Looking Through the Haze of the Nonmedical Marijuana Law In Massachusetts
Everyone has already heard that Massachusetts citizens voted to legalize nonmedical marijuana, often referred to as recreational marijuana, and now set forth in Chapter 94G of the General Laws. What legalization means, however, has been a little hazy. This article sets forth an outline of what legalized nonmedical marijuana in Massachusetts means to employers, businesses interested in joining the cannabis industry, municipalities, and everyone else. The focus is on the state law aspects of legalization as the laws stand today because Legislators have stated that they are open to changing some provisions of the law, and they have already pushed back the timeframes in the new law by six months. Additionally, marijuana is still an illegal drug under Federal law.
First, the laws are written in a manner that discourages public consumption but allows significant freedoms for those interested in consuming marijuana privately. Public consumption is restricted under the new law, but not illegal. Any person who consumes marijuana in a public place or smokes marijuana where smoking tobacco is prohibited is subject to a civil penalty of $100 or less. Additionally, marijuana sales continue to be illegal until a licensed dispensary is open. Home grow is the acceptable method for obtaining marijuana at this juncture — adults may grow up to six marijuana plants in their home or up to twelve plants if there are two or more adults in the home. Subject to some restrictions, such as possession in a school or open possession in a vehicle, it is also fully legal for adults to possess up to one ounce of marijuana outside of their homes.
Second, the law likely affects employment matters with the contours yet to be determined. Employers can still prohibit employees from consuming or being under the influence of nonmedical marijuana during working hours. It is unlikely, however, that an employer can make hiring decisions based on personal marijuana use unless such use had an effect on an employee’s performance. For adults over 21, marijuana is legal just like alcohol under state law, and until the courts provide additional guidance, employers should treat marijuana use the same as they would treat alcohol use.
Third, the laws encourage the licensing of nonmedical marijuana dispensaries. One of the issues with the medical marijuana laws, passed during the 2012 election, was the delay in licensing medical marijuana dispensaries. The first medical dispensary was licensed in 2015, almost three years after the law passed. Accordingly, the new law set forth timelines for the government to follow in licensure. Members of a new licensing commission, the Cannabis Control Commission, must be appointed in 2017 and the commission must adopt regulations for licensing. If regulations are timely adopted, medical marijuana professionals may apply for licenses on April 1, 2018. The timing for anyone else to apply depends on the amount of licensed medical marijuana dispensaries open or in the application process; applications will open to the general public on July 1, 2018 or April 1, 2019. If regulations are not timely adopted, licensed medical marijuana dispensaries may begin selling to the general adult population on July 1, 2018.
The law limits the scope of prohibitive bylaws that a municipality can enact to limit licensure. For example, municipalities must license nonmedical dispensaries equal to at least 20% of their licensed alcohol package stores. A municipality may be able to prohibit dispensaries by a town vote with a majority of voters voting to approve the ban; the law is open to interpretation on this point. Licensing preference is given to medical marijuana dispensaries, but anyone can apply on or after July 1, 2018 (this date could get extended to April 1, 2019 depending on the status of medical marijuana licensing).
Fourth, the nonmedical marijuana law opens up many other business opportunities besides the direct sale of marijuana or tetrahydrocannabinol (THC). The law authorizes the sale, possession, and manufacturing of marijuana accessories such as pipes and growing equipment. Previously, the sale of marijuana drug paraphernalia was illegal under state law. Businesses in the cannabis industry have struggled with banking relationships because of the existing Federal laws. Our client, Century Bank, has provided a method to cross that hurdle by accepting deposit relationships with businesses in the cannabis industry, subject to an application process.
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