By Lynne A. Williams
As an attorney who was one of the authors of Maine referendum Question 1, which legalized recreational marijuana in Maine, I have been closely following the Legislature’s Select Committee on Marijuana Legalization and the members’ work on creating a regulatory model for the state. I was therefore disappointed in Bar Harbor’s failure to understand the work that the committee has been doing, or to even have updated information on that work. When the Town Council met on Aug. 1, they had a memorandum in their packet that was based on the language of the initiative, Question 1, rather than on the six months of work done by the committee.
Much has changed since last November, and as a land use attorney and former chairman of the Bar Harbor Planning Board, I would like to provide this brief update.
The 17 members of the committee have been meeting twice, sometimes three or four times, a week since February. I have either attended or listened online to every one of those meetings and have submitted both oral and written testimony on various issues. I now wish to correct some factual elements presented in the memorandum submitted to the Town Council.
It should be recognized, of course, that those bills that will be submitted to the full Legislature will have to be passed, but the one bill voted on so far, regulation of marijuana testing laboratories, passed by huge margins, and it is likely that all of the bills not yet submitted also will pass overwhelmingly. Therefore a governor’s veto, if there is one, could be overturned.
By way of updating the town on what will be included in bills to the Legislature, I present the following information that should be of concern to municipalities. First, the committee has agreed that there will be an excise tax, similar to the excise tax on automobile registrations. The income from that tax will be shared with the towns that host marijuana businesses, through revenue sharing. There was support on the committee for a local option sales tax, but that is beyond the authority of the committee and will have to be considered by the Taxation Committee and the Legislature as a whole.
Cultivation businesses will not all be large and done in industrial warehouses. Rather, the committee has created four tiers of cultivation licenses, the smallest being the “specialty cultivation tier,” which will permit commercial growing of either 30 plants or a grow space of 500 square feet. This tier is designed for small growers, particularly those who are currently caregivers. The other three tiers expand on the growing space, up to the top tier of 30,000 square feet. Annual licensing fees for the various tiers are 50 percent less for outdoor growing.
There was a comment at the Town Council meeting that because Bar Harbor has only a small, currently full, industrial zone, product manufacturing businesses would be unable to locate here. However, the product manufacturing category includes the production of all manner of marijuana infused food items and body products, and such production ranges from home occupations up to industrial facilities. Bar Harbor has a “home occupation” use which may interest small producers, so this category should not be quickly discounted.
It should also be noted, because regulation of social clubs was raised at the Town Council meeting, the development of state regulations for social clubs has been put off until 2019. However, in order to make a clarification to a comment showing a misconception about social clubs, they can, and likely will, include such businesses as a cannabis spa using cannabis body products, a high end supper club, cafes and coffee shops and not just “pot bars.”
There also was an inaccuracy in the description of how state and municipality licensing will intersect. The applicant will apply to the state for a license in one or more categories and will only need to provide information about residency (must be a resident of Maine for the six months preceding application), tax compliance and some other information, as well as agreeing to a criminal background check. Once the applicant has received the state license, he or she will have one year to receive a permit/license from a municipality.
The applicant does not even need to tell the state, at the time of application, where he or she is considering seeking a local permit/license. There is, therefore, no pressure on a municipality to consider any local application in any time frame except for the one they create for themselves.
The state has ceded significant power to the municipalities to regulate marijuana businesses, and it is time for them to start creating the local regulatory structures. Regulation can occur through business licensing, zoning or both. Zoning changes take time. Applications likely will be available in February 2018. Bar Harbor is bordered by or very near four other towns that also voted in favor of legalization. If the goal is to drag out the creation of local regulatory structures, potential businesses will just go to nearby towns that welcome them.
Attorney Lynne A. Williams is a resident of Bar Harbor.