Smoking Of Cannabis Can Be Permitted Where Tobacco Is Not; Municipalities Can Adopt Favorable Regulations

From the Marijuana Regulation and Taxation Act (MRTA) presentation from Beacon’s retained law firm Keane and Beane, which prompted the report that Beacon was considering banning cannabis, tobacco and vapor in public parks, a note about allowing the smoking of cannabis in locations where smoking tobacco is prohibited was noted in print, but lingered upon as an option for the City Council. The City Administrator Chris White brought the reverse to the Council, for them to consider prohibiting tobacco, vapor and cannabis in Beacon’s public parks. Banning tobacco can be done, however, minus the ban on cannabis.

Since the MRTA legislation is written so favorably towards selling it, growing it and using it, to regulate open air public spaces seems counter-intuitive to the intent. Restricting that amount of land could have the effect of corralling people into tighter locations. It also has the possibility of new laws against smoking cannabis in the open, without fear of charges or judgement, which is again part of why the law was written.

Additionally, while smoking tobacco is banned from trails, City Administrator Chris implied his favor with discretionary application of the regulation, stating that he simply wanted to give people more teeth when asking people next to them to stop smoking at soccer games. He implied that if people were smoking “way up in the woods, we are not going to see,” regarding an action that is now legal, where people can smoke marijuana and be seen.

From Keane and Bean'e’s presentation, here are the guidelines on smoking cannabis effective immediately:

• Adults 21 and older can generally smoke cannabis anywhere it is currently legal to use tobacco.

• Smoking cannabis is prohibited in schools, workplaces, and in cars.

• Municipalities can also adopt regulations to allow the smoking of cannabis in locations where smoking tobacco is prohibited.

How Cannabis Sales Will Work (So Far); How Much Money Beacon Can Get From Tax Revenue

New York State became the 15th state in the nation to legalize adult-use cannabis (also known as marijuana, or recreational marijuana). It did so after a long delay due to many disagreements, including debates on home cultivation (reportedly rebuffed by large marijuana businesses), and reluctance from police and educators. Governor Andrew Cuomo signed the Marijuana Regulation & Taxation Act (MRTA) on March 31, 2021 legalizing adult-use cannabis (also known as marijuana, or recreational marijuana) in New York State, and is undergoing review on how to handle records for those previously convicted. Effective immediately, smoking cannabis where tobacco is legally allowed is acceptable, and the selling and cultivation of the plant is being worked out by municipalities and the state now.

The legislation creates a new Office of Cannabis Management (OCM) governed by a Cannabis Control Board to oversee and implement the law. This board has no members yet, as pointed out by the City of Beacon’s legal counsel, Drew Victoria Gamils, Esq. of Keane and Beane during her MRTA presentation to the City Council during a 6/14/2021 Workshop meeting discussing Beacon’s options. The OCM will issue licenses and develop regulations outlining how and when business can participate in the new industry.

Regulatory Framework Created In Name Of Social Justice

As stated on the OCM’s website, part of the reason the plant has been legalized is to balance equity in the profit and enjoyment of cannabis. Three frameworks are noted to be the core to the regulation:

Social Justice
Establishes a robust social and economic equity program to actively encourage members from communities disproportionally impacted by the policies of prohibition to participate in the new industry.

Public Health & Safety
Administers a sophisticated quality assurance regulatory structure including standards for production and manufacturing, strict product testing, labeling, packaging and advertising to ensure products are safe for consumers and not targeted to youth.

Economic Development
Encourages small business and farmers to participate in the cannabis industry with the creation of microbusiness, cooperative and delivery license types.

Cities And Towns Can Opt-Out Of Sales, But Not Growing At Home

According to Attorney Drew’s presentation, “the MRTA gives cities the ability to opt-out of allowing adult-use dispensaries and/or adult-use social consumption sites to operate within their boundaries.” If a municipality already had law banning the retail sale of recreational marijuana, such local law is not valid. The municipality would need to adopt a new local law to opt-out, and must do so by December 31, 2021 and is subject to a permissive referendum under Municipal Home Rule Law §24.

The right to opt-out does not apply to cultivating or processing cannabis within the city’s boundaries. People growing cannabis on their own can do so at their private residence (in about 2023, not now). A person can grow up to 3 mature and 3 immature cannabis plants. If a person has roommates at their residence, 6 mature and 6 immature cannabis plants “may be cultivated, harvested, dried or possessed within any private residence or on the grounds of a person’s private residence.”

As for the security of the plant(s): “The person must take reasonable steps designed to ensure that such cannabis is in a secured place not accessible to any person under the age of 21,” according to Attorney Drew’s presentation, where she suggested different ways Beacon’s City Council could craft their legislation on securing the plant, such as a greenhouse. A requirement of that magnitude, however which would add considerable expense to the grower. No county, town, city or village may enact or enforce any regulation that essentially prohibits a person from engaging in personal cultivation, and violations of the personal cultivation restrictions are limited to a civil penalty of up to $200.

The right to grow at home will not come until 2023, Attorney Drew explained during the meeting. She advised the Council that they do have time to create regulations, but recommended waiting until the Board makes its recommendations first. “Nobody go buy seeds yet, bc that's against the law,” she said with a laugh.

What Cannabis Licenses Are In Play For Beacon To Regulate

According to Attorney Drew’s presentation, the following license were created for the legalization of marijuana in New York State, but only 2 of them can be regulated in zoning laws in Beacon at this time: Adult-use on-site consumption license and Adult-use retail dispensary license.

The MRTA created the following categories of licenses:

• Adult-use cultivator license

• Registered organization adult-use cultivator, processor, distributor, retail dispensary license.

• Registered organization adult-use cultivator, processor and distributor license.

• Adult-use processor license

• Adult-use cooperative license

• Adult-use distributor license

• Adult-use retail dispensary license

• Microbusiness license

• Delivery license

• Nursery License

• Adult-use on-site consumption license

Businesses applying for a Adult-use retail dispensary license license or Adult-use on-site consumption license must apply for approval from the city. According to Attorney Drew: “The city shall have the option to submit an opinion in favor of or against a license. When the municipality expresses an opinion in favor of or against the granting of such license or permit application, any such opinion shall be deemed part of the record. The Cannabis Control Board (CCB) shall respond in writing to such city, town, village or community board with an explanation of how such opinion was considered in the granting or denial of an application.”

Beacon Would Get 1% Sales Tax Directly - Going Around Dutchess County’s Sales Tax Collection

Sales tax from Beacon stores is not sent directly to Beacon. For the past few decades, Beacon and other municipalities have agreed to funnel all sales tax to Dutchess County, and in turn gets paid a flat rate that does not change if the sales tax goes up or down. During the pandemic, Beacon’s pre-negotiated sales tax payments from Dutchess County did not change. However, Beacon did not receive a bonus payment during the pandemic, the previous City Administrator Anthony Ruggiero confirmed to A Little Beacon Blog.

That said, neither the New York State Department of Finance nor Dutchess County will tell anyone what the actual sales tax is that is generated from Beacon, as A Little Beacon Blog reported in 2020 after beginning research in 2019. If Beacon decides not to continue this agreement, which expires before 2024, somehow, that dollar amount will need to be revealed, if Beacon begins collecting its own sales tax

For retail cannabis sales, the tax revenue will calculated in a particular way called a seed-to-sale system, said Attorney Drew when Mayor Lee Kyriacou asked her how the distribution would work based on Beacon’s sales tax arrangement with Dutchess County. She confirmed that Beacon’s portion of the tax revenue will go directly to Beacon, and that the Cannabis Control Board will be part of the overseeing entity to ensure that happens.

How The Tax Revenue Will Be Distributed

According to Attorney Drew, the New York State Comptroller will collect the money, then distribute it to Dutchess County, who then distributes it to Beacon.

From the presentation:

• Cannabis products will be subject to a 13% sales tax in New York, 9% of which will be directed to state coffers and 4% to localities.

• The 4% cannabis excise tax for local government purposes would be imposed on the retail sale of adult-use cannabis products from retail dispensaries to consumers.

• The revenue from the tax will be distributed quarterly to each county.

• Counties will receive 25% of the local retail tax revenue and 75% of the revenue would be distributed quarterly by the counties to the cities, towns and villages within such county in which a retail dispensary is located.

• The revenue will be distributed in proportion to the sales of adult-use cannabis products by the retail dispensaries in such municipalities as reported by the seed-to-sale system.

• The county must distribute money no later than 30 days after receiving it from the State Comptroller.

One should ask if the public will have access to the quarterly audit of seed-to-sale system the exact amount per municipality without the need for a FOIA, since the regular retail sales tax for Beacon has been impossible to get, despite FOIAs being filed.

Opting In, But Making Business Impossible

The law states that municipalities that do not opt-out in order to collect the sales tax revenue and welcome new types of businesses into its borders, cannot do so in a way that effectively makes it impossible to do business. From the presentation: “A municipality that does not opt-out cannot adopt regulations that make the operation of licensed retail dispensaries or on-site consumption sites 'unreasonably impracticable’ as determined by the CCB.”

Councilmember Dan Aymar-Blair asked if Beacon could limit the number of a business type opening up shop within its borders. Attorney Drew answered “Currently the MRTA has a requirement that it must be located at least 500 feet away from school grounds, and 200 away from place of worship. Right of the bat with MRTA itself.” She recommended that Beacon could adopt requirements in the city code to make that requirement larger, or add additional requirements, such as being 500 feet from any park. Or the reverse - being located near a park where there is ample open air and circulation. Or no additional requirements.

Other regulatory controls, she said, can include:

• Site Plan and Special Permit Requirements

• Location of Uses

• Distance from Schools and Houses of Worship

• Hours of Operation

• Lighting and Security

• Nuisance and Odor Controls

• Other Performance Standards

The discussion of this will continue, so expect to see it on future Agendas for City Council meetings.

Beacon City Council Considers Smoking Ban In Public Parks, As Marijuana Is Legalized (Tobacco Would Be Included In Ban)

As Beacon’s City Council considers its new obligation from New York State to respect marijuana smoking in public, the Marijuana Regulation & Taxation Act (MRTA), a law passed after much delay prior to the racial reckoning of 2020 and into 2021), Beacon, along with all municipalities, is required to decide if it wants to opt out of retail sales tax revenue from Adult-Use Retail Dispensary stores (a store that sells cannabis that a person takes away from the store), or an On-Site Consumption Establishment (like a bar for alcohol that a person consumes on site and cannot take away). When signing the law, New York State declared that it became the “15th state to legalize cannabis with commitment to social equity.” So far, after the 6/14/2021 City Council Workshop meeting discussing the development, Beacon’s City Council is leaning in the direction of remaining opted-in to profiting from revenue from cannabis sales generated from within Beacon’s city limits.

Along with this retail choice, as presented in detail by Beacon’s retained law firm, Keane & Beane from attorney Drew Victoria Gamals, Beacon’s City Administrator Chris White brought to the Council the consideration of prohibiting smoking or vaping tobacco and marijuana in public parks to the Council, separate from the state-mandated retail decision. During the meeting, he said doing so was in the name of public health.

However, it should be noted, that in Keane and Beane’s Adult-Use Marijuana presentation, municipalities are able to “adopt regulations to allow the smoking of cannabis in locations where smoking tobacco is prohibited.” This option was not discussed during the Workshop where this topic was first breached.

New York’s lifting of the prohibition of marijuana smoking has brought new aromas to the city, which you may have noticed while walking down the sidewalk where bar patrons gather to smoke outside. Or someone driving in their car in front of you may be openly smoking cannabis while driving (which, according to Drew Victoria Gamils with Keane & Beane is not legal, nor is sitting in your car smoking cannabis while the car is off).

Is It The Aroma That Is Bothersome?

While it is a new aroma for some, it is making others uncomfortable. Yet one thing is known: the Black community is disproportionately penalized for even carrying cannabis, let alone smoking it, as was pointed out by Councilmember Air Nonken Rhodes during the presentation of the ban on smoking in Beacon’s public parks during the meeting.

City Administrator Chris White responded to Air’s concern by stating that “enforcement would need to be closely watched.” Which would require data collection and review of each citation. Something which Beacon’s City Council is new to acquiring in the aftermath of the spotlight on criminal justice. It is also not clear if the City Council or the City Administrator is in the habit of regularly reviewing the data that the City of Beacon Police Department collects.

During this City Council Workshop, City Administrator Chris White equated publicly smoking marijuana to smoking tobacco, as he brought to the council the consideration to ban it from public parks and “soccer games.” Chris stated that on Beacon’s trails, there is a ban on smoking, but he was unclear as to why that was, and not banned in parks. He wondered if it was because people are walking in a “linear” path. In his pursuit of a policy to be able to enforce, he expanded: “If you're way up in the woods, we are not going to see. However if you are at a soccer game, and not being respectful of others, I'm sure you are going to be reminded of that,” he stated, explaining that a person complaining to their fellow parent would have new legislation supporting their complaint to a person sitting next to them.

Not that soccer games need more opportunities for conflict among overly aggressive parents, who continuously need their own refereeing by the professional hired to ref the kids and enforce rules of the game in play.

(The no-smoking rule on trails could be for fire prevention, like that time when Breakneck caught on fire in 2020.)

Soccer Games and Smoking

Having been to many soccer games and practices, as well as those for flag football, I have not encountered folks smoking tobacco or cannabis. While that is a broad statement, people usually step away when smoking, out of respect for others. As for Pete and Toshi Seeger Riverfront Park, that area is so spacious and windy, most aromas don’t linger - unless it is the regular aroma of charcoal burning for burgers and hot dogs.

Meanwhile, New York State considers cannabis a potential thriving business that it can regulate and profit from, while encouraging agricultural involvement from traditionally oppressed groups. Expanding limitations on where it can be smoked is counter to that intent.

From New York’s new Office of Cannabis Management, the new law “Establishes a robust social and economic equity program to actively encourage members from communities disproportionally impacted by the policies of prohibition to participate in the new industry. … [It] encourages small business and farmers to participate in the cannabis industry with the creation of microbusiness, cooperative and delivery license types.”

Proposed Penalties For Smoking In Beacon’s Public Parks

A majority of Beacon’s City Council leaned toward accepting the sale of cannabis in Beacon, but banning smoking in public parks. The penalties, they agreed on, could be light. The financial penalty by default, City Attorney Drew said, has a maximum fine of $1,000 per day. City Attorney Drew confirmed that the penalty would be settled in Justice Court between the City and the Defendant. City Administrator Chris attempted assurance: “It’s usually much less than the maximum penalty.“

City Attorney Drew added: “If you go to trial, you could get $40,000. Working with the police and the defendant, you might end up settling for $9,000. That's a high example. You might end up settling for $500 in Justice Court.”

Councilmember Dan Aymar-Blair requested that the financial penalty be light, so as to not impact anyone’s rent. He and other Councilmembers agreed that jail time would be not ideal, and they would want to specifically exclude that penalty from Beacon’s legislation.

City Attorney Drew recommended that the City Council hear from residents before moving forward with drafting legislation on how to regulate the sale of cannabis in Beacon.

Agenda Posted For The 6/14/2021 City Council Workshop Meeeting

Beacon’s City Council meets tonight to discuss the following issues that are on the agenda. During a Workshop meeting, the public can listen, but not participate. The purpose of these meetings is to workshop a concept before bringing it formally before the public for a vote, if it reaches that point. Topics that have already made it to the public are sometimes brought back to Workshops status to be further discussed, after receiving feedback from the public.

Click here for the agenda at the City’s website.

ALBB publishes the agenda here, plus the video when it is released. All meetings are published here in ALBB’s Easy Access Local Government section.

1. Notice of Change in Meeting Location June 14, 2021

2. Marijuana Regulation and Taxation Act Presentation by City Attorney

3. Proposed Local Law to Create Chapter 155, Article III of the Code of the City of Beacon to Prohibit Smoking in City Parks

4. Participatory Budgeting Discussion

5. Recommendations from the Parking and Traffic Safety Committee

6. Police Advisory Committee

7. Proposed Historic Property Nominations Pursuant to the Historic District Landmark Overlay (HDLO) Zone

8. Proposed Abandonment of City Paper Streets: Morse Street, Be Vier Avenue, and Ryans Avenue