litigation (likely criminal and civil) when a child ingests legal marijuana.
JM: The new regulations and the reactions of local governments to California’s MMRSA is a sea change that will forever alter my practice and the operations of my clients. So, I expect to have my hands full. Local regulation was already affecting my practice. I have spent much of my time since early 2014 helping clients apply for and receive conditional use permits from the City of San Diego to operate licensed storefront dispensaries. Fortunately, I enjoy helping clients figure out and comply with regulations.
NG: What do you find most rewarding about your practice?
AG: Throughout my practice, I am privileged to participate in the success and challenges of my clients’ businesses. As this area of law evolves, there will continue to be implications throughout all businesses. I want to be able to provide my clients with the tools to navigate through the unknown path where legislation, law enforcement and judicial determination is lagging far behind societal acceptance.
JM: The constant change. I will never stop learning and no day is the same. Admittedly, that can lead to a lot of long days and nights, but I wouldn’t have it any other way. Last year, I finally fulfilled a goal I set for myself back when I started practicing medical marijuana law in 2010, which is that I would get a permit for a client from a local government to operate a dispensary. I didn’t know it would take five years to achieve that goal—but it was worth it. Now, it’s on to state permitting and persuading local governments to regulate medical marijuana activity.
Drone Law Roundtable
|Khizar Sheikh (KS) is a member of Mandelbaum Salsburg PC and chairs its Cybersecurity & Privacy Law Group. Khizar focuses his practice on cybersecurity, privacy, and technology matters. Khizar received his B.A. from Hamilton College, and his J.D. from Rutgers Law School. Before law school, Mr. Sheikh studied molecular genetics and biochemistry at both the undergraduate and graduate levels, and also structured technology corporate debt financings with an investment banking boutique in New York City.|
|David P. Cooke (DC), of counsel in the Newark, New Jersey office of Genova Burns, is the director of the Firm’s Aviation & Aircraft Law Practice Group. David practiced for more than 20 years in the law department of Honeywell International, Inc. As an assistant general counsel he was responsible for all transactional and regulatory matters related to Honeywell’s large fleet of corporate aircraft. In addition, he has handled substantial environmental litigation matters including complex and class action lawsuits involving governmental and private parties.|
NG: When did you start practicing drone law?
KS: A few years now, after local and state government began asking me for advice about regulating drone use and passing new legislation. Recently, I have been working more on insurance issues.
DC: As director of the Genova Burns Aviation & Aircraft Law Practice Group, my field is aviation law, broadly speaking. That encompasses representing corporate flight departments and high net worth individuals regarding transactions and operational and regulatory issues related to turbojet and turboprop aircraft as well as emerging “drone law.”
NG: What attracted you to this area?
KS: Being part of the generation that grew up on Star Wars and Star Trek, I think the idea of autonomous flying unmanned vehicles is just cool. Separate and apart from the cool factor, drones have the potential to do amazing things, such as collecting more detailed data about our world, saving lives through search-and-rescue, treating people and delivering medicines in remote areas, and gathering better news. At the same time, these features make it easier to conduct warfare, take away people’s privacy, and increase the number of machines in the air and therefore collisions. Balancing the utility of drones against their ability to do harm, is terribly interesting and exciting.
DC: As an active pilot and flight instructor myself, I’d be following these developments regardless. Modern drones (or UAS—Unmanned Aircraft Systems—in FAA parlance), even the inexpensive hobbyist ones, represent a remarkable integration of aerodynamics, miniaturization, remote control, GPS navigation, and, in many cases, the ability to carry on-board video and still cameras, among other types of payloads. How these capabilities will be used, how existing privacy and property rights law will impact drone operations, and how tort and criminal law will develop, are what make the area exciting.
NG: What are some of the emerging legal/business issues involving drone law that you find most interesting?
KS: Drones can be useful in a variety of different industries, such as real estate, construction, environmental, photography, filming, agriculture, journalism, search and rescue, transportation, and energy, just to name a few. It is really any industry where it would be useful gathering useful data from the air. With this utility, however, comes certain liability risks that drone operators need to keep in mind, all of which are interesting:
- Personal and property injury claims against drone users by injured parties.
- Civil and/or criminal liability for negligent for reckless pilots.
- Changing local, state, federal, and international regulatory regimes for hobbyists and commercial operators, and the issue or preemption.
- Drone vulnerability to cyber attack and hacking to steal or alter data and/or commandeer the drone.
- Privacy infringement from monitoring of the public and employees, which risks are increased by a drone’s ability to surveil over long distance and to linger over specific areas.
- Understanding and complying with government requirements to share certain data, with or without a warrant.
- Upholding and honoring landowner airspace property rights.
For drone manufacturers, there are interesting issues very much like car manufacturers are dealing with today, e.g., product liability, hacking and cybersecurity, and ownership of intellectual property, such as engine source code.
DC: While I certainly appreciate the technology, their proliferation and ease of use presents a number of risks and threats. There will inevitably be accidents involving damage to persons and property on the ground. Their noise and mere presence can constitute a nuisance, and their ability to be used to ‘spy’ on people, homes, schools, and businesses present serious privacy issues. Then there is the potential for their use in criminal and terrorist activities, which can challenge the ability of police forces to counter them.
NG: How is the regulatory/legal environment affecting drone law and the business of drones?
KS: It does two things. First, the increased regulation will make it more expensive to fly, even for hobbyists (since they also need to register with the government and can incur civil and criminal liability if they do not). Second, the growing liability risks introduce an element of uncertainty into drone operation. Helping drone operators identify and transfer liability risk in a cost-effective way will continue to be important so that drone operators can focus on useful business and personal applications.
DC: Manufacturers, owners, pilots and users of drones need to be concerned about liability issues related to the danger that drones pose to aircraft. Granted, most drones flying today are small and lightweight, but they can still distract pilots or damage aircraft windshields or engines. Think bird strikes. How will the courts address civil or even criminal aspects of a case, for example, in which a drone operated to survey a commercial building in a densely populated area for a real estate marketing project, causes a medevac helicopter to crash while responding to an emergency, killing all aboard? That’s not as far-fetched a scenario as it might seem.
NG: What do you find most rewarding about your practice?
KS: It’s fun to be part of evolving law with many different moving parts. It is also why I love the other pieces of my practice involving privacy, cybersecurity, and technology. Every day brings a new intellectual challenge.
DC: As “drone law” evolves, it will establish significant penalties for those who intentionally, recklessly, or even carelessly violate the emerging regulations. But because of drones’ capabilities (aerodynamics, miniaturization, remote control, GPS navigation, ability to carry video and still cameras and other payloads, etc.) the breadth of legal issues that drone pilots and their customers will encounter is an open question. These issues will grow as quickly as the technology. That’s what makes things interesting.