Maine's Joint Select Committee on Marijuana Legalization Implementation

Possession of up to 2.5 ounces of marijuana for recreational purposes has now been legal in the State of Maine for three weeks. The world as we know it seems unchanged. This, of course, follows the passage of last year’s Question #1 ballot initiative that sought to legalize the use of marijuana and was ultimately successful at the ballot box. Differences of opinion between various legislative factions and Governor Paul LePage over which bureaucratic agency should oversee eventual permitting for the commercial sale of marijuana also led to the late January passage of an emergency bill to make technical changes to the ballot initiative.

The passage of Question #1 led Maine’s 186-member legislature to respectively introduce roughly 70 individual pieces of legislation that would seek to impact the State’s relationship with marijuana in any number of ways. To best deal with this slew of bills that would otherwise be referred to several legislative committees, but chief among them the Joint Standing Committee on Veterans and Legal Affairs, legislative leadership last month agreed to the creation of a Joint Select Committee on Marijuana Legalization Implementation. This temporary, session-only committee will take up these bills in public hearing and continue to work them over the course of the 1st Regular Session of the 128th Legislature, which is likely to adjourn in June.

The Joint Select Committee has scheduled a public forum on the implementation of marijuana legalization that will be held Tuesday, February 28 at 1:00 P.M. in Room 216 of the Cross Office Building.

LePage Demands Stall Marijuana Law

Yesterday the already tumultuous story of LD 88, "An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act" took an increasingly intriguing turn when the bill was enacted by the Legislature but failed to meet Governor LePage's policy demands.

LD 88 was introduced by Rep. Louis Luchini (D-Ellsworth) earlier this month in response to last November's passage of referendum Question 1, which legalized recreational marijuana use. The ballot initiative failed to include language that could ensure minors would not be able to legally purchase or possess marijuana and this necessitated an amendment broadly accepted by the marijuana industry and community.

A more contentious aspect of the bill was to delay implementation of rule-making for three months, which was widely regarded as a heavy-handed delay of the implementation of the entire referendum. This common misconception frustrated stakeholders and many lawmakers during the bill's public hearing and work sessions as marijuana activists lambasted what they considered nefarious intent.

During the Legislature's Joint Standing Committee on Veterans and Legal Affairs' time working the bill Governor LePage made relatively little comment and did not get directly involved in goings-on around the document. That all changed during the middle part of this week, however, when the Blaine House began making noise that the Governor would veto an otherwise smooth ascendency of LD 88 if it did not hand retail licensing authority to the Bureau of Alcoholic Beverages & Lottery Operations rather than house it under the Department of Agriculture, Conservation & Forestry.

The left flank of the House Democratic Caucus was always uncomfortable with any mention of "delay" in relation to Question 1 and so the ground was fertile for knee-jerk disagreement when House Republicans sponsored a floor amendment proposing to make LePage's demanded changes, which also included 1.6 million dollars to better fund rule-making. The amendment was rejected in the House yesterday morning and both bodies of the Legislature moved swiftly to enact the bill in its original form.

There continued to be much uncertainty, though, as Governor LePage's threat to veto LD 88 loomed large over the Legislature. He is capable of holding the bill for ten business days without signing it or allowing it to become law and has been known to wait till the last hour to issue vetoes.

At 4 pm yesterday afternoon legislative leadership met with the Governor to try to avert an impending "crisis." They feared failing to have the bill signed by the Governor before the January 30 implementation of Question 1. The Governor indicated he might not issue a veto, and the media has reported he has refused to sign or veto it but there is broad consensus within the State House that any gubernatorial action during the next ten business days is possible.

VLA Reports out Marijuana Amendment

The Veterans and Legal Affairs Committee (“VLA”) held a public hearing on Tuesday of this week on LD 88, which lasted for just under four hours with several dozen members of the public testifying. There were more people there to testify against the bill, mainly organized by Paul McCarrier and Legalize Maine.

VLA met yesterday to work LD 88 a second time. They voted unanimously to support amendments and completed language review. The bill will be on the House calendar on Tuesday, so it can get it to the Governor as soon as possible.

The Committee addressed several issues:

1. Definitions: the amendment replaces the initiative definitions with definitions that mirror the criminal definitions. They try to refer to both marijuana and marijuana concentrate together mostly throughout the amendment when possible.
2. Minor issue: the Committee adopted their own provision specifically tied to prohibiting possession and applying tiered penalties. They opted to pass the comprehensive minor provisions on to the joint select committee to address.
3. Non-public definition: the Committee opted to limit to private residence "including curtilage" or "private property, not generally accessible to the public." There was a lot of discussion around use in motor vehicles (while in operation, buses, RVs, etc.), but they settled on focusing the language on consumption in a motor vehicle while the vehicle is in operation. They prohibit use on property used for daycares and in designated smoking areas under the Workplace Smoking Act. They apply fines for violations.
4. Rulemaking: adoption "shall" occur 9 months after the effective date of the MLA. The Department of Agriculture will be allowed to delegate rulemaking to the Department of Administrative and Financial Services and the Bureau of Alcoholic Beverages and Lottery.
5. Amounts: they used the MA language 2.5 oz of marijuana "except that no more than 5 grams may be in the form of marijuana concentrate." They opted to defer the weight issue - distinguishing this weight from the weight of the product (brownies, butter, etc.) - to the joint select committee. 

Legal Marijuana – High on the Legislative Agenda

In the wake of Question 1's passage on last November's referendum ballot in Maine, marijuana legalization must now be implemented via programs overseen by the Legislature and Executive Branch. This has led to a spate of proposed legislation —65 individual bills in total—that now seek to modify forthcoming programs, rein in or loosen legalization, make slight tweaks to the referendum language, or affect any number of other contours within the marijuana debate.

While the conversation in popular culture often remains a base assessment of marijuana's "effects" and if it should or should not be considered a drug, the policy story is a much different one. The vast majority of debate that has and will continue to rage at the Maine State House will center on which proponents of marijuana will see it regulated as they would most like.

This regulatory debate coupled with the sheer number of marijuana related bills has led legislative leadership to tentatively agree on a "joint-select committee" on marijuana. As opposed to the Legislature's regular "joint-standing committees" the joint select will exist only so long as it is intended to by its enactors and will specifically deal with marijuana legislation. They will have the full powers of a legislative committee in that area and will be able to hear, work, and report out bills. Legislative leadership is expected to announce the committee's membership next week. The irony that it is a joint committee is appreciated by one and all.

One of the 65 proposed bills has garnered the lion's share of interest, ire, and media attention thus far. LD 88 would delay the implementation of the Question 1 for one year as language changes were made to the impending statute. LD 88 had its first hearing today at 1 p.m. before the Veterans & Legal Affairs Committee.

Governor Certifies Marijuana Legalization Law

Governor LePage has certified the vote on the legalization of marijuana in Maine, which is now going into effect on January 30, 2017. It will be legal to possess up to 2.5 ounces of marijuana and grow your own six plants. There is no system in place to distribute recreational marijuana. It will be legal to give it away.

A number of municipalities, including our clients in Augusta, Brunswick and Windham, have enacted moratoria against the development of retail businesses and social clubs. This allows Towns to determine whether to ban retail sales and social clubs and to decide whether there are good reasons to treat retail differently from other retail stores and social clubs differently than bars. At least one town, Oakland, has enacted a ban because it believed it did not have the authority to enact a moratorium because it did not have an adequate Comprehensive Plan.

At this point there is no great benefit nor downside to enacting a moratorium. This is because under the law, the Legislature has nine months to establish a system for legal sales and social clubs and will need to correct some of the errors in the law, including a loophole pointed out by Attorney General Janet Mills, which could be read to allow sales of marijuana to people under the age of 21. There will be an intense lobbying effort in the upcoming Legislature by numerous parties, including the established dispensaries, caregivers and other interested parties, to make changes to the law. The Governor has already proposed a one-year moratorium. Many people think the Department of Agriculture is not the best agency to administer the program. How will the medical marijuana law be affected? MMA has already put in a bill to clarify municipal home rule authority to regulate medical marijuana.

This blog will track the process of the legalization bill and other marijuana and municipal related issues through the Legislature on a weekly basis.