2018-08-03 / Front Page

K’port considers marijuana moratorium

By Duke Harrington Staff Writer

KENNEBUNKPORT — A potential loophole created by recent changes to state law governing marijuana consumption has prompted a call for a new motatorum in Kennebunkport.

On July 9, the state legislature overrode a veto from Gov. Paul LePage on two bills regulating medical marijuana and medical marijuana caregivers. Use of marijuana for medical purposes was legalized in Maine in 1999. In 2009, the state developed a regulatory framework to help chronically-ill patients obtain prescribed pot.

The rules rested with the state, leaving towns with little independent leeway.

One of the new laws allows those who are licensed to grow and dispense medical marijuana to open retail stores separate from their grow facilities. That rule was passed as an emergency measure, making it effective immediately.

According to Town Planner Werner Gilliam, many caregivers were effectively doing that already, and that excess is now codified into the new law. Allowed to grow for as many as five patients, care- givers can “float” permissions of the fifth patient, such that they remain in effect only for the duration of the sale, allowing them to serve a near unlimited number of people.

“It’s what many of us were thinking of as a workaround for the dispensary law,” Gilliam told selectmen at their July 13 meeting. “The state has pretty much taken a position that they are allowing this.”

To take in a steady stream of customers for that fifth grow slot, all a caregiver has to do to expand into genuine retail sales is obtain a permit from the town.

But that ability will fade away when the second of the two new laws takes effect Oct. 3, 90 days after the close of the current special legislative session.

That more far-reaching law expands a patient’s right to use marijuana with consultation from a doctor and creates six new licenses for regional medical marijuana dispensaries (allowing 14, total). Additionally, in an effort to better blend existing medical marijuana allowances with new rules created since 2016, when marijuana was made legal in Maine for adult recreational use, the new law will give towns previously unavailable powers under their “home rule” authority to regulate medical marijuana operations, including the new allowances for medical storefronts.

In a bit of a twist from previous provisions for retail marijuana sales for retail use, the power to sell will not be automatic but for local licensing and zoning rules. The new law has an opt-in provision that citizens would need to enact in order to allow marijuana sales.

“Right now we have to say we want to prohibit it — it’s assumed it’s OK unless we prohibit it,” Town Manager Laurie Smith explained. “In the future, it will be assumed it’s prohibited unless we opt in.”

The lag between the effective dates of the emergency bill and the one passed without emergency provisions created a window of opportunity in which someone could apply for a license to open a medical marijuana storefront.

Last November, Kennebunkport residents voted 910- 478 to ban all retail marijuana operations in town. However, that vote did not, and will not apply to medical marijuana sales.

“We had no jurisdiction over medical marijuana in the past,” Smith said, reiterating that the ability to have any say so at all does not kick in until Oct. 3, nearly three months after the emergency state law gave medical caregivers clearance to get a local license to set up a retail storefront.

“So, between now and then someone could submit an application,” Smith said. “It’s not that we have somebody lined up, but there is that possibility.”

Because Kennebunkport never adopted any local zoning rules regarding marijuana, those storefronts would be empowered to open up, at least in theory, anywhere in town where retail sales are allowed.

In order to snap shut that window of opportunity, selectmen agreed to schedule a public vote on a proposed 180-day moratorium on medical marijuana storefronts, giving the town the power to refuse any applications during that time.

“I think the voters spoke pretty clearly in the last cycle when we brought this to them for recreational (sales). I’m sure they’d like to speak to this again,” board Chairman Ed Hutchins said.

Although the public vote would not take place until more than a month after the Oct. 3 start of home rule on the topic, the moratorium would be backdated to the July 12 agreement by selectmen to schedule a moratorium vote.

The town would then have until Jan. 8, 2019, to establish zoning and licensing rules governing medical marijuana storefronts, or else vote to renew the moratorium if selectmen bring forward a vote to opt in and allow such sales of either medical marijuana or adult recreational use. Under the new law, Kennebunkport could simply remain a dry town.

Smith acknowledged the possibility of legal wrangling and dueling attorney interpretations on the proposed moratorium, to be voted on Nov. 6 but backdated, if passed, to July 12.

“If someone puts in an application between now and then that’s a battle we would need to discuss with them,” she said.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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