Joseph Molitor believed his legal woes were over.
He was cleared of drug charges filed in 2019, after authorities mistook legal hemp flower he sells for marijuana, freeing the former Old Forge man to resume operating the CBD Shop of Northeastern Pennsylvania. He restarted the business in West Pittston, Luzerne County, as online-only, selling hemp and various cannabidiol-infused, or CBD, products without fear of arrest — or so he thought.
On May 27, West Pittston police seized $1,500 worth of product after a police officer responding to a request for an ambulance at Molitor’s home noticed a smell of purported marijuana, which remains illegal in Pennsylvania except for verified medical users.
Molitor, 49, said he has lab tests that prove all the products, which include hemp flower and edible products, have less than 0.3% tetrahydrocannabinol, or THC, which makes them legal. THC is the main psychoactive compound in marijuana. He says police refused to examine the documents.
The case remains under investigation and no charges have been filed. Molitor said the seizure has caused him financial difficulties.
“They took $1,500 worth of product I’m sure I’ll never get back,” he said. “This is not a hobby. This is my livelihood.”
Molitor’s case illustrates the dilemma law enforcement and hemp sellers have faced since the 2018 Farm Bill legalized hemp, attorneys who specialize in cannabis law said.
The problem is hemp looks and smells like marijuana. The only definitive way to tell them apart is to test for the THC level. Marijuana has a level of 0.5% or higher.
There are no tests readily available that give immediate results, however, said attorney William Roark of Lansdale, chairman of the Pennsylvania Bar Association’s medical marijuana and hemp law committee. That’s led to some people being wrongly charged.
“The law is evolving … however, there is still a good amount of confusion around this,” Roark said. “Frankly, it’s the science I think that needs to catch up … How is it that we’re going to be able to determine on a relatively quick basis whether or not this product is legal or not?”
Locally, Molitor is one of three people charged in hemp-related cases. He was arrested after a Scranton postal employee thought they smelled marijuana coming from a package containing hemp flower Molitor mailed to a customer. Charges were dropped after subsequent testing showed the THC level was 0.34%. While the level was over the limit, it was within the margin of error for the testing method.
The other case was filed in Wyoming County Court against Hunter Smetana and Colby Kluk, owners of 3Buds LLC, a hemp and CBD dispensary with several locations including Scranton, after a Tunkhannock police officer found purported marijuana — which Smetana and Kluk claim was hemp — during a March 2020 traffic stop. That case is scheduled for trial in September.
Most hemp-related arrests occurred in the early days after the Farm Bill passed, said attorney Patrick Nightingale, director of the Pittsburgh chapter of the National Organization for the Reform of Marijuana Laws. They have since subsided as authorities become more knowledgeable about the act.
“Law enforcement seems to understand that, yes, there are legal products that look exactly like marijuana and that’s just something that they have to deal with,” Nightingale said.
The latest case involving Molitor began after he called an ambulance for his wife. An officer obtained a search warrant after he said he smelled marijuana and saw items commonly used to package the drug. Police seized 19 items, which were sent to the state police lab for testing.
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Nightingale is not involved in Molitor’s case but said Molitor’s description of what happened is troubling and could potentially open the department up to civil liability. He noted the odor of marijuana is no longer considered probable cause in criminal cases.
“The mere notion that we’re going to take something that we’re not sure whether or not it’s legal, we’re going to seize it, test it and then maybe return it to you, that to me is not a good way of moving forward with this type of investigation,” Nightingale said.
West Pittston Police Chief Michael Turner, who was among the officers who served the warrant, defended the department’s handling of the case, saying he had an obligation to investigate.
“At the end of the day, my job is to make sure he is abiding by all laws,” Turner said. “We have to make sure our communities are safe.”
Molitor said his business is no different than any others that sell CBD-infused products, which are readily available at multiple retail outlets, including many convenience stores. He suspects he was targeted because his is a home-based business.
Molitor said he understands police could not simply take his word. They had an obligation to evaluate evidence before seizing his product and refused to do that, he said.
“I don’t know where the communication breakdown is, but I’m sick and tired of operating a legal business and going through this,” he said. “How many times do you make the same mistake? You can’t just keep violating people’s rights.”