M ARIJUANA A ND THE D EMOCRATIC P ROCESS March Brooks W. Chandler Boyd, Chandler & Falconer LLP

What the Law Says AS Local Control. A local government may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance

What the Law Says AS (b)- A local government may enact ordinances or regulations not in conflict with this chapter or with regulations enacted pursuant to this chapter, governing the time, place, manner, and number of marijuana establishment operations.

What the Public Thinks

What Elected Officials Think

Democratic Theory Do I do what I think is best for my community or what I think the citizens want?

Marijuana Commerce Local Concerns Public Health Public Safety Image Message Federal Law

Democratic Process How Do I Decide What is Best for the Community? How Do I Know What the Community Wants?

Democratic Process- What is Best for My Community

What Do People Want?

Practical Issues Transportation No Local Testing Facility Banking Price of Electricity Size of Market

Key Planning Decisions Ban of any Commercial Marijuana Facility a. Retail store b. Commercial grow facility c. Commercial manufacturing facility d. Testing facility e. Marijuana brokerage

Key Planning Decisions Limitation of Commercial Marijuana a. type of products sold or manufactured b. limit on number of any particular facility c. location of marijuana facilities d. operating hours

Clubs and Lounges Marijuana clubs prohibited. Stores can allow on-premises consumption. But city may prohibit on site consumption.

Taxation and Licensing Issues License requirements Excise Tax Special Rate of Sales Tax Operating Fee

Personal Use: Local Regulation No “Local Option” on personal use Regulate conduct, not substance – Examples: Nuisance laws for excessive marijuana smoke Disorderly conduct Consumption of marijuana while boating Define “in public”

“In Public” Issues State Regulation- “place to which the public or a substantial group of persons has access” Vacant private lots Passengers in Automobiles and Boats

Municipal Input on State Licensing Provide input on board licensing and veto license for cause

Enforcement of State Regulations Municipality may provide notice of violation to Board; Board will proceed on notice if it is not arbitrary.

Municipal: Action & Inaction What if we do nothing? Board will issue licenses Police cite violations of state law only Treated like any other business

Municipally Owned Retail 3 AAC : Final version of regulations no longer allows city monopoly on retail marijuana. Marijuana is illegal under federal law

Federal Law Federal Enforcement Priorities: The Cole Memo In states that have legalized marijuana, the federal government has taken a hands-off approach, except to prevent: Distribution to minors Support of criminal enterprises by marijuana proceeds Distribution of marijuana into other states “Legal” marijuana as a cover for other illegal drugs Violence and use of firearms Intoxicated driving Cultivation on public lands Possession on federal property

Federal Law: Municipal Concerns Drug Free Workplace Act of 1988 Recipients of federal grants must keep the workplace free of illegal drugs, including marijuana. Must have policy to keep workplace drug-free. Does not require drug testing.

Federal Law: Municipal Store As a recipient of federal grants, must have policies to prevent the presence of marijuana in the workplace. City owned store inconsistent with this concept. An alternative is: Municipal Franchise – AS Municipal oversight and control provided by provisions of franchise agreement with operator Franchise license is granted by a competitive RFP procedure