As our earlier blog post explained, New York State seems to be on the verge of passing comprehensive cannabis/marijuana reform legislation. This presents several new legal issues for municipalities, including questions about how to regulate the emerging industry. Local governments will likely be interested in regulating a variety of different areas of this emerging industry, including cultivation, sale, and use:
Cultivation: Where should cultivation be allowed and who should be allowed to grow cannabis/marijuana? Should growers be required to obtain a permit? Should it be confined to indoor facilities, or should outdoor cultivation be allowed? Should plant or flower-based cultivation be treated differently from edible, tincture, wax, and oil products?
Sale: Where should the sale of cannabis/marijuana be allowed? Should there be a limit on how much can be purchased at given time? Should the sale it be permitted everywhere or only in certain zoning districts? Should vendors be required to obtain a permit? If so, will the number of such permits be limited? What will the procedure be for obtaining such a permit? Who will decide if a permit should be issued? Will permits be granted “as of right,” or will the issuance of such permits be discretionary? Will there be a right to appeal an initial denial of such a permit? Can the denial of an administrative appeal be challenged in court?
Use: Should municipalities impose higher restrictions on use than those imposed by state or federal law (e.g., restricting use to those over the age of 21 or 25 rather than 18, etc.)? Should public use be limited (like alcohol)? Should use be permitted only on private property? Should smoking be treated differently than vaping? Should use of tinctures and edibles be treated differently? Should only dispensaries be permitted, or should social lounges or marijuana bars also be permitted?
Although some of these issues may be addressed by the forthcoming State legislation (therefore pre-empting local regulation of the same issues), other issues will likely be left to local governments to regulate. And while the nuances of these issues may vary from place to place based on policy considerations, the mechanism by which municipalities address these issues will likely be the same: through local laws. Accordingly, careful consideration of how local laws will regulate cannabis/marijuana will be extremely important, especially in the early days after state and/or federal legalization. If municipalities want to be able to effectively address these issues through local laws, they will need to ensure that such regulations are properly drafted, and that the procedures used to adopt them can survive legal scrutiny.
If your municipality has not yet prepared for state-wide legalization, it should consult with an experienced attorney for help, particularly with respect to zoning, land use, and municipal law issues.
Be sure to check-in with us again soon for our next blog on legal issues related to cannabis/marijuana.
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