Local legal issues surrounding marijuana discussed

A panel of attorneys with expertise in local land use, employment law and public safety explored the legal uncertainties posed by the state’s medical marijuana law during the March 20 meeting of the Massachusetts Municipal Management Association in Charlton.

Local zoning and general bylaws or ordinances are explicitly allowed under the law, passed by voters in 2012. Attorney Lisa Mead of Blatman Bobrowski & Mead noted that zoning bylaws or ordinances may create an overlay district, or add medical marijuana dispensaries to the municipality’s land use table. Mead recommended that municipalities consider separating use in the local zoning code into two categories – dispensaries and cultivation sites – as different zoning for each may be appropriate.

For municipalities making dispensary or cultivation site approval subject to special permit, numerous evaluative criteria allow for community impact considerations. These considerations may form the basis for a host community agreement and community mitigation measures. Municipalities may not require a host community agreement with a dispensary as a condition for permitting, but a host community agreement is a viable tool to offset impacts on the municipality.

Mead discussed a cultivation facility locating in Amesbury that recently signed a host community agreement with a $50,000 per year payment (with an escalator) to the municipality. The dispensary will also pay real and personal property taxes to the municipality.

In the coming weeks, the Department of Revenue is expected to deliver an opinion as to whether the dispensaries or cultivation sites will qualify as a charitable organization for state tax purposes.

Municipalities also have the ability to regulate some operational components of medical marijuana facilities. Local license fees may be imposed, but fees must reflect the true costs of the dispensary or cultivation site to the municipality. Municipal bylaws may also be used to require the dispensary to report the same information to the municipality as it does to the DPH.

Attorney John Clifford of Clifford and Kenny spoke of the basic conflict for local officials presented by the federal illegal status of marijuana. In terms of municipal employment law, he noted that drug testing may occur for two classes of employees: those subject to federal Department of Transportation CDL testing and all other employees. Medical marijuana does not receive any exemption from the CDL testing regimen, he said, and employees should be advised of that policy.

Clifford said he expects case law will quickly accumulate as employment decisions involving medical marijuana face legal challenges. The Americans with Disabilities Act offers no protections for anyone who uses medical marijuana, he said, and employers are not required to accommodate on-site use of medical marijuana.

At least six states have adopted some employment protections for medical marijuana patients, and Massachusetts may follow suit in the coming years, Clifford said. Employers who can show that they have an economic loss may have recourse, and may be able to preclude medical marijuana use during hours of employment. Moving forward, he said, there may be a shift toward employee impairment testing and away from drug testing.

The Department of Public Health is in the process of verifying information contained in the applications submitted by the 20 applicants selected to receive provisional medical marijuana dispensary registrations. In four counties where no applicants were deemed qualified to open a dispensary, including Berkshire, Franklin, Dukes and Nantucket, a re-application process is underway with the goal of issuing at least one provisional registration per county, as mandated by the law.