On Monday, the Assembly Appropriations Committee and the Senate Judiciary each amended and approved legislation that will legalize the adult use of recreational marijuana. The committees also approved legislation to expand the State’s medical marijuana program and to streamline the expungement process. All of these bills are scheduled for final votes this Monday, March 25, though it appears there may not be sufficient support for final passage at this point in time.
The League is reviewing these bills and has begun to post of a series of blog posts on particular sections of the bills of interest to municipal governments. For your convenience, we provide the first two posts in this correspondence. Please follow and monitor the League’s Town Crier blog for additional information. The League will continue to provide you updates and more information on this legislation in the upcoming days.
In addition to authorizing local option taxes and the local regulation provisions provided below, S2703 will, if passed, do the following:
Create a State Cannabis Regulatory Commission to oversee the industry, including issuing licenses for the 4 license classes;
- Establish the process for licensing a cannabis consumption area, which may be hosted by a cannabis retailer or alternative treatment center that is permitted to dispense medical cannabis, including the Commission’s license and endorsement from the municipality;
- Deschedules marijuana as a Schedule I Controlled Dangerous Substance;
- Provides for an expungement process for past offenses;
Section 21. Local Cannabis Taxation; Local Cannabis Transfer Tax and User Tax, Pages 54-56.
This section authorizes municipalities to adopt ordinances imposing a “transfer tax” on cannabis sales on licensed cannabis establishments (see definition in Section 3, page 4, lines 13-16). Municipalities may enact a local tax up to:
2% of the receipts from each sale by a cannabis grower, cultivators (Class 1 license);
2% of the receipts from each sale by a cannabis processor (Class 2 license);
1% of the receipts from each sale by a cannabis wholesaler (Class 3 license); and/or,
3% of the receipts from each sale by a cannabis retailer (Class 4).
Thus, the municipality may enact the appropriate transfer tax on any of the licensed cannabis establishments located in the municipality.
These taxes are in addition to the State cannabis excise tax of $42 per ounce. Please note that no local transfer/user tax can be imposed on medical marijuana.
Per Section 22 (starting on page 56), the municipality may prohibit any or all of the 4 licenses within 180 days of the effective date of the Act.
For those who do not opt out, the local tax ordinance shall also include provisions for imposing a user tax, at the equivalent rate(s) set by the municipality, on any “concurrent license holder…operating more than one cannabis establishment.” This language clarifies earlier concerns about the tax on businesses that holds more than one license within the municipality, commonly referred to as a vertically integrated operation.
Receipts from the transfer and user taxes shall be remitted by the cannabis establishment directly to the Chief Financial Officer of the municipality, in a manner proscribed by the municipality.
If there is nonpayment of the transfer/user tax, then the unpaid balance and accrued interest shall be a lien in the same manner as other unpaid municipal taxes, fees, and charges.
Section 22, Local Government Entity Regulations or Ordinances, Pages 56-58.
This section authorizes municipalities to enact regulations governing the time of operation, location, manner and the number of cannabis establishments, as well as establish civil penalties for the violation of such ordinances and regulations.
A municipality may prohibit any one or more classes of cannabis licenses throughout the municipality, even if the municipality is within regions such as the Highlands, the Meadowlands or the Pinelands. In other words, a municipality could adopt an ordinance prohibiting retail establishments but permit cultivation operations.
On page 57, lines 11-14 it reads, “Only an ordinance to prohibit one or more classes of cannabis establishment enacted pursuant to the specific authority to do so by this section shall be valid and enforceable.”
Thus, any existing ordinances banning commercial marijuana sales or transactions will be null and void and the municipality will need to adopt a new ordinance to do so, which should reflect and reference this section of the law.
Municipalities will have 180 days from the effective date of the Act to opt out, by ordinance, of any one or all licenses. The League will prepare and make sample ordinance language that can be altered for your specific purposes.
- 180 days to pass an ordinance to opt out of any one or all class or classes of the business.
- After 5 years, need to act again, either to pass again the same ordinance or to amend accordingly.
- Can “opt-in” at any time.
- Take no action within 180 days of the Act
- Nothing in the bill prevents municipality opt-in by ordinance; affirmative action may be preferred to assess local conditions and opinions.
- Permitted Use in all industrial zones: growing, cultivating, processing and selling and reselling of cannabis and cannabis items by a grower, processor or wholesaler;
- Conditional Use in commercial or retail zones, subject to meeting conditions set forth in the local zoning ordinance or upon granting of a variance: retails sales.
- Cannot reconsider until 5 years, when a municipality may choose to opt out of one or more licenses; existing license holders grandfathered.
It is our understanding and that if you opt out within 180 days of the effective date of the Act, you may opt in later by ordinance.
When the State regulatory commission receives an application for initial licensing or renewal for any cannabis establishment or an endorsement for a cannabis consumption area, it shall notify the municipality within 7 days of the application, unless the municipality has already prohibited the class of license. In turn, the municipality must determine and inform the Commission if the application complies with the local regulations regarding time, location, and manner of operations and number of establishments.
The bill language also clarifies that the municipality may impose a local license requirement or endorsement requirement.
If and when this legislation becomes law, we would recommend a review of your zoning ordinance to make sure they comport with the opt-out/in provisions.
Contact: Michael F. Cerra, Assistant Executive Director, firstname.lastname@example.org, 609-695-3481 x120.