The advent of the recreational marijuana industry poses many concerns and questions for municipalities. This is amplified by the fact that the Maine Marijuana Legalization provides towns with a large degree of control over licensure and regulation of marijuana businesses. Towns may decide to prohibit marijuana commercial activities altogether, or to permit some activity but to limit the number of marijuana businesses that operate in a town. Towns also have the power to pass zoning ordinances controlling where marijuana retail activities can take place, and to impose their own regulatory requirements on marijuana businesses.
Many towns have decided that a first step in dealing with the emergence of the marijuana industry is to implement a moratorium on commercial marijuana sales.
It’s important to understand that commercial cultivation and sales of marijuana cannot take place in Maine until licenses are issued by the state to allow such activities. Those licenses cannot be issued until the state completes its rulemaking process. Currently that is scheduled to take nine months, but the legislature is considering legislation to extend that process out until February 1, 2018. It does become legal for Maine residents to possess, use and grow marijuana for personal use beginning on January 30, 2017, but a fully developed commercial system is several months away.
So at this stage of the game, since no commercial recreational marijuana cultivation and sales can lawfully take place, one may wonder whether moratoria are really necessary.
One reason cited by towns in implementing moratoria is a concern that local residents don’t understand the complex regulatory process that needs to unfold before implementation of a commercial marijuana industry in Maine, and may wrongly believe that they are entitled to begin opening marijuana stores right now. A moratorium gives a code enforcement officer a basis rooted in local ordinance to shut that kind of operation down. It’s a local policy and political decision for town policy makers to determine whether a moratorium makes sense in their town.
Remember, however, that moratoria are ordinances: they must be enacted by the municipal legislative body (either town meeting or town or city council). A moratorium ordinance must also meet the other requirements of Maine law, including a limited duration of 180 days, subject to extensions for additional 180-day periods provided (1) the problem necessitating the moratorium still exists, and (2) reasonable progress is being made to alleviate the problem. So while a town may decide that implementing a moratorium on commercial marijuana activity makes sense, care must be taken to make sure that this is done in compliance with applicable legal procedures, and that consideration of the deeper questions of how the town will regulate marijuana continues while the moratorium is in place.
-- Ted Kelleher heads Drummond Woodsum’s Regulated Substance Practice, where he helps clients, including municipalities across Maine, navigate the complex rules governing industries that make highly regulated consumer products such as breweries, distilleries and marijuana related businesses.