Steven J. Hoffman, Chair
Cannabis Control Commission
101 Federal Street, Boston
RE: 935 CMR 500.000 Adult Use of Marijuana – Proposed Regulations
Dear Chair Hoffman and Members of the Cannabis Control Commission,
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association is writing to offer comments on the draft Adult Use of Marijuana regulations, 935 CMR 500. The MMA would like to express our appreciation to Commission members and staff for the extensive stakeholder process regarding these regulations. We commend the Commission for the 10 hearings held across the Commonwealth to ensure that many voices could be heard. The MMA appreciates the hard work done by the Commission to develop draft regulations within the very challenging time frame set by statute.
In order to serve the public as effectively as possible, cities and towns need effective and workable regulations governing commercial marijuana in Massachusetts. Municipal officials are on the front line in terms of implementing the new law, and thus have a responsibility to ensure that implementation is achieved in a balanced way that maximizes the benefits of the new law to residents and local economies while maximizing the protection of the general public interest and community interests, including public health and safety concerns, and possible adverse effects on residents, businesses, neighborhoods, and economic development plans. In consultation with the Massachusetts Municipal Lawyers Association, the MMA is pleased to offer comments on the proposed provisions of 935 CMR 500. Our comments are intended to accomplish these goals. We look forward to working with the Commission to ensure that a safe, workable, and effective set of regulations are in place to guide and govern this important new industry.
Municipal Role in the Licensing Process
The MMA supports a strong municipal role in the licensing process of commercial marijuana facilities. We urge you to maintain in unaltered form the language in 935 CMR 500.101 (f) and (g) that would require an applicant to provide proof of a completed Community Host Agreement and documentation detailing community outreach hearings as part of the initial application process. It is our view that this provision would help to allay community concerns that commercial facilities could be approved without adequate local input. Holding community outreach meetings would serve this purpose, ensuring that questions from the community are answered prior to licensure. We believe that these requirements would encourage commercial facilities to present plans that meet the rules and best reasonable expectations of the cities and towns in which they wish to locate, much like current zoning practices do for incoming developers. This process, if established, would have a positive effect on the relationship between the local government and the marijuana industry, creating a more effective atmosphere of trust for both parties.
The MMA also strongly supports 935 CMR 500.170, which states that all marijuana establishments "shall comply with all local rules, regulations, ordinances, and bylaws," as well as the later section clarifying that the proposed regulations should not be understood "to prohibit lawful local oversight and regulation, including fee requirements, that do not interfere with the operation of 935 CMR 500." We believe that local officials know their communities best, and that this section would lead to a more productive partnership between communities and marijuana establishments that respects the will of the voters while ensuring a robust municipal voice in regulating the new industry at the local level. A similar model was used successfully in the medical marijuana program, which allowed for safe access to medical marijuana while allaying public health and safety concerns.
Matters Needing Clarification
There are numerous areas in the revised law that remain unclear. The MMA requests that the Commission amend the proposed regulations to address the issues listed below:
1. Status of Registered Marijuana Dispensary (RMD) conversion in a city or town that has enacted a ban. According to Chapter 94G, section 3(a)(1), a city or town cannot prohibit the conversion of qualified medical marijuana treatment facilities to an adult-use or recreational establishment. Section 56(d), however, bars adult-use licenses from being granted in municipalities that have "prohibited marijuana establishments" through the process laid out in Chapter 94G. Under current statute, it is unclear which part of the law holds primacy over the other, and if a general municipal bylaw or ordinance prohibiting marijuana could be overturned by the language in section 3(a)(1). The MMA requests that the regulations make clear that a local vote under section 56(d) has primacy over the issuance of licenses under section 3(a)(1).
2. Establishing the number of required licenses to meet the 20 percent threshold. In a city or town where the number of liquor licenses does not neatly reduce to a whole number, guidelines from the Commission in determining where the number should fall would be helpful.
3. Recognition of lawfully executed moratoria. A number of cities and towns have enacted a moratorium in compliance with guidelines from the Attorney General (and being effective only until December 31, 2018 at the latest) to ensure that their bylaws and ordinances are in compliance with the regulations eventually finalized by this body. We ask the Commission to establish a standard policy or regulation governing its approach to moratoria established lawfully by local governments that would explicitly recognize their right to enact a moratorium and make clear that the Commission will not approve or review an application for a community until the expiration of existing moratoria. This issue is of utmost importance to cities and towns as they work to ensure an efficient and orderly roll out of commercial marijuana in their jurisdictions.
Social-Use and Mixed-Use Establishments
The MMA is concerned about the proposed rules governing the establishment of social- and mixed-use facilities. In previous letters, the MMA and the MMLA have expressed objection to permitting or licensing "on premise" consumption of marijuana prior to approval from the voters of a municipality at a biennial state election ballot, as laid out in Chapter 94G, section 3(b): "The city council of a city and the board of selectmen of a town shall, upon the filing with the city or town clerk of a petition (i) signed by not fewer than 10 percent of the number of voters of such city or town voting at the state election preceding the filing of the petition and (ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level, request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold." In contrast to the general licensing process, Chapter 94G offers clear intent that this process is to be "opt-in" rather than an "opt-out", with an affirmative vote being required to move forward. The proposed regulations suggest that social consumption can be approved and licensed without local electoral approval. Not only is this in apparent conflict with statute and with long-established traditions of local control, but it is also disadvantageous to "traditional" commercial marijuana establishments, which local governments can govern through the process laid out in section 3(a), rather than waiting for the next state election. The MMA urges the Commission to edit 935 CMR 500.145 to explicitly establish that social- or mixed-use facilities can only be licensed with and subsequent to an affirmative vote of the voters at a biennial election.
Beyond the process of approving (or not approving) the licensure of social- and mixed-use facilities, the MMA supports comments and recommendations from the Department of Public Health (DPH), the Executive Office of Public Safety and Security (EOPSS), and the Executive Office for Administration and Finance (EOAF), and other state officials, and urge the Commission to exercise a cautious approach to expanding the complexity and scope of these new regulations. Numerous regulatory and public safety issues arise from expansion of these categories, and local officials will be the first line of response as issues develop from these facilities. No effective means of detecting whether an individual is operating under the influence (OUI) is yet available, which will only increase the already heavy training and law enforcement burden on local police departments and drug-recognition experts. In mixed-use establishments, which will likely consist largely of small businesses such as yoga studios, bakeries, or chocolatiers (as in the case of the City of Worcester), there is little experience or training for staff or proprietors in monitoring drug use or levels of intoxication. This presents a challenging environment for local regulators and law enforcement. Additionally, while transportation plans for patrons are required for primary-use social-consumption facilities, such plans do not appear to be required for mixed use social consumption establishments. We urge the Commission to limit the scope of regulation at the present time to focus on establishing the fundamental parameters of this nascent market, while considering these expansion-related issues in the future.
The MMA also wishes to express concern with the inclusion of language that allows for direct-to- consumer delivery of marijuana products by marijuana cultivation facilities, craft marijuana cultivator cooperative facilities, marijuana product manufacturer facilities, or micro-businesses licensed as a "Delivery Only Retailers." The MMA believes that allowing direct delivery of recreational marijuana from the above-listed cultivators undermines the intent of Chapter 55 of the Acts of 2017, which prohibited marijuana cultivators and manufacturers from delivering marijuana products directly to consumers.
Should the Commission decide to retain these direct-to-consumer licenses, fundamental issues remain that must be addressed. Chief among them is the issue of revenue collection for delivery services. As the regulations stand now, there is no provision that would provide for the collection of revenue or designating the entities that are due to receive a share of that revenue. We believe that this could have the effect of undermining revenue collections by municipalities with conventional recreational facilities, and adding further turmoil to an already uncertain market. We respectfully request that you limit delivery services to those provided for in statute until the market is established and functioning.
Thank you for the opportunity to submit comments regarding the draft regulations, and to outline the impact that these regulations would have on cities and towns. This issue is of vital importance to local officials across the Commonwealth, as well as the citizens and residents they represent, and it is the MMA’s desire to see regulations developed and implemented in a deliberate way that ensures long-term stability and success. We are a willing partner and resource for you as you finish your hearings, and turn to finalizing these important regulations. If you have any questions regarding these comments, or desire further information, please do not hesitate to have your staff contact David Lakeman of the MMA staff at (617) 426-7272 at any time.
Thank you very much.
Geoffrey C. Beckwith
Executive Director & CEO
MMA letter to Cannabis Control Commission on proposed adult use of marijuana regulations
Steven J. Hoffman, Chair