2017-05-05 / Front Page

Towns gather for marijuana summit

By Wm. Duke Harrington Staff Writer

KENNEBUNK — A recent summit on “Preparing for Recreational Marijuana in Maine” produced few solid answers for local officials apart from confirming the need for towns to get their legal ducks in a row by the time state licensing or retail operations goes into effect.

“I’m not going to say it depends, because that is such a lawyer answer,” said Leah Rachin, one of three attorneys from Kennebunk/ Saco law firm Bergen Parkinson who spoke at the event, held Monday, May 1, at Kennebunk Elementary School.

Selectmen, planning board members and town hall officials from Arundel, Kennebunk, and Kennebunkport, along with administrators and school board members from RSU 21, sat in on the 90-minute session. In all about 50 people gathered to hear Rachin and her colleagues, Durward Parkinson and Benjamin McCall, address the issue.

Following a statewide vote this past November, it became legal as of Jan. 30 for people aged 21 and over to possess up to 2.5 ounces of processed marijuana, as well as up to six mature marijuana plants, along with as many as 12 plants not yet ready for cultivation.

That, McCall said, is not something towns can do anything about. However, the new law does give towns the ability to regulate where and under what conditions retail establishments can operate, up to and including becoming a so-called “dry town” — a phrase taken from historic alcohol prohibition — to ban outright the operation of stores that sell marijuana, as well as “social clubs” where the drug can be consumed on premises. Facilities for cultivating, testing marijuana and manufacturing products for retail sale can also be restricted.

To date, Kennebunk voters have adopted a moratorium on licensing retail marijuana operations of all types. It was adopted Feb. 28 by a vote of 366-83.

That temporary ban was backdated to Oct. 25, 2016, and was set to expire April 9. However, on March 28 selectmen voted to extend the moratorium an additional 180 days, to Oct. 6.

That extension was voted in largely because the state legislature adopted a moratorium of its own, with state licensing standards now not expected to go into effect until February 2018.

“Until February of next year we don’t know what is going to come out for regulations, but I would venture to guess there will be a few surprises,” McCall said.

Towns across Maine have been lining up since last fall to pass moratoriums much like Kennebunk’s. However, others have also adopted a wait-and-see attitude.

On Jan. 30, voters at a special town meeting in Arundel rejected a moratorium proposal. About 40 residents attended the meeting, with the show of hands against the ban significant enough that it did not warrant an exact count. Meanwhile, this past December in Kennebunkport, selectmen decided not to take a moratorium question to voters at this time.

“At this point, it’s an academic situation. It would just be a political statement to have a moratorium,” board chairman Stuart Barwise said at the time. “Let’s not take action because we can, let’s wait and take action because we should.”

Rachin said the varying approaches are typical of what is happening among neighboring communities across Maine.

“That just shines a light on how municipalities, even in our own backyard, are taking an extremely different approach, she said.

She added that her firm is finding little correlation between how town’s voted in November, and the approach they are taking now on moratoriums, or are signaling they might pursue in terms of outright bans on retail operations.

“What we have noticed is that if you look at election results [for statewide legalization], they do not necessarily reflect what people want in their own town,” she said.

Statewide, the vote to legalize recreational use of marijuana passed by just 4,073 votes, of nearly 760,000 ballots cast. Locally, Arundel was most in favor of the change, with 54.1 percent of voters saying yes. Results in Kennebunk and Kennebunkport were much closer, however, with 50.3 and 50.9 percent in favor of legalization, respectively.

Much of Monday’s talk was centered on legal ramifications of marijuana legalization. The new law has protections for both employees, who cannot be fired for private use of the drug, and employers, who can ban use at work, including use outside of work that results in impairment while on the clock. That, Rachin said, puts Maine in uncharted territory among the eight states that have legalized marijuana for recreational use, and the 23 that allow “medical marijuana.”

However, she said town’s still need to adjust definitions in all local ordinances for what it will count as agriculture, or manufacturing. At the same time, disclaimers should be added to local licenses noting that marijuana remains illegal on the federal level.

Many of the recent legalization drives across the nation came about thanks to the 2013 Department of Justice document known as the Cole Memo, which declared the feds would adopt a hands-off approach in enforcing laws banning the use of marijuana.

“With the new administration, how those memoranda will be interpreted is up to speculation,” Parkinson said, while McCall observed that marijuana remains a Schedule 1 drug under federal law.

That raised a bit of concern for Kennebunk Code Enforcement Officer Paul Demers.

“If the town does allow the marijuana and it’s still a federal offence, and I sign the permit, am I an accessory to a federal offense?” he asked.

Rachin declined to offer legal advice on the spot, given the live internet broadcast of the meeting.

“I’m not going to answer that, especially here online,” she said.

But the question did serve as an example of the vast jungle of legalese yet to be explored, even if there have been certain trailblazers.

Parkinson recalled how, in Wells several years ago, a couple of men applied to open a restaurant in a residential neighborhood. That was not allowed under town zoning rules, but what could go in a residential neighborhood was a church. So the men established The Temple of Bacchus, named after the Roman god of agriculture, wine, and fertility. Instead of selling meals, the church leaders-cum-restaurateurs declared it was their custom of their religion to provide meals to all pilgrims, asking in return only a modest tithing to the temple.

“These are the things that don’t make common sense, that maybe don’t pass the straight-face test,” Parkinson said. “Still, I think we’ll see more of these Temples of Bacchus.”

Parkinson said the newly legal product will provide towns with ample opportunity to examine all of their zoning regulations, in ways that may not seem readily apparent now.

“Folks in Biddeford are buying up homes for the sole intent of growing marijuana, not for living there,” he said, noting an apparent workaround of zooming rules similar to the Temple scenario.

“That brings up the question, how often do you have to stay in a home for it to be a residence?” he asked, rhetorically. “Is one night enough?

“Not a day goes by that we don’t hear about some sort of a scheme,” Parkinson said. “Restaurants are very interested in seeing what they can do with marijuana. In Portland and elsewhere people are enquiring to us as attorney about what can done.”

Some places would like to establish a sort of cigar bar, he said, to which diners could retire to after their meal to consume marijuana in a legally-allowed social club. Others might like to offer special brownies as deserts, he said.

McCall pointed out that the legalization law does not allow a person or company to posses both a liquor license and retail marijuana license. However, in that case there may also be workarounds to be discovered by creative entrepreneurs, he said.

“It remains to be seen if someone could have two different LLCs that could inhabit different parts of the same building,” he said.

“We don’t know how a lot of this will be decided,” Parkinson said. “We need to build up a case law battle and we just don’t have that body of law yet. But it will happen. I’m convinced of that. We’re talking about very fine details, and that’s why our phones are ringing off the hook.”

And that’s why towns need to button up their codebooks, the attorneys said.

“These folks are going to slither and slide into the places where it’s best to do business,” Parkinson said. “There’s going to be a lot of interest in being along the Interstate 95 and Route 1 corridors. But they’ll flow like water to the places where the regulations are the easiest. They’ve already figured out that towns that are easier on [repair] garages and automobile graveyards are also probably going to be easier on marijuana.”

One big question, Parkinson said, is how to control odor from growing facilities.

“I can’t give you a great recommendation of where to go with that, but that is a use that is going to be up front in these applications, and that’s what the neighbors are going to complain about,” he said.

Another concern raised was the fear that legal marijuana, especially once available for sale and public consumption in private clubs, will lead to a spike in OUI accidents. Of particular concern was the fact that marijuana remains in the body much longer then alcohol, and there’s not an easy, definitive way to test for intoxication.

“Right now, there is not a limit that they can test for that would be upheld in court,” Kennebunk Police Chief Robert MacKenzie said. “Currently, what we arrest for is impairment.”

“We don’t know where all of this is going,” MacKenzie said, “We can learn a lot form what’s happened in Colorado but until we know how it’s going to be regulated by the state, and where and how it’s going to be driven underground, we really have to wait and see.”

During the year-long debate leading up to the legalization vote last November, the impact of legalization of marijuana in Colorado was held up by both sides to prove various points for and against the drug. While the example of alcohol prohibition is often raised to predict crime will fade away once marijuana is legal, the 10 percent tax to be levied on sales, and the regulations that may be in place, and the fact that banks may shy away from lending to owners of the new industry, could actually create an underground market.

Kennebunk Selectman Ed Karytko said he attended a recent symposium that reviewed what has happen in Colorado since it legalized marijuana in 2012. While some reports say use among minors has actually dipped since then, Karytko said he was not impressed with the data points he heard.

“I was almost in tears thinking that what has happened in Colorado will happen here. It’s terrifying,” he said.

Demers said butane is used to create a marijuana substance known as butane hash oil, which is less odiferous and more potent that regular marijuana. Part of the process involves boiling off the butane after it has been infused into the cannabis. That he said, can be a dangerous proposition when done in a home setting.

“When you start boiling butane in a glass bowl and heating it on the stove, you’re going to start seeing some safety issues. That’s the scary thing from the perspective of code enforcement,” he said.

“In Colorado, they have something like 30 houses a year that just blow up — boom,” agreed Parkinson.

In the end, everyone at the meeting seemed to agree with the assessment of Kennebunk Board of Selectman Chairman Dick Morin, who said that even if marijuana taxes do reap a windfall for the state, local costs will rise accordingly.

“Dry or not dry, legal or not legal, our towns are going to be faced with higher law enforcement costs and higher code enforcement costs,” he said. “The impact of this is going to be in our budgets and we need to keep this in the forefront of our minds.”

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