Mills: What happens on January 30 if the Legislature does nothing?

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By A. M. Sheehan

STATE — On Monday, Jan. 30, if the state Legislature has not changed the new cannabis law, children under 21 will be able to possess and use and everyone will be able to possess, transport and furnish, not just marijuana leaf, but up to 2.5 ounces of hashish, honey butane oil and other derivatives of cannabis.

And this has state Attorney General Janet Mills concerned.

In a memo to Rep. Louis J. Luchini and Sen. Garrett Mason, co-chairs of the Joint Committee on Veterans and Legal Affairs, Mills cites sections of the new law that “would also create significant problems in implementation and serious unattended consequences if they take effect immediately.”

These include cannabis in the workplace, in schools, in rental properties and in child protection proceedings.

“This provision and others create ambiguities and conflicts with other state and federal laws that need attention before the new law takes effect,” she continues in the memo.

First she cites the definition of marijuana in the new law, which is much broader than defined in the Maine Criminal Code or the medical marijuana law. The new law does not define “marijuana accessories” or “prepared marijuana” and the term “flowering marijuana plant” seems to include a plant that is not actually flowering and is inconsistent with the term “mature marijuana plant” used in the medical marijuana law, she notes.

The Criminal Code defines marijuana to include leaves, stems, flowers and seeds of all species of the plant genus cannabis – growing or not but not the resin extracted from any part, nor every compound, manufacture, salt derivative, mixture or preparation from the resin including hashish.

Hashish is defined separately.

The new law, however, defines marijuana as the same as cannabis, which is broadly defined as including “all parts of the plant … the resin … and every compound, manufacture, salt derivative, mixture or preparation of the plant, its seeds or its resin including cannabis concentrate … .”

In other words, Mills says, the new law, without explicitly saying so, includes hashish, THC and other substances that are much more potent than marijuana.

The new law has no provisions for violations of any of its provisions, she notes. For example, a person must be 21 to purchase in a retail outlet but has no penalty for violations.

The law affirmatively allows people over 21 to possess, buy and consume but says nothing about how people under 21 are treated if found in possession and what would happen if an adult provided marijuana to a minor.

Further it says a shop may not sell to anyone under 21 without checking ID, conversely meaning if the ID is checked it can be sold to a person under 21.

The new law, she points out, repeals the civil violation (22 MRS 2383), which has made it a civil violation to possess small amounts of marijuana.

Repealing the civil violation makes it lawful for 18-, 19- and 20-year-olds to possess and use several ounces of marijuana.

Locations

While myriad municipalities are grappling with the new law and local restrictions, nowhere in the law, Mills’ memo notes, is there any restriction about where a marijuana cultivation, testing facility, retail store or social club may be located.

This leaves them wide open to be near schools, daycare centers, health care facilities and the like.

Although it is a Class D crime to allow a minor to consume alcohol, there is no similar offense for allowing the consumption of marijuana either in a home or social club.

Nor does the new law address impaired drivers, she says.

“You can’t have an open alcohol container in a car, what about a lit joint? You can’t consume alcohol in public, what about consuming marijuana in public?”

Mills notes that the legal definition of a public place is any government-owned entity including schools; custodial facilities; courts; public ways; lobbies, hallways, lavatories and basement portions of apartment buildings/houses, hotels, public buildings and transportation terminals; public beaches; private ways and parking areas.

Nor does the law address an employer’s rights to ensure employees are not under the influence.

Smoking in public

Another controversial issue is public smoking laws. Although the law says “a person may consume marijuana in a non public place including a private residence,” “nonpublic” is not defined.

Public place, however, in the smoking law means any place not open to the sky to which the public is invited or allowed and includes outdoor eating areas. So, says Mills, smoking marijuana in other open areas arguably will be allowed under the new law and consuming marijuana in other forms in other places appears to be allowed.

The new law also states that smoking marijuana sold in a social club must be consumed on premises but the law also states that smoking marijuana is not allowed in a public place, which would include a social club.

Municipalities

Although the law states a municipality may regulate location and operation of retail and social clubs it does not define what kind of restrictions can be put on them.

Mills points out that one section says municipalities may regulate but another limits that regulation to 180 days.

Her concerns also include a lack of teeth for prior convictions that disqualify a person from being licensed, evidence of rehabilitation, the fact that a person’s license (for growing, retail or social) may not be suspended for more than six months no matter how egregious the conduct. Other concerns are that the licensee may continue to do business when under suspension, the lack of anyone in state government qualified to administer testing and certification and the subsection that requires municipalities to post and pay for public notifications if an entity is applying for a state license even when the municipality does not issue licences.

Mills closes the memo urging the Legislature to ask questions and deliberate carefully on “this important issue.”

On Jan. 19, the Legislature’s Veterans and Legal Affairs Committee voted 12-0 in favor of LD 88, a bill that extends the timeframe for lawmakers and the executive branch to create rules around issues associated with the sale and regulation of marijuana.

The bill will go before the full Legislature, but to go into effect before Jan. 30, it will need to be passed as emergency legislation, which requires two-thirds majorities in both the House and Senate.

Representative Luchini and Senator Mason did not return phone calls by press time.

Matt Daigle, staff reporter, contributed to this story.

asheehan@sunmediagroup.net