Understand the regs before breaking ground or renovating
Contractors performing tenant improvements or original construction work for recreational facilities in Oregon should familiarize themselves with the security requirements under the applicable regulations, which can generally be found in Division 845, Chapter 25 of the Oregon Administrative Rules.
Before beginning a marijuana-related project, it may be a good idea to pre-clear the construction plans. Construction or remodeling can be expensive and it’s usually better to save a little time on the front end than redoing expensive construction work.
Pre-clearance is required for remodeling projects to previously licensed premises which (a) change total size or capacity; (b) change any door or entryway; (c) require any change to the security system; or (d) change a co-located primary residence. If the construction project is a remodel of already licensed premises, then workers will have to sign in and out every day and wear specially issued identification badges.
Keep It Safe
Marijuana facilities must have adequate safeguards against theft or diversion. For example, commercial-grade, non-residential door locks must be installed at every external door and gate. During non-operational hours, retailers must keep all usable marijuana in a safe or vault; other license-holders may simply lock up the marijuana securely.
In order to be compliant, safes must be immobile — either because of an empty weight in excess of 750 pounds or because it is securely and permanently attached to the structure. Qualifying vaults must be wholly enclosed, constructed of steel-reinforced or block concrete, with at least a half-inch thick steel-plated door with a multi-position locking device. Producers, processors and wholesalers must store their marijuana behind a properly installed steel door with a steel frame.
Sound the Alarm
Facilities must have a professionally installed security alarm system on all entry points and perimeter windows. The facility must be continuously monitored by the alarm system, which must be able to detect movement inside the facility, be programmed to notify a security company that will contact the facility operator in the event of a breach, and either have at least two panic buttons that are linked to the alarm system or a dedicated hotline to the police or a private security company.
Facilities must also have a fully operational video surveillance recording system. At a minimum, the system must consist of cameras, video monitors, digital archiving devices and a color printer capable of producing still photos. Essentially all parts of the premises must be included in the surveillance, so site layout and design should be considered with an eye toward minimizing the number and scope of cameras required.
The surveillance system must have a one-hour battery back-up or another back-up power system, and it must notify the licensee within one hour of any failure. There must be secure facilities for storing the video equipment and certain recordings.
Producers are subject to additional requirements. Production facilities must be constructed in such a way as to enable the licensee to totally exclude the public from all production areas, including areas where composting of marijuana items occurs.
Processors are also subject to additional regulation, primarily relating to sanitation. Careful consideration of operational difficulties should be given before entering into any agreement to co-locate with an existing business. All counters, surfaces and equipment in processing facilities must be food-grade and should be designed to discourage the growth of fungi, bacteria and other microbials. Processors in the edibles business must be licensed by the Oregon Department of Agriculture and comply with the agency’s food safety regulations.
Light, Sound, Odor and Fencing
The Oregon Liquor Control Commission does not regulate light, sound or odor emanating from marijuana facilities, but requires compliance with local rules as a condition of licensing. The rules vary by jurisdiction and by type of facility. For example, in Multnomah County, lights used in indoor marijuana grows must not be visible outside the building between sunset and sunrise. Clackamas County has similar lighting standards, but also regulates according to use: Properties used for sales, production or processing all must have odor control filters; properties used for production or processing must also meet noise requirements, in addition to proposed rules that would place additional restrictions on fencing. A number of individual cities also removed temporary local bans on marijuana facilities in the 2016 election. These cities will be implementing new regulatory schemes.
Designers and business owners should ensure that these requirements are included in the specifications for any construction or tenant improvement work. A failure to comply with regulations could subject the person responsible for the facility to an enforcement action or loss of a license. Given the ever-changing regulatory environment, it is essential that every member of the construction team, including the contractor, actively tries to ensure compliance with the relevant rules and regulations.
Steven Cade is an associate in the Portland office of Williams Kastner Greene & Markley. His practice concentrates in the areas of construction law, products liability, transportation law, and commercial litigation. He also advises both insurers and insureds on insurance coverage issues. Williams Kastner publications should not be construed as legal advice.