MMA and MMLA express municipal concerns to CCC regarding regulations for on-site social consumption establishments

Cannabis Control Commission
Union Station
2 Washington Square, Worcester

Delivered electronically

Dear Members of the Cannabis Control Commission:

The Massachusetts Municipal Association joins with the Massachusetts Municipal Lawyers Association in providing the following comments to the Cannabis Control Commission in regard to its draft regulations, 935 CMR 500.00 (“Draft Regulations”), governing on-site Social Consumption Establishments. Given this “informal comment period,” we expect to make additional comments during the formal administrative process.

Our organizations support the intended goal of the Draft Regulations, but believe that it is important to consider municipal impacts and public health considerations relative to the rapid and simultaneous roll out of three new Social Consumption Establishments license types. We believe that an approach beginning only with the regulation and licensing of the proposed “Supplemental On-site Consumption License” can help to inform the process for the additional license categories in the future. This would better allow the CCC and host communities an opportunity to study and implement more effective regulations, local bylaws and policies for the benefit of public health and safety.

Social Consumption Establishment Licenses
Many municipalities agreed to host marijuana establishments without contemplation of Social Consumption Establishments currently under consideration by the CCC. Significantly, the Draft Regulations suggest, to some extent, that a Host Community Agreement is not required for all Social Consumption Establishment types. In particular, the Draft Regulations state that Marijuana Event Organizers would be required to obtain a Host Community Agreement with the municipality within which its principal place of business is located, however, the Draft Regulations do not expressly specify in the same manner that Host Community Agreements would be required for the other Social Consumption Establishments license categories.

Host Communities are now understandably concerned that they may not be able to regulate these businesses absent the adoption of robust local bylaws, policies, and/or regulations. Further, many host communities that allowed existing marijuana businesses to operate within their borders did not contemplate that those businesses would simply be permitted to operate a Social Consumption Establishment within or attached to the existing premises. The Draft Regulations should, in our opinion, be clarified to state that, consistent with M.G.L. Ch. 94G, Sec. 3, a new or amended Host Community Agreement (or Host Community Agreement Waiver) is required for each type of Social Consumption Establishment.

In addition, while the Draft Regulations do attempt to take some safety procedures into account, they fall short of a clear and comprehensive approach. The Draft Regulations require Agents (i.e., employees) to complete a “Social Consumption Core Curriculum” prior to working, with training including, among other requirements, strategies for de-escalating potentially dangerous situations, procedures for attending to medical or public safety emergencies, procedures for checking identification, and procedures for recognizing signs of impairment from alcohol or cannabis use. However, it is not transparent how policies put in place to help monitor over-consumption and medical concerns will be implemented and will affect local municipalities and emergency responders, who will undoubtedly also need to undergo such training efforts. Nor whether there will be statewide training and/or procedures for such issues.

We believe that the Commonwealth would benefit from first regulating the most simple type of Social Consumption Establishments (i.e., the stand-alone “cannabis lounge”) before offering the Hospitality On-site Consumption License and Event Organizer On-site Consumption License. In proposing that Hospitality On-site Consumption Licenses would be available in partnership with non-cannabis businesses, such as gyms where consumers would have access to dangerous equipment and heavy machinery or, restaurants where infused food would be available and presumably subject local permitting by boards of health under the Retail Food Code, the CCC is, in our opinion, acting prematurely to the detriment of the public when the implementation of stand-alone pot cafes has not yet been perfected, let alone tested in Massachusetts. Similarly, it would be premature to offer an Event Organizer On-site Consumption License to host permit Temporary Consumption Events.

Aside from the clear public health and safety concerns with the hasty licensing of three new business categories, the Draft Regulations are also concerning as they do not readily articulate municipal notification requirements. As previously noted, it is not apparent whether the Draft Regulations propose that Host Community Agreements will only be required for the Event Organizer On-site Consumption License and, even then, with the municipality where the Temporary Event will take place. Will there be a process for municipalities to refuse or otherwise regulate Temporary Events? How will health, security, safety and other issues be addressed, and will the hosting community be reimbursed for impacts of such Temporary Events? We would suggest creating a coherent licensing process by which a host community would be notified of a potential social consumption event with documentation of health and safety plans, and a discernible process for local approval and oversight.

In sum, while our organizations appreciate the CCC’s vision of different types of Social Consumption Establishments, we want to caution that the hasty roll-out of three different categories, before fully understanding the impacts of the most simplified form, will have a negative impact on host community’s ability to protect the public health and safety. We would suggest a more measured process, with clear parameters for municipalities to understand the full scope of the intended operations, before implementing a licensing scheme with more complex forms of social consumption.

Indoor and Outdoor Smoking Waivers
Finally, under the Draft Regulations, the existing prohibition on indoor smoking would be removed, as would the waiver requirement and local determination needed to permit outdoor smoking. Again, we suggest that the CCC exercise caution before removing existing requirements that the Social Consumption Establishments comply with the municipality’s applicable local rules and regulations pertaining to smoking and, among other mandates, obtain a determination from the host community that outdoor smoking would not pose an unacceptable risk to public health, safety or welfare greater than if consumption were to occur indoors. Protecting the public through health and safety regulations is a key function of municipal government. Removing this authority would be extremely detrimental and likely lead to roll-backs in other essential health and safety areas.

For all of the reasons discussed above, the MMLA and the MMA respectfully request that our organizations, acting on behalf of our members, be involved in the revision of the Draft Regulations. If you have questions or desire additional comment, please contact MMA Legislative Analyst Ali DiMatteo at adimatteo@mma.org, Nicole Costanzo of MMLA at NCostanzo@k-plaw.com and Ivria Fried of MMLA at ifried@harringtonheep.com.

Thank you for your time and consideration of the above comments and recommendations.

Sincerely,

Adam Chapdelaine
Executive Director, Massachusetts Municipal Association

Ivria Fried, Esq.
President, Massachusetts Municipal Lawyers Association