Opting in or out of the “Marijuana Regulation and Taxation Act” (the “Legislation” or

[Lee Chowaniec]

The Lancaster Town Board is going to have to make a decision whether to opt out of the program. By law, if the Town wants to opt out it has until December 31 to do so. As the below alert indicates, the local law would be subject to a permissive referendum. It's important to note, if a Town opts out of the program, it can always opt in at a later date. However, if a Town does not opt out by December 31, they are prohibited from opting out at a later date.

Published MRTA guidelines

On March 31, 2021, Governor Cuomo signed the “Marijuana Regulation and Taxation Act” (the “Legislation” or “MRTA”), making New York the 15th state in the U.S. to legalize recreational cannabis. The Legislation will consolidate an adult-use cannabis program with New York State’s existing medical marijuana program and cannabinoid hemp program. The consolidated programs will be under the control of the Cannabis Control Board (the “Board”) and the Office of Cannabis Management (“OCM”).

The MRTA also establishes a licensing and taxation system for recreational marijuana sales and immediately legalizes personal possession of “up to three ounces of cannabis for recreational purposes or 24 grams of concentrated forms of the drug, such as oils.” It further creates a social and economic program to encourage individuals disproportionately impacted by cannabis enforcement to participate in the industry and will eventually allow recreational cannabis sales to people over the age of 21.

There is no denying the fact that the legalization of adult-use cannabis will have a direct impact upon local municipalities. For this reason, the MRTA grants municipalities a degree of local control over adult-use legalization to tackle some local issues and concerns. This Legal Alert summarizes these local controls and local revenue benefits.

1. Opt-Out Authorization
MRTA § 131(1)

The Legislation gives cities, towns and villages the ability to opt-out of allowing adult-use dispensaries and/or adult-use social consumption sites to operate within their boundaries. The licensure and establishment of a retail dispensary and/or on-site consumption operation (authorizing the retail sale of adult-use cannabis to consumers) shall not apply to a city, town or village that adopts a local law prohibiting the granting of such retail dispensary licenses and/or on-site consumption licenses within their respective jurisdictions. Any law enacted by a town shall apply only to the area of the town outside of any village situated within such town. The right to opt-out does not apply to cultivation of cannabis within a municipality’s boundaries.

An opt-out local law must be adopted by December 31, 2021 and is subject to a permissive referendum under Municipal Home Rule Law §24. Municipalities may not opt-out after December 31, 2021. However, a local law repealing such prohibition may be adopted at any time. Such repeal would also be subject to a permissive referendum.

2. Time, Place, and Manner Restrictions for the Operation of Licensed Adult-Use Cannabis Retail Dispensaries and/or On-Site Consumption Sites
MRTA § 131(2)

Cities, towns, and villages that do not-opt out of allowing retail dispensaries or on-site consumption sites within their boundaries may adopt local laws establishing reasonable time(s), place(s) and operational restrictions on these facilities. Municipalities may incorporate these local controls within their zoning codes. However, a municipality that does not opt-out cannot adopt regulations that make the operation of licensed retail dispensaries or on-site consumption sites “unreasonably impracticable” as determined by the Board.

Zoning limitations cannot make the legal operation of a licensed retail dispensary or on-site consumption site so difficult that the activity becomes impractical and, therefore, effectively operate as a ban on such uses. Local governments may not use a zoning code to effectively eliminate cannabis businesses in their communities by, for example, “finding zones in which it is very difficult to site these businesses or putting them on the edge of town where nobody wants to go, or in some other way making it so difficult for these businesses to be sited that the businesses won’t site in their communities.” Diesel v. Jackson County, 284 Or. App. 301 (Court of Appeals of Oregon 2017) (The Oregon court concluded that Jackson County’s zoning restrictions were not unreasonable, given both the petitioner’s concession that the land within the zones where cannabis cultivation was allowed was suitable for such use and the lack of evidence that inadequate land was available within those zones.)

Municipalities may, however, regulate retail dispensaries or on-site consumption establishments by specifying a particular distance from residentially zoned areas and facilities in which families and children congregate. Such restrictions may also include restrictions on the hours of operation. Moreover, zoning regulations may be used to prohibit such facilities from operating within a specified distance of another retail dispensary or on-site consumption establishment to avoid the impacts associated with the concentration of such uses in one place. However, municipalities need to ensure that after the law is adopted, reasonable alternative locations remain available for licensed retail dispensaries and on-site consumption establishments and that such restrictions are not considered “unreasonably impractical”.

Pursuant to Section 131(2) of the Legislation, the Board determines whether local zoning restrictions are “unreasonably impracticable”. In making this determination, the Board will likely consider whether the potential locations are accessible to the general public, the surrounding infrastructure, and the likelihood that the alternate locations will ever realistically become available for use.

3. Location Restrictions for Cannabis Retail Facilities
MRTA § 72(6) and § 77(4)

The Legislation includes a provision that no cannabis retail licensee shall locate a storefront within 500 feet of a school grounds or within 200 feet of a house of worship. For these purposes, a “school” is defined as any “public or private elementary, parochial, intermediate, junior high, vocational, or high school.” School grounds include any building, structure, athletic playing field, playground or land contained within the real property boundary line” of such a school. Municipalities may increase this separation distance requirement pursuant to locally enacted time, place, and manner requirements.

4. Personal Cultivation
New York Penal Law § 222.10

While the Legislation allows the cultivation of cannabis for personal use and limits the number of plants that may be grown, municipalities may enact laws to “reasonably regulate the actions and conduct of [personal cultivation].” However, no county, town, city, or village may enact or enforce any regulation that essentially prohibits a person from engaging in personal cultivation. Violations of the personal cultivation restrictions are limited to a civil penalty of up to $200.00. It should be noted that no more than six (6) mature and six (6) immature cannabis plants may be cultivated, harvested, dried, or possessed within any private residence or on the grounds of a person’s private residence. The personal cultivation of cannabis is only permitted within, or on the grounds of, a person’s private residence.

5. Smoking Regulations
MRTA § 2 and New York Penal Law 222.05(1)

Adults 21 and older can generally smoke cannabis anywhere it is currently legal to use tobacco. However, smoking is prohibited in schools, workplaces, or in cars. Municipalities can also adopt regulations to allow the smoking of cannabis in locations where smoking tobacco is prohibited.

6. Preemption
MRTA § 131(2)

All counties, cities, towns, and villages are preempted from adopting any law, rule, ordinance or regulation pertaining to the operation or licensure of registered organizations, adult-use cannabis licenses or cannabinoid hemp licenses.

7. Notification to Municipalities
MRTA § 76

Not less than 30 days nor more than 270 days before filing an application with the state for licensure as an adult-use retail dispensary or an on-site consumption establishment, an applicant must notify the municipality where the premises are located of the applicant’s intent to file such an application. Such notification must be made to the clerk of the city, town or village in which the designated premises are located by certified mail, return receipt requested, overnight delivery or personal service. The notice shall be on a standardized form and will include information such as the name of the applicant, trade name of the establishment, address of the establishment, and a statement indicating what the application is for (i.e. new establishment, transfer, renewal or alteration).

The city, town or village shall have the option to submit an opinion in favor of or against a license. When the municipality expresses an opinion in favor of or against the granting of such license or permit application, any such opinion shall be deemed part of the record. The Board shall respond in writing to such city, town, village or community board with an explanation of how such opinion was considered in the granting or denial of an application.

8. Local Revenue
New York Tax Law § 493(3) and § 496-b

Cannabis products will be subject to a 13% sales tax in New York, 9% of which will be directed to state coffers and 4% to localities. The 4% cannabis excise tax for local government purposes would be imposed on the retail sale of adult-use cannabis products from retail dispensaries to consumers. The revenue from the tax will be distributed quarterly to each county. Counties will receive 25% of the local retail tax revenue and 75% of the revenue would be distributed quarterly by the counties to the cities, towns and villages within such county in which a retail dispensary is located.

The revenue will be distributed in proportion to the sales of adult-use cannabis products by the retail dispensaries in such municipalities as reported by a seed-to-sale system. Where a retail dispensary is located in a village within a town that also permits cannabis retail sales, the county shall distribute the monies attributable to such retail dispensary to the town and village in such proportion as agreed upon by the governing body of such town and village or, in the absence of such an agreement, the money shall be evenly divided between the town and the village. The county must distribute money no later than 30 days after receiving it from the State Comptroller.

[mark blazejewski]

The Lancaster Town Board is going to have to make a decision whether to opt out of the program. By law, if the Town wants to opt out it has until December 31 to do so. As the below alert indicates, the local law would be subject to a permissive referendum. It's important to note, if a Town opts out of the program, it can always opt in at a later date. However, if a Town does not opt out by December 31, they are prohibited from opting out at a later date.

Published MRTA guidelines

On March 31, 2021, Governor Cuomo signed the “Marijuana Regulation and Taxation Act” (the “Legislation” or “MRTA”), making New York the 15th state in the U.S. to legalize recreational cannabis. The Legislation will consolidate an adult-use cannabis program with New York State’s existing medical marijuana program and cannabinoid hemp program. The consolidated programs will be under the control of the Cannabis Control Board (the “Board”) and the Office of Cannabis Management (“OCM”).

The MRTA also establishes a licensing and taxation system for recreational marijuana sales and immediately legalizes personal possession of “up to three ounces of cannabis for recreational purposes or 24 grams of concentrated forms of the drug, such as oils.” It further creates a social and economic program to encourage individuals disproportionately impacted by cannabis enforcement to participate in the industry and will eventually allow recreational cannabis sales to people over the age of 21.

There is no denying the fact that the legalization of adult-use cannabis will have a direct impact upon local municipalities. For this reason, the MRTA grants municipalities a degree of local control over adult-use legalization to tackle some local issues and concerns. This Legal Alert summarizes these local controls and local revenue benefits.

1. Opt-Out Authorization
MRTA § 131(1)

The Legislation gives cities, towns and villages the ability to opt-out of allowing adult-use dispensaries and/or adult-use social consumption sites to operate within their boundaries. The licensure and establishment of a retail dispensary and/or on-site consumption operation (authorizing the retail sale of adult-use cannabis to consumers) shall not apply to a city, town or village that adopts a local law prohibiting the granting of such retail dispensary licenses and/or on-site consumption licenses within their respective jurisdictions. Any law enacted by a town shall apply only to the area of the town outside of any village situated within such town. The right to opt-out does not apply to cultivation of cannabis within a municipality’s boundaries.

An opt-out local law must be adopted by December 31, 2021 and is subject to a permissive referendum under Municipal Home Rule Law §24. Municipalities may not opt-out after December 31, 2021. However, a local law repealing such prohibition may be adopted at any time. Such repeal would also be subject to a permissive referendum.

2. Time, Place, and Manner Restrictions for the Operation of Licensed Adult-Use Cannabis Retail Dispensaries and/or On-Site Consumption Sites
MRTA § 131(2)

Cities, towns, and villages that do not-opt out of allowing retail dispensaries or on-site consumption sites within their boundaries may adopt local laws establishing reasonable time(s), place(s) and operational restrictions on these facilities. Municipalities may incorporate these local controls within their zoning codes. However, a municipality that does not opt-out cannot adopt regulations that make the operation of licensed retail dispensaries or on-site consumption sites “unreasonably impracticable” as determined by the Board.

Zoning limitations cannot make the legal operation of a licensed retail dispensary or on-site consumption site so difficult that the activity becomes impractical and, therefore, effectively operate as a ban on such uses. Local governments may not use a zoning code to effectively eliminate cannabis businesses in their communities by, for example, “finding zones in which it is very difficult to site these businesses or putting them on the edge of town where nobody wants to go, or in some other way making it so difficult for these businesses to be sited that the businesses won’t site in their communities.” Diesel v. Jackson County, 284 Or. App. 301 (Court of Appeals of Oregon 2017) (The Oregon court concluded that Jackson County’s zoning restrictions were not unreasonable, given both the petitioner’s concession that the land within the zones where cannabis cultivation was allowed was suitable for such use and the lack of evidence that inadequate land was available within those zones.)

Municipalities may, however, regulate retail dispensaries or on-site consumption establishments by specifying a particular distance from residentially zoned areas and facilities in which families and children congregate. Such restrictions may also include restrictions on the hours of operation. Moreover, zoning regulations may be used to prohibit such facilities from operating within a specified distance of another retail dispensary or on-site consumption establishment to avoid the impacts associated with the concentration of such uses in one place. However, municipalities need to ensure that after the law is adopted, reasonable alternative locations remain available for licensed retail dispensaries and on-site consumption establishments and that such restrictions are not considered “unreasonably impractical”.

Pursuant to Section 131(2) of the Legislation, the Board determines whether local zoning restrictions are “unreasonably impracticable”. In making this determination, the Board will likely consider whether the potential locations are accessible to the general public, the surrounding infrastructure, and the likelihood that the alternate locations will ever realistically become available for use.

3. Location Restrictions for Cannabis Retail Facilities
MRTA § 72(6) and § 77(4)

The Legislation includes a provision that no cannabis retail licensee shall locate a storefront within 500 feet of a school grounds or within 200 feet of a house of worship. For these purposes, a “school” is defined as any “public or private elementary, parochial, intermediate, junior high, vocational, or high school.” School grounds include any building, structure, athletic playing field, playground or land contained within the real property boundary line” of such a school. Municipalities may increase this separation distance requirement pursuant to locally enacted time, place, and manner requirements.

4. Personal Cultivation
New York Penal Law § 222.10

While the Legislation allows the cultivation of cannabis for personal use and limits the number of plants that may be grown, municipalities may enact laws to “reasonably regulate the actions and conduct of [personal cultivation].” However, no county, town, city, or village may enact or enforce any regulation that essentially prohibits a person from engaging in personal cultivation. Violations of the personal cultivation restrictions are limited to a civil penalty of up to $200.00. It should be noted that no more than six (6) mature and six (6) immature cannabis plants may be cultivated, harvested, dried, or possessed within any private residence or on the grounds of a person’s private residence. The personal cultivation of cannabis is only permitted within, or on the grounds of, a person’s private residence.

5. Smoking Regulations
MRTA § 2 and New York Penal Law 222.05(1)

Adults 21 and older can generally smoke cannabis anywhere it is currently legal to use tobacco. However, smoking is prohibited in schools, workplaces, or in cars. Municipalities can also adopt regulations to allow the smoking of cannabis in locations where smoking tobacco is prohibited.

6. Preemption
MRTA § 131(2)

All counties, cities, towns, and villages are preempted from adopting any law, rule, ordinance or regulation pertaining to the operation or licensure of registered organizations, adult-use cannabis licenses or cannabinoid hemp licenses.

7. Notification to Municipalities
MRTA § 76

Not less than 30 days nor more than 270 days before filing an application with the state for licensure as an adult-use retail dispensary or an on-site consumption establishment, an applicant must notify the municipality where the premises are located of the applicant’s intent to file such an application. Such notification must be made to the clerk of the city, town or village in which the designated premises are located by certified mail, return receipt requested, overnight delivery or personal service. The notice shall be on a standardized form and will include information such as the name of the applicant, trade name of the establishment, address of the establishment, and a statement indicating what the application is for (i.e. new establishment, transfer, renewal or alteration).

The city, town or village shall have the option to submit an opinion in favor of or against a license. When the municipality expresses an opinion in favor of or against the granting of such license or permit application, any such opinion shall be deemed part of the record. The Board shall respond in writing to such city, town, village or community board with an explanation of how such opinion was considered in the granting or denial of an application.

8. Local Revenue
New York Tax Law § 493(3) and § 496-b

Cannabis products will be subject to a 13% sales tax in New York, 9% of which will be directed to state coffers and 4% to localities. The 4% cannabis excise tax for local government purposes would be imposed on the retail sale of adult-use cannabis products from retail dispensaries to consumers. The revenue from the tax will be distributed quarterly to each county. Counties will receive 25% of the local retail tax revenue and 75% of the revenue would be distributed quarterly by the counties to the cities, towns and villages within such county in which a retail dispensary is located.

The revenue will be distributed in proportion to the sales of adult-use cannabis products by the retail dispensaries in such municipalities as reported by a seed-to-sale system. Where a retail dispensary is located in a village within a town that also permits cannabis retail sales, the county shall distribute the monies attributable to such retail dispensary to the town and village in such proportion as agreed upon by the governing body of such town and village or, in the absence of such an agreement, the money shall be evenly divided between the town and the village. The county must distribute money no later than 30 days after receiving it from the State Comptroller.

Thank you Lee!

This is a wonderful resource to reference as we weigh our support or non-support; particularly your introductory comments.

Personally, I am not inclined to support the "opt-in," at least not at this point in time.

[Lee Chowaniec]

Discussions already are taking place in town weighing risk-benefit opt-in or opt-out outcomes of legalizing marijuana sale dispensaries and enforcing abuse violations..

I would hope the decision is based on voter referendum, and not before the town holds open meetings /public hearings, inviting the likes of substance abuse coalitions, police, ERT’s, Drug Court Justice Cervi, etc.

It is our town. We should not be influenced by what our esteemed Governor thinks and/or other municipalities. Government’s #1 priority is supposed to be public safety. How does legalizing and selling a recreational drug abet public safety?

[mark blazejewski]

I would hope the decision is based on voter referendum, and not before the town holds open meetings /public hearings, inviting the likes of substance abuse coalitions, police, ERT’s, Drug Court Justice Cervi, etc.

Absolutely!!!

This issue may severely impact the quality of life in Lancaster, and the residents, truly and completely informed, should have the DIRECT ultimate say on the issue.

[4248]

Say hello to Marijuana ! Its been here - it will be taxed and we will get used to it !

So whats next ?

[Lee Chowaniec]

Will Lancaster opt in or out permitting sale of recreational marijuana

The reasons for Lancaster opting in and permitting dispensary sale of recreational marijuana are numerous:
• Town revenue
• It is a drug with widespread use and will still be available to Lancaster residents through illicit sale or from other municipalities
• It is not a ‘gateway’ drug to using harder drugs that potentially kill
• It does not cause impairment if used responsibly

The Democratic Legislature is pleased Governor Hochul is going to fast-track the sale of recreational marijuana bill they approved in March.

Opponents of legalizing recreational marijuana list a host of health and societal issues and advocate that government should not be promoting and profiting via a tax system that can be harmful to some people - where addiction will occur in a state where some do not have easy or affordable access to drug or mental health treatment.

Where the national average for drug related overdose deaths increased by 30% in 2020 compared to 2019, Erie County experienced a 57% increase. I know personally of family members and friends who have lost loved ones from drug overdoses who disagree with the premise that marijuana is not a ‘gateway’ drug.

The town has until December 31, 2021, to opt in or opt out of permitting sale dispensaries. Once opting in there is no opting out in the future. Municipalities opting out can opt in at a future date.

The decision should come from public input at public hearings and/or by permissive referendum if need be.

[mark blazejewski]

Since this is an option...

The town has until December 31, 2021, to opt in or opt out of permitting sale dispensaries. Once opting in there is no opting out in the future. Municipalities opting out can opt in at a future date.

I agree with this comment Lee...

The decision should come from public input at public hearings and/or by permissive referendum if need be.

My Comment:

IMHO, this issue may have unforeseen negative consequences, so therefore, public education followed by an all-inclusive measure of resident attitudes is absolutely essential before an irreversible decision is made.

[Lee Chowaniec]

At Tuesday night’s town board meeting councilmember Robert Leary is sponsoring a resolution where the Home Rule Law of the State of New York provides for the adoption and enactment of local laws. A proposed Local Law of the year 2021 will be introduced entitled, “A Local Law to Opt-Out of allowing Cannabis Retail Dispensaries and On-Site Consumption Locales authorized under Cannabis Law §131”.

It is the intent of this local law to opt the Town of Lancaster out of allowing retail cannabis dispensaries and on-site cannabis consumption locales within the Town of Lancaster that would otherwise be allowed under the Cannabis Law. The Law is subject to a permissive referendum,

A public hearing will be held on October 4, 2021, for the proposed Local Law.

[Lee Chowaniec]

Young adult cannabis consumers nearly twice as likely to suffer from a heart attack, research shows

https://www.cnn.com/2021/09/07/healt...ess/index.html

Whether you smoke it, vape it or eat it as an edible, cannabis may be significantly increasing your risk of a heart attack.

Adults under 45 years old who consumed cannabis within the last 30 days, suffered from nearly double the number of heart attacks than adults who didn't use the drug, according to research published Tuesday in the Canadian Medical Association Journal.

Researchers analyzed health data from over 33,000 adults ages 18 to 44 included in US Centers for Disease Control and Prevention surveys in 2017 and 2018. Of the 17% of adults who reported using cannabis within the previous month, 1.3% later had a heart attack while only 0.8% of non-cannabis users reported the same.

Cannabis sold on the market today is also much more potent than cannabis sold in the past 50 years, said Robert Page, chair of the American Heart Association scientific statement on cannabis. "This isn't what your granddaddy used to smoke at Woodstock; this is highly potent," he said.

Comment

Significant findings, maybe not. Just a head’s up knowing of two individuals in their 30’s using marijuana and taking other medications to relieve pain or anxiety died in their sleep. The families are awaiting autopsy results.

A head’s up to those who maintain there are no ill effects, health or cognitive, from using recreational marijuana. As the legalization of marijuana will lead to more use and a false sense there are no adverse impacts, more studies will follow, and more scientific information may indicate otherwise.

[Lee Chowaniec]

The town board approved a proposed Local Law introduced, by Council Member Leary entitled, “A Local Law to Opt-Out of allowing Cannabis Retail Dispensaries and On-Site Consumption Locales authorized under Cannabis Law §131”.

A public hearing for the proposed Local Law was set for the 4th day of October 2021 at 7:15 o'clock P.M. The board spoke on putting the decision as to opting in or opting out for permitting recreational marijuana in town into the hands of the public.

Supervisor Ruffino said if the board decides to opt out it would be put in the public’s hand by referendum. Councilmember Leary interjected that the resolution was to set up a process that if they went to the opt out decision there would be a public hearing to put permitting recreational marijuana dispensary sales in the hands of the residents. “And then if it goes to referendum the public can vote on it,” said resolution sponsor Leary.

The resolution declares a permissive referendum is allowed, nothing in writing or implied by the board about a mandatory referendum: Section 5: Permissive Referendum/Referendum on Petition. This Local Law is subject to a referendum on petition in accordance with Cannabis Law §131 and the procedure outlined in Municipal Home Rule Law §24.

New York Municipal Home Rule Law
Sec. 24
Local Laws Subject to Referendum on Petition

A local law adopted by a county, city or town and subject to referendum on petition as provided in this section or in any other state statute, if not also subject to mandatory referendum, shall not take effect until at least forty-five days after its adoption; nor until approved by the affirmative vote of a majority of the qualified electors of the local government voting on a proposition for its approval if within forty-five days after its adoption there be filed with the clerk a petition protesting against such local law, signed and authenticated as herein required by qualified electors of such local government, registered to vote therein at the last preceding general election, in number equal to at least ten per centum of the total number of votes cast for governor at the last gubernatorial election in such local government. If such petition be so filed, a proposition for the approval of such local law shall be submitted at the next general election of state or local government officers held in such local government not less than sixty days after the filing of such petition, unless the petition request and the legislative body adopt a local law submitting such proposition at a special election held not less than sixty days after the adoption of the local law providing for such special election.

According to those state regulations it appears highly unlikely Lancaster residents will be afforded an opportunity to vote on the matter by permissive referendum in 2021.