The Marijuana Act: Overview of the Municipal Role Presented by Brandon H. Moss, Esquire Murphy, Hesse, Toomey & Lehane, LLP March 10, 2017 979320 1 The FEDERAL Law The federal Controlled Substances Act of 1970 (“CSA”) (21 U.S.C. 801 et seq.) regulates the use, distribution, possession, manufacture and importation of certain drugs. Marijuana remains a Schedule I drug under the CSA. 979320 2 The FEDERAL Law (continued) “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medical supervised treatment.” Gonzales v. Raich, 545 U.S. 1, 14- 15 (2005) (citing 21 U.S.C. § 812(b)(1)). “By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense,” with an exception not applicable here. See Raich, 545 U.S. at 14; see also 21 U.S.C. § 812(c). 979320 3 1
Massachusetts is not in unchartered territory Other states legalizing recreational marijuana establishments: Colorado and Washington (2012 election); Oregon and Alaska (2014 election); and California, Maine, Massachusetts and Nevada (2016 election). District of Columbia (2014 election) voted to legalize marijuana possession/cultivation for personal recreational use (not commercial production/sale). 979320 4 Massachusetts and its Ballot Questions 2008 State Election: Question 2 (“Massachusetts Sensible Marijuana Policy Initiative”). 2012 State Election: Question 3 (“Massachusetts Medical Marijuana Initiative”). 2016 State Election: Question 4 (“An Initiative Petition for a Law Relative to the Regulation and Taxation of Marijuana”). 979320 5 Ballot Question 2 (2008 Election) Eliminated criminal penalties for possession of 1 ounce or less, instead using civil penalties. The $100 civil penalty went to the municipality where the offense occurred. No Criminal Offender Record Information reports for covered violations. The 2008 ballot question did not affect penalties for cultivating, trafficking and selling marijuana, or operating under the influence. Minors were subject to additional penalties ( e.g. , maximum $1,000 fine, educational program, community service, and parental notification). 979320 6 2
Ballot Question 2 (2008 Election) (continued) Local action was permitted under the 2008 ballot question in connection with the public use of marijuana. In particular, municipalities were expressly authorized to adopt bylaws and ordinances prohibiting or regulating marijuana or tetrahydrocannabinol (THC) in public places and to provide additional penalties for public use. Subsequently codified as Chapter 387 of the Acts of 2009, and resulting in M.G.L. c. 94C, Section 32L through 32N. 979320 7 Ballot Question 2 (2012 Election) The 2012 ballot question: Authorized the “medical use of marijuana” – this included acquiring, cultivating, possessing, processing, transferring, transporting, selling, distributing, dispensing or administering marijuana to aid “qualifying patients in the treatment of debilitating medical conditions, or the symptoms thereof.” Established medical marijuana treatment centers (or registered marijuana dispensaries), which are not-for- entity entities, registered with the Department of Public Health, and involved with the medical use of marijuana. 979320 8 Ballot Question 2 (2012 Election) (continued) The 2012 ballot question: Limited the medical use of marijuana to qualifying patients and their caregivers. Eliminated state prosecution and criminal penalties for permitted conduct. Contemplated hardship cultivation registrations. Did not require accommodation of on-site medical use in any place of employment, school bus, school grounds, youth center, or correctional facility, or the smoking of marijuana for medical purposes in any public place. Did not affect Massachusetts laws applicable to marijuana for non-medical use. 979320 9 3
Ballot Question 2 (2012 Election) (continued) The 2012 ballot question was codified as Chapter 369 of the Acts of 2012. In 2013, the Department of Public Health (“DPH”) adopted 105 CMR 725.000, “Implementation of an Act for the Humanitarian Medical Use of Marijuana.” 979320 10 Ballot Question 2 (2012 Election) (continued) Under the DPH regulations: Registered marijuana dispensaries (“RMDs”) must comply with local siting requirements. In the absence of local requirements, no RMD may be 500 feet from: A school; A daycare center; and Any facility in which children commonly congregate. The 500’ buffer zone is measured by a straight line between the facility and the closest point of the RMD. 979320 11 Ballot Question 2 (2012 Election) (continued) Under the DPH regulations, RMDs and registered persons must comply with applicable local rules, regulations, bylaws and ordinances. The DPH regulations do not require involvement by municipalities and local boards of health in regulating RMDs, qualifying patients with hardship cultivation registrations, or other components of marijuana for medical use. Lawful local oversight and regulations, such as fee requirements, that did not conflict with or impede 105 CMR 725.000 are permitted. 979320 12 4
Ballot Question 2 (2012 Election) (continued) The result: Zoning moratoriums; Mitigation/community benefit agreements; General ordinances/bylaws; and Zoning ordinances/bylaws (such as special permit requirements, site plan requirements, and/or zoning districts where RMDs could be located). 979320 13 And…FINALLY…Ballot Question 4 (2016 Election) Question 4 at the 2016 state election essentially legalized marijuana for non-medical uses, with certain prohibitions and limitations. Question 4 passed by a margin of 53.66%-46.34%. Question 4 had an effective date of December 15, 2016. Question 4 is codified as Chapter 334 of the Acts of 2016. Portions of Question 4 were amended by Chapter 351 of the Acts of 2016 – this created a 6 month extension to deadlines under Question 4. 979320 14 There is…or rather, will be…a new sheriff in town… The Cannabis Control Commission (“CCC”) is charged with the supervision and regulation of marijuana establishments. 3 Members: 1 Commissioner + 2 Associate Commissioners (appointed by Massachusetts State Treasurer). A maximum of 2 Members in the same political party. The Commissioner serves the same term as the Massachusetts State Treasurer. The Associate Commissioners serve 4 year terms. 979320 15 5
There is…or rather, will be…a new sheriff in town…(continued) The CCC must enact certain regulations to administer, clarify and enforce laws involving the regulation and licensing of marijuana establishments. There are 15 subjects that the CCC’s regulations must address, including: Initial and renewal licenses for marijuana establishments; Fees for license applications, and for initial/renewal licenses for marijuana establishments (up to the maximum permitted under Chapter 94G); 979320 16 There is…or rather, will be…a new sheriff in town…(continued) Qualifications to be licensed and minimum employment standards in connection with operating marijuana establishments; Participation in the regulated marijuana industry by individuals “disproportionately harmed” from marijuana prohibition and enforcement; Security requirements; Preventing sales to individuals under 21 years old; Record keeping and tracking marijuana and marijuana products; 979320 17 There is…or rather, will be…a new sheriff in town…(continued) Health and safety standards; Packaging requirements; Labeling requirements; Requirements for testing of random samples; Safe disposal requirements; 979320 18 6
There is…or rather, will be…a new sheriff in town…(continued) Reasonable restrictions for signs, marketing, displays and advertising; License transfers; and Enforcement; fee and penalty collection; suspending or terminating licenses; and appeals of civil penalties or licensing actions. 979320 19 There is…or rather, will be…a new sheriff in town…(continued) Subjects that the CCC’s regulations may, but are not required to, address: Additional types/classes of licenses: “Limited” activities – cultivation, processing, manufacturing, possession, storage, or delivery; On-premises consumption; Special events consumption in limited areas; or Scientific research or education. Regulating cultivation, processing, distribution, and sale of hemp by marijuana establishments. 979320 20 There is…or rather, will be…a new sheriff in town…(continued) The CCC, if an analysis has occurred, can restrict the amount of marijuana cultivated in order to limit illicit markets for marijuana. If the total amount of marijuana is restricted, the CCC must reconsider the decision biannually and the limit must ensure a sufficient supply of marijuana and marijuana products. The limit cannot be imposed if importing/exporting marijuana to/from Massachusetts is not prohibited by federal law. 979320 21 7
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