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Our members are the local governments of Massachusetts and their elected and appointed leadership.
Cannabis Control Commission
(via [email protected])
Union Station
2 Washington Square
Worcester, MA 01604
Delivered electronically
Dear Members of the Cannabis Control Commission:
The Massachusetts Municipal Association (“MMA”) joins with the Massachusetts Municipal Lawyers Association (“MMLA”) in providing the following comments to the Cannabis Control Commission (“CCC”) in regard to its draft Social Consumption Regulations for 935 CMR 500.00 (“Draft Regulations”), governing on-site Social Consumption Establishments. The MMA and the MMLA sent the enclosed letter in January during the informal comment period, and this letter reiterates and incorporates many of those same concerns.
The Massachusetts Municipal Lawyers Association (“MMLA”) (formerly the City Solicitors & Town Counsel Association) is the municipal law bar association for Massachusetts. MMLA has served Massachusetts cities and towns and has provided municipal law educational opportunities to its members and public officials since 1946. MMLA members consist of attorneys whose practice includes providing legal services to cities and towns or who otherwise devote a substantial portion of their practice to the advancement of municipal law.
Jointly, the MMA and MMLA have a unique understanding of the challenges and concerns of municipal officials and the constituents they serve in light of the Draft Regulations and confusion around public or quasi-public on-site social consumption of marijuana. Of course, both organizations recognize that cities and towns may have differing opinions on marijuana social consumption establishments generally and further, that many variables may impact the law’s effect on a particular municipality. The below comments address significant apprehensions and questions related to the Draft Regulations that have been raised by a number of our members, and that will affect numerous municipalities across the Commonwealth. Moreover, while some municipalities seem genuinely excited to welcome social consumption establishments, the lack of clarity as to municipal oversight has caused great confusion and leaves them questioning whether they really ought to opt-in.
Though the below comments are divided by topic, with appropriate designations to specific topics of concern, we note that as drafted, the Draft Regulations appear to remove significant regulatory powers from municipal control. Given the likely municipal impacts as well as public health considerations, we suggest, as a matter of utmost import, that the CCC make clear the requirement that all social consumption licensees must obtain a host community agreement, waiver, or some other form of express approval, from the municipality where social consumption is intended, but expressly state that municipalities may regulate and restrict how, where and when these businesses operate.
The MMLA and MMA greatly appreciate the CCC’s solicitation of input in this regard and welcome the opportunity to engage with the CCC on matters of material importance to cities and towns in Massachusetts.
Supplemental Social Consumption Establishment Licenses
Municipal leaders know their communities best, understanding unique needs and challenges when it comes to businesses and residents. While we acknowledge that 935 CMR 500.101(3)(i)(3) states that social consumption establishments must submit an attestation that they are in compliance with local laws, there does not appear to be a corresponding provision requiring municipal confirmation of the same. By not expressly requiring local municipal input, the supplemental licensing is done blindly without understanding of the dynamics at play at each space. What may make a location appropriate for a delivery operator license is vastly different from what may make an appropriate social consumption location. We urge the CCC to insert language that gives substantial deference to municipal input and explicitly affirms the authority of municipalities to regulate the location and timing of these licensees.
Marijuana Event Organizer Licenses
Equally concerning is the language in 935 CMR 500.050(6)((e)(3)(b) which only would require a Marijuana Event Organizer to obtain a Host Community Agreement with the municipality within which “its Principle Place of Business” is located, not where an event is occurring. A “principal place of business” is, by definition, the specific physical location where a majority of the businesses administrative and management functions are performed. Similar to the concern raised above, while 935 CMR 500.050(6)((e)(3)(c) does state that these licensees must obtain local approval, there is not a mandate that the licensees submit or receive separate verification from each municipality where the event is to be located. Simply recognizing that a municipality may issue a cease and desist order (per 935 CMR 500.050(6)(3e)(3)(o) and (q)) does nothing to ensure the health and safety of residents and consumers. Rather, mandating that licensees submit written proof of municipal approval in advance would better serve the public and help to prevent hazardous and unsafe conditions.
If a host community agreement is not required for those municipalities where events will actually occur, they should, at the very least, be required to sign off on the Event Permit as they have an intimate understanding of the conditions within their borders and are therefore better positioned to opine on such matters. We urge the CCC to require an Event Organizer to obtain a host community agreement with or express written approval in advance from every community in which they organize an event.
Finally, under 935 CMR 500.050(6)(i) it remains unclear whether the hosting community would collect the cannabis sales tax, or if the event organizer’s Principle Place of Business municipality would collect the sales tax. Given the liability, costs of potential emergency response and other potential costs to the community, we suggest the community where the event takes place should collect the tax.
Hospitality On-site Consumption Licenses
The Hospitality On-site Consumption Licenses seem to be available for new or existing non-cannabis businesses to host on-site consumption events in partnership with qualifying Marijuana Establishments in designated consumption areas. However it is not clear exactly which type of non-cannabis business partners are contemplated here.
Consumption would be prohibited in the same locations and at the same times as a noncannabis business serves tobacco or alcohol. Indoor smoking consumption areas would be separated from the existing non-cannabis business’ operations by either walls or other barriers. To the extent that this would include businesses such as gyms where consumers would have access to dangerous equipment and heavy machinery and restaurants where perishable infused food would be available, the Draft Regulations fall short of addressing key safety measures. Likewise, relying on a QR code (935 CMR 500.141(2)(b)) to provide crucial information about dosage and the projected duration of product use does little. This is especially dangerous when, for example, consumers will then have access to heavy gym equipment and weights. We urge the CCC to give more thought to these practical and foreseeable safety concerns in an effort to cautiously regulate social consumption.
Public Safety
While the Draft Regulations attempt to take some safety procedures into account, they fail to provide a clear and comprehensive regulatory scheme, leaving many open ended questions and loop holes.
The Draft Regulations require Agents (i.e., employees) to complete a “Social Consumption Core Curriculum” prior to working, with training including, among other requirements, strategies for de-escalating potentially dangerous situations, procedures for attending to medical or public safety emergencies, procedures for checking identification, and procedures for recognizing signs of impairment from alcohol or cannabis use. However, it is not transparent how policies put in place to help monitor over-consumption and medical concerns will be implemented and will affect local municipalities and emergency responders, who will undoubtedly also need to undergo such training efforts. While a Social Consumption Establishment is required to have emergency response and “cooling down” procedures, such procedures are not clearly laid out, and thus could vary by licensee, even if within the same host community; likewise, there is not any requirement that local public officials comment on or approve “cool down” or “emergency response” procedures. The Draft Regulations also do not state whether there will be statewide training and/or procedures for such issues.
Additionally, we have concerns about the “cooling down” areas, how they will be monitored, how monitors will be trained and what relationship and liability local emergency responders may have related to their function. Specifically, the Draft Regulations do not detail when a customer may be required to relocate to a “cooling down” area, what signs an agent may rely on to put them there, what documentation will be required, and how and when emergency responders will be contacted. We also stress that the CCC should reconsider expanding the hours from the current 8AM to 9PM hours to 7AM to 12AM (935 CMR 500.141(3)(f)) given the aforementioned public health and safety concerns raised herein.
Social consumption has the potential to dramatically increase the need for first responders, particularly at large one-time events, further stressing already limited personnel and resources. We suggest the CCC discuss emergency response and public safety concerns with local officials and the Massachusetts Chiefs of Police Association to better understand public safety needs. As such, we also suggest that the Draft Regulations include more detailed requirements for emergency response, event safety coordination, cooling down procedures, and incident reporting protocols as well as trainings on these issues for first responders and others. Given the cost and scope, licensees should be required to offset costs associated with these services.
Indoor and Outdoor Smoking Waivers
Finally, under the Draft Regulations, the existing prohibition on indoor smoking would be removed, as would the waiver requirement and local determination needed to permit outdoor smoking. Again, we suggest that the CCC exercise caution before removing existing requirements that the Social Consumption Establishments comply with the municipality’s applicable local rules and regulations pertaining to smoking and, among other mandates, obtain a determination from the host community that outdoor smoking would not pose an unacceptable risk to public health, safety or welfare greater than if consumption were to occur indoors. Protecting the public through health and safety regulations is a key function of municipal government. Removing this authority would be extremely detrimental and likely lead to roll-backs in other essential health and safety areas.
The MMLA and MMA acknowledge the extraordinary task that the CCC is faced with in implementing social consumption regulations. To that end, our organizations are committed to assisting the CCC in developing regulations to ensure that growth in the cannabis industry is balanced against the public health and safety concerns of host municipalities, their local first responders, and their citizens.
If you have questions or desire additional comment, please contact MMA Legislative and Policy Counsel Ali DiMatteo at [email protected], Nicole Costanzo of MMLA at [email protected] and Shawn Williams of MMLA at [email protected].
Thank you for your time and consideration of the above comments and recommendations.
Sincerely,
Adam Chapdelaine
Executive Director
Massachusetts Municipal Association
Shawn Williams, Esq.
President
Massachusetts Municipal Lawyers Association