Local control questions surround recreational marijuana

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Requiring a local license for recreational marijuana stores, on-site consumption, and the future of both existing and provisionally approved medical marijuana facilities are among the questions local officials raised at a half-day forum about the state’s new marijuana law on Oct. 3 in Worcester.
 
While the panelists offered their expertise and answers at the forum, co-sponsored by the Massachusetts Municipal Lawyers Association and the MMA, they said more than a few outstanding questions and clarifications will need to be addressed by the regulations the Cannabis Control Commission is due to enact by next March 15.
 
For instance, pointing out that recreational marijuana business licenses will be issued by the state, one attendee asked what the rights of a city or town will be to control the operating entity within their community, as municipalities can do with local liquor license approval.
 
Panelist George Hall, an attorney with Anderson & Krieger who serves as counsel for three Massachusetts towns, said that ideally the CCC would only license an entity that has reached a host agreement with the municipality, but the question hasn’t specifically been addressed yet.
 
Margaret Hurley, director of the Attorney General’s Municipal Law Unit, concurred.
 
“It’s unclear whether a community will have the power to require a local license for these facilities,” Hurley said. “What is clear is that you have your existing home rule powers to adopt zoning bylaws or general bylaws, and you also have the power and requirement to negotiate a host community agreement. Those are the two areas I see for control.”
 
Jeffrey Bagg, project manager at the Central Massachusetts Regional Planning Commission, added that it will be “critical” for the CCC to clarify at what point in the license application process the host community agreement, mandated by the new law, must be in place.
 
Some proponents are interpreting Section 3B of the law as saying that a city or town could allow on-site consumption, such as in cannabis cafés, without any legislative or ballot action. But Hurley said she reads the law as prohibiting on-site consumption until the municipality passes a ballot question that expressly allows it. She suggested that cities and towns could adopt an ordinance or bylaw regarding on-site consumption, and that wouldn’t be in conflict with the state law.
 
Bagg pointed out that the law says the CCC will establish other licenses, such as those for special events where marijuana may be consumed. That raises a host of questions, such as whether these events must create a cordoned off area for on-site consumption, like a beer garden, or whether it would be allowed throughout the entirety of the event’s area.
 
“I’m cognizant that boards of selectmen sit for hours issuing one-day liquor licenses,” he said. “They have a lot of information at their disposal before they approve. This law kicks that to the CCC.”
 
Hall said he interprets the recreational marijuana law as protecting the ability of any currently operating medical marijuana facility and those that have received provisional approval from the Department of Public Health to also become a recreational marijuana retailer or facility, even in cases where a city or town has voted to “opt-out,” although he said the statute is “not very clear” on that point.
 
One attendee asked whether host agreements with medical marijuana facilities that waive their right to convert to recreational marijuana business could still be enforced.
 
“Your guess is as good as mine,” Hall replied. “There are arguments to be made on both sides of that question. As a municipal lawyer, I wouldn’t have any trouble advocating for the position that it’s a binding agreement, but I can see how the establishment could point to legislation as preempting or superseding that requirement. We’ll have to see how the courts sort that out.”
 
Recreational marijuana was legalized in Massachusetts by the passage of a ballot question last November, which made personal use and home growth legal as of last Dec. 15. The CCC is charged with crafting regulations governing this new area of commerce and approving licenses for businesses that seek to grow, test, manufacture or sell marijuana products.