You Asked, We Answered: Vermont's Recreational Pot Law

Jun 29, 2018

Credit Bychykhin_Olexandr / iStock.

On July 1, Vermont's Act 86 makes it legal for adults 21+ to possess an ounce of marijuana and cultivate a small number of marijuana plants under state law.

Read Act 86 here.

But there are specific and sometimes confusing guidelines under the law that determine how people can use cannabis in the state. So we asked Vermonters what questions they have about Act 86.

Here are the most frequently asked questions we received (as well as our best attempt to get a clear answer!).

Where is it legal to use (smoke, ingest, etc.) marijuana?

You CAN use marijuana:

  • In your own home
  • In your rented apartment if your landlord OKs it
  • Outside, but not in public spaces

You CANNOT use marijuana:

  • In your rented apartment if your landlord prohibits you from doing so
  • In public spaces
  • While operating a motor vehicle or while a passenger in a motor vehicle
  • On or near a school campus, daycare or after-school facility, even after hours

Can you smoke in public places?

Nope.

According to Act 86 a “public place” is defined as “any street, alley, park, sidewalk, public building other than individual dwellings, any place of public accommodation as defined in 9 V.S.A. § 4501, and any place where the use or possession of a lighted tobacco product, tobacco product, or tobacco substitute as defined in 7 V.S.A. § 1001 is prohibited by law.”

Church street in Burlington qualifies as a public place, which means use of marijuana is not allowed.
Credit vermontalm / iStock

Be prepared for a civil penalty on this one if you break the new rules: It’s a fine of up to $100 your first time, $200 your second and $500 for all further offenses.

How will this fit into existing "can't smoke here" rules we have now? For example: Church Street.

Lawmakers said they tried to parallel the rules around tobacco use when crafting the new marijuana rules.

Will personal use on private patios of owner-occupied condominiums be legal?

Depends. If you have a condo board or governing body for your building, you should check to see if there are building-specific rules.

How many plants are legal?

Under Act 86, each “dwelling unit” is allowed four immature plants and up to two mature (flowering) plants at one time.

What exactly is a "dwelling unit"? According to Act 86, a “dwelling unit” is “a building or the part of a building that is used as a primary home, residence, or sleeping place by one or more persons who maintain a household.”

So if you live with two roommates in an apartment, the law allows the three of you collectively to have two mature, flowering marijuana plants and four immature plants at your home.

An immature cannabis plant. Each dwelling unit is allowed four immature plants and two mature plants.
Credit Nastasic / iStock

If I grow the four plants, then the harvest will be over 1 ounce for legal possession. How is one to grow, harvest and store the crop legally?

The bill had this predicament in mind, according to lawmakers: You’re legally allowed to keep whatever your two (mature) plants produce if you keep the marijuana in a secure place in your home or wherever it was originally grown.

If you’re growing your own marijuana: You’re still not allowed to leave your house with more than 1 ounce, but you can keep what your plants grow in excess of 1 ounce securely at home.

If you’re not growing your own: You’re not allowed to possess more than 1 ounce of marijuana or 5 grams of hashish.

If your mature plant produces 2 or 3 ounces, can you keep it? The law states 1 ounce only.

Exactly. So as we just outlined — if each of your two legal, mature, flowering marijuana plants produced 2 ounces, that would leave you with 4 ounces at your home.

As long as you store your 4 ounces of marijuana in a secure place at your home (“dwelling unit”) you’re in the clear under Act 86.

Just make sure to never leave the house with more than an ounce and you’re complying with the new law.

Clarification on amounts and sales/taxes would be great. Allowing me two mature plants that yield 3 ounces each ... can I possess that much dried product legally? And can I sell it? (I’d rather not be the first to get busted at a farmers market.)

So we got to the first part of this question already, but it’s the second we should clear up once and for good:

Act 86 deals with the possession of marijuana — not sale.

So if you head to the farmers market and sell the 1 ounce of homegrown marijuana you're allowed to leave the house with (because as we just learned, you can’t leave the house with more than an ounce), you’re committing a crime punishable by up to two years in prison and a fine of up to $10,000.

There is a nuance about gifting worth checking out below, though.

The Governor’s Marijuana Advisory Commission is expected to report on a system for Vermont to legalize and license the marijuana market by Dec. 15, 2018.

Can I grow plants outdoors?

 

Yes, as long as by “outside” you mean an enclosed location that can only be accessed by people age 21 and over and isn’t visible to the general public.

So you CAN grow your six plants (two mature, flowering plants and four immature plants) outside, if:

  • They’re in an enclosure screened from public view
  • Access is limited to those 21 and over who have permission from the cultivator

Like with using marijuana in public, you’re in for a hefty civil penalty if you break the new rules: It’s a fine of up to $100 your first offense, $200 for your second and $500 for all further offenses.

Secure and hidden from public view are key.
Credit ArchonCodex / iStock

The law specifies that you need to have your plants in a contained area, but nothing says what the law means by "contained." Is a greenhouse secure enough? Is a grow tent on your back porch? Does it need to be under lock and key?

The bill isn’t clear. The goal is to avoid having people under 21 gain access to the plants (or to your harvested marijuana). So on a personal level, whatever you can do to secure your plants is a step in the right direction.

We asked Tim Fair, a Burlington-based lawyer focused on the Vermont cannabis industry. Among the things Fair suggested:

  • A private security fence
  • A “no trespassing” sign
  • Locked access

This is a statewide issue that will likely get taken to the state Supreme Court and hammered out.  Stay tuned. Until then, keep those under 21 away from plants.

How can you legally obtain marijuana seeds or plants?

That’s a hard one.

Seeds:

According to Kendall Smith of White River Growpro, seeds are available online (as birdseed or decoration), but the legality of ordering them and having them mailed to you is grey at best.

Marijuana is still illegal at a federal level so getting things sent to you from out of state or via the USPS is a violation of federal law.

Clones:

A clone is a cutting from a female plant that can sprout roots and be replanted as a new plant of its own.

July 1 celebrations or events may include genetics exchanges for those interested in swapping plants.

As Tim Fair, the Burlington-based lawyer focused on the Vermont cannabis industry, notes, neighboring states have markets going online July 1.

But Fair says once you cross a state line, “you have a greater liability in terms of federal law."

What about the possession of alternate forms of cannabis, i.e. tinctures, edibles, concentrates? [Will those be] legal to possess?

With the exception of anything that requires the use of butane or hexane to do chemical extraction, you’re allowed to use marijuana to make other items.

The thing to note here is it’s hard to tell how much marijuana is in a pot brownie. So if you get stopped, an officer cannot easily tell if you and your container of pot brownies are in violation of the 1 ounce rule.

According to Adam Silverman, public information officer for the Vermont State Police, “currently the state forensic lab lacks the technical capability to perform that type of analysis.”

But Silverman said, “if the need ever arose, DPS [Department of Public Safety] would make arrangements with an out-of-state lab to perform testing on a case-by-case basis.”

Are there limits? Can I make [them] at home, sell or purchase?

You still have to stay within the limits of what you’re allowed to possess under the law. So you’re allowed to travel with an ounce within Vermont, and store at home what you make from the plants you grow.

When it comes to selling or purchasing —

Selling is still illegal.

Can I sell legal miscellaneous items and give marijuana away free with purchase?

So what you’re referring to here is also known as the “gift economy” and it got big in Washington, D.C. after the city legalized use of marijuana but had no clear framework in place for buying or selling it.

As Tim Fair, a Burlington-based lawyer focused on the Vermont cannabis industry, notes, that would probably fall under what’s allowed with Act 86 as long as you’re under the 1 ounce amount.

That said, there’s a tremendous amount of ambiguity which could result in issues like this one being brought before the Vermont Supreme Court.

The one thing to be sure to avoid is allowing people under 21 to gain access: It’s a criminal act to dispense or enable a person under 21 access to marijuana in the state of Vermont under Act 86 — regardless of if you’re selling or gifting. Penalties can be as steep as five years in jail and up to $10,000 in fines.

Given that the act has only put forth provisions for personal growth and consumption of marijuana but does not speak to the sale of marijuana, have any police departments released statements on how they will handle personal sales? For example, if a person has grown their own crop and then sells amounts beneath the allowed amount to friends?

Earlier this month, the Vermont State Police released a training bulletin on Act 86.

On page one it notes: “knowingly and unlawfully selling marijuana remains a criminal offense under 18 V.S.A § 4230(b)

So, no. Don’t sell it. It’s illegal.

Can I gift pot to a friend?

If your friend is 21 and over and the amount you're gifting is an ounce or less — then yes.

Gifting is technically OK.
Credit Povareshka / iStock

Can my friend store and grow my two plants on my behalf? Could they perform this service for several people?

It really depends. As long as your friend’s dwelling unit only has two mature plants and four immature plants at any given time, the law does not clearly prohibit your friend from adopting your plants or storing them on your behalf. It doesn’t add to the total amount your friend can have in his or her dwelling unit, though.

So if your landlord says no to your dream of growing your own on your back porch, but your friend has a fenced-in, locked backyard free of anyone under 21 and is willing, Act 86 doesn’t explicitly say that your friend can’t adopt your plants.

However, that would mean that anything harvested from those plants needs to be stored at your friend’s home. You’d only be able to carry with you an ounce at a time and you would not be able to move the excess marijuana your plant produced back to your home. You can only posessess 1 ounce at your home.

I'm not familiar with any cannabis laws, so if a friend in another legal state wanted to send me edibles/oils/etc., could they do so?

This is akin to the mailing seeds issue: marijuana is still illegal at a federal level so getting things mailed to you from out of state, (even a state where it’s legal to buy, sell and/or use marijuana) or via the USPS is a violation of federal law.