Marijuana Caregivers – A Regulatory Challenge in Residential Areas

Last session, the Maine Legislature passed LD 1539, which provided that registered medical marijuana caregivers could serve an unlimited number of patients. The law also requires municipalities to “opt in” if they wish to allow medical marijuana caregivers to open retail storefronts. We are all thankful for the clear language as to medical marijuana retail stores, but one aspect of the law that is proving challenging to municipalities is what—if anything—to do about regulating caregivers who do not wish to operate retail stores. 

We do know that municipalities have the authority under 22 M.R.S. § 2429-D to regulate registered caregivers, whether they operate a retail store or not. The only express limitation on that authority is that municipalities may not prohibit registered caregivers or limit their number. This means that municipalities are free to zone caregivers, require them to obtain licenses, or require them to comply with ordinance standards related to odor prevention, security, or other concerns. 

If your town is considering applying regulations to non-retail caregivers, here are some points to consider: 

1. Because the identity of registered caregivers is kept confidential, municipalities cannot simply obtain a roster to determine whether caregivers are a common use in town, or where they are located.
2. Many caregivers may fall within existing provisions related to home occupations. Consider whether specific restrictions would help ensure against negative impacts on the neighborhood, such as odors or traffic.
3. If you are considering requiring licenses, know that this will create a sort of registry of caregivers, since the municipality’s licensing records will likely not be subject to the same confidentiality that applies in the hands of the State. Some have noted that having such a list might subject those on it to safety or security concerns.
4. Make sure that any regulations on non-retail caregivers are in keeping with the scale of the operation. Consider whether proposed licensing fees or technical requirements are so onerous that they have the consequence of prohibiting small-scale caregivers.
5. Confirm that any proposed zoning regulations are (1) in conformity with the comprehensive plan; and (2) tailored to address concerns that are particular to the use.
6. Consider how pre-existing caregivers will be treated under the ordinance. Caregivers that were operating with any sort of municipal approval should clearly be treated as grandfathered against any new ordinance, but that right may be less clear for caregivers that were operating under the radar prior to an ordinance change.

As with the development of all ordinances, it is important to take your time and invite all stakeholders to the table. We have participated in and are monitoring municipal efforts throughout the state and can speak to the wide range of options that are being implemented. There is an approach that will work for your town, although it may take some work to get there.

“Opt In” Begins for Medical Marijuana Stores

December 13 was the effective date for bills passed by the 128th Legislature, including LD 1539, An Act to Amend Maine’s Medical Marijuana Law. Prior to this amendment, medical marijuana stores had gotten around the five-patient limit by eliminating one patient from their roster when the next one walked through the door. The law now formally allows medical marijuana caregivers to serve an unlimited number of patients, eliminating the need for them to maintain these “rolling rosters.” The law also specifically prevents medical marijuana storefronts from locating in a municipality unless that municipality has affirmatively passed a zoning or other ordinance which specifically allows them.

If a municipality already has one or more medical marijuana storefronts which are operating with some type of land use approval, the law does not allow that municipality to now prohibit those particular stores. However, new stores and existing stores operating without municipal approval will not be considered legal unless and until the municipality “opts in” by enacting an ordinance to allow them. We are working with many of our municipal clients to develop licensing and zoning ordinance provisions to address both adult use and medical marijuana establishments now that we have a solid legislative framework governing the scope of municipal authority.