Conference committee still negotiating on marijuana bill

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After a long series of public hearings and internal meetings over the spring and early summer, the Joint Committee on Marijuana Policy was unable to reach agreement on a single piece of legislation to make reforms to the recreational marijuana law that was passed by voters last November.
Instead, House and Senate members of the committee produced two very different bills, which were quickly passed by each chamber in June. The two bills now sit in a six-member House-Senate conference committee that is having difficulty working out the substantial differences.
The two major areas of disagreement between the bills are the tax rate and the method of local control.
The House bill would set a total tax rate on recreational marijuana products of 28 percent, while the Senate bill retains the original rate of 12 percent (3.75 percent on marijuana sales in addition to the state’s 6.25 percent sales tax, plus a local-option tax of up to 2 percent).
The 12 percent rate would be among the lowest in the nation, with only Maine being lower at 10 percent. The House rate would put Massachusetts in the middle of eight states that have legalized recreational marijuana, and below several “first-wave” states such as Washington and Colorado, which tax at 37 percent and more than 25 percent, respectively.
Regarding local control, the House bill would allow cities and towns to opt out by a vote of the local legislative body, while the Senate bill maintains language from the original ballot question, which requires cities and towns to pass a ballot question at a regular municipal election in order to ban recreational marijuana businesses or to set the number at less than 20 percent of the number of liquor store permits in the community.
Under the law approved in November, cities and towns are deemed to have accepted the law unless there is a local vote. The MMA has urged the Legislature to grant cities and towns the ability to opt out via a vote of the local legislative body – town meeting in towns, or city or town council, with the approval of the mayor, in city forms of government.
The MMA argues that the process in the House bill is consistent with the full and open process used at the local level for all major decisions. In a town, opting out would require an affirmative vote of the board of selectman and town meeting, a process that is clear in the legislation. For the 259 towns with an open town meeting, all registered voters are welcome to participate in the legislative body. For the 36 towns with representative town meeting, the legislative body includes approximately 150 to 250 residents who have been elected on a precinct basis. In cities, these decisions would be made by locally elected representatives of the people, who are directly accountable to voters.
The local control issue has been the subject of numerous misconceptions during the course of the debate, with media outlets repeatedly – and inaccurately – reporting that, under the House bill, a board of selectmen could ban marijuana in towns. These decisions clearly would not be made by only a handful of people, as has been asserted by the originators of Question 4, the ballot question that legalized recreational marijuana.
News accounts also fail to point out that it is the state, not cities and towns, that will be awarding licenses to businesses to grow, test, manufacture or sell marijuana products for recreational use, thereby limiting the extent to which communities may act and the timeframe within which to do so. Once licenses have been granted, they may not be rescinded.
Media outlets have also reported that there has been a rush by cities and towns to “opt out” of the law, while the MMA’s analysis shows that only about 30 cities and towns have voted to opt out, with the majority being cities and towns where voters rejected Question 4.
About 80 cities and towns have taken a measured approach to the new law and adopted a local moratorium. This gives local officials the time to take the pulse of residents on zoning and siting issues and to come back later with recommendations. A moratorium is also intended to give cities and towns adequate time to review the Legislature’s expected changes to the law and the regulations that will follow.
The stated intent of the 2016 marijuana act was to “normalize” the marijuana industry; yet virtually no other industry is able to bypass the local decision-making bodies when seeking approval to locate in a city or town. The law in its original form makes it impossible for city councils or town meetings to make these zoning decisions, as they are able to do with any other business.
Under Massachusetts law, however, decisions on zoning and commercial activity are inherent in the duties of town meetings, town councils and city councils. The MMA argues that the language of the ballot question creates a unique exception in the law to allow the commercial marijuana industry to circumvent the municipal decision-making process that shapes all other business activity.
Under the recreational marijuana law in its current form, personal use of marijuana and home growth became legal last Dec. 15. On Dec. 30, 2016, the Legislature enacted a six-month delay for the other deadlines in Question 4, which means the governor is now required to appoint a new Cannabis Advisory Board by Aug. 1, and the treasurer is required to appoint a Cannabis Control Commission by Sept. 1.
The CCC’s deadline for promulgating regulations is March 15, 2018, and the commission is due to begin accepting applications by April 1, 2018 (before most towns will hold their spring town meetings).
If the CCC has not promulgated regulations by June 1, 2018, then existing medical marijuana dispensaries will be authorized to sell recreational marijuana without a regulatory structure in place. It is unclear whether the law preempts any community host agreement that prohibits a registered marijuana dispensary from selling recreational marijuana.
The marijuana conference committee is comprised of House majority leader Ron Mariano; Rep. Mark Cusack, House chair of the Joint Committee on Marijuana Policy; Rep. Hannah Kane, a member of the Joint Committee on Marijuana Policy; Sen. Patricia Jehlen, Senate chair of the Joint Committee on Marijuana Policy; Sen. William Brownsberger, and Sen. Richard Ross.
The committee did not meet its self-imposed deadline of June 30 to pass a bill, in order to give the state a year to get regulations and the regulatory structure in place before retail sales begin next July. As The Beacon went to press, the committee was still working to come to an agreement on a compromise bill.