OSWEGO COUNTY – Your right to smoke, grow, and possess marijuana has certainly been a long time coming to New York. And depending on the choices municipalities throughout the state make by Dec. 31, it could still be a long time gone.
Towns, villages, and cities have until the end of this year to opt out of one critical component of marijuana legalization: the right to sell marijuana in a legal dispensary.
You may have the right to buy limited quantities of marijuana, but if your town, village, or city “opts out,” as it’s called, you’ll only be able to express that right somewhere else. Medical marijuana, however, is exempt from this restriction, and counties do not have the right to prevent the establishment of dispensaries.
A municipality may choose to opt-out of both adult-use retail dispensaries and on-site consumption licenses or just one type of license (for example, allow retail dispensaries but not on-site consumption licenses).
If a town passes a local law to opt-out, it only affects the area of the town outside of any village within the town.
Any local law opting out of adult-use retail dispensaries or on-site consumption licenses will be subject to a permissive referendum as outlined in section 24 of the Municipal Home Rule Law. This allows voters within the municipality to petition whether or not to approve the local law.
It should be noted, that while municipalities have the option to opt in or out, municipalities cannot opt out of adult-use legalization. Possession and use of cannabis by adults 21 years of age or older is legal in New York State.
The town of Mexico opted out at its Aug. 9 board meeting. By a unanimous vote, Supervisor Eric Behling, and Councilors Larry Barber, Judy Greenway, and Cindy Robert approved Local Law 1 of 2021, opting out of licensing and establishing retail dispensaries and on-site consumption establishments in the town of Mexico.
“The biggest thing we were looking at,” Behling said in a recent interview, “is that even the state hasn’t quite figured out how to administer and to set the guidelines and rules to this. So, to that end, we were saying, ‘Well, let’s at least opt out for now, and then that gives us a choice of how to go at this in a more reasonable fashion in as far as the rules and such and, of course, get our zoning and planning up to speed if we do choose to have it down the road.’
“We want to make sure we check all the boxes making sure it’s not near the schools,” Behling continued. “There’s a lot of schools in the area here. There’s even Amish schools. We’re trying to make sure we see both sides of the equation and address any concerns that people may have. We can have a permissive referendum. In that case, the people would get to vote on it, if the board chooses to go in that direction. This (opting out) helps pause it, and we can take a breath, look at it, and decide from that point.”
Behling expressed a rather personal support for the idea of a referendum on the issue. “Let the people voice their own opinions,” he said, while also adding he’s not looking at a referendum anytime soon. “I would see that down the road after we’ve figured out all the particulars as far as zoning and planning.”
The town’s decision to opt out probably came as no surprise to residents of the Village of Mexico, whose own unanimous board decision to do so preceded the town’s by two months.
Village Mayor Terry Grimshaw stated during the June 2 public hearing on the matter prior to the vote that due to the fact there were no specific guidelines at the time and the village has no local law enforcement, he felt it was in the village’s best interests to opt out of allowing a retail dispensary. Trustee Susan Linerode, though later voting in favor of opting out, stated she felt village residents were not aware of the cannabis law and that the question of opting out should therefore be put up for a public vote. However, that was not to be, and the mayor and four trustees, James Hotchkiss, James Emery, Robert Harter, and Susan Linerode, all voted in favor of the opt out, thereby preventing the establishment of dispensaries and on-site consumption businesses within the Village of Mexico.
It should be noted that opting out is not necessarily a permanent, irrevocable decision, but opting in may be. A municipality who has opted out by Dec. 31 of this year may reverse itself and opt back in at a later date. But, according to Betensky Law of Mount Kisco, New York, a municipality that does nothing by Dec. 31 and has thereby automatically opted in, cannot opt out later. This quirk in the law in itself may inspire many municipalities to opt out now, preserving their right to opt back in at some time in the future.
The village of Pulaski is thinking all that over right now.
“It was a board agenda item at our Monday (Sept. 13) meeting,” said Village Mayor Jan Tighe recently, “but basically, it was just to remind the board that we have to make a decision, and the clock is ticking. So, we are still researching the subject. We’re still looking for more information and kind of looking to see what other communities are doing, and then we’ll make our decision. I guess you could say it’s on our radar. It’ll definitely be a future agenda item.”
At June 14th’s Central Square board meeting, the issue of permitting the sale of cannabis within the Village or, on the other hand, opting out, was discussed. Concerns over permitting the sale included increase in drug use, traffic, increase in police work and arrests.
Trustee Murphy had suggested at the May 10 board meeting that the village adopt a law to opt out of the new cannabis law permitting sales in the Village. A discussion followed as to the loss of revenue if a law was established and surfaced again at the June 14 meeting.
Resident Paul Baxter suggested viewing a webinar on the topic provided by the Tug Hill Commission. At the board’s April 12 meeting, Baxter had presented information on how to change local laws to prevent the sale of legal marijuana in the village.
According to Village Clerk Kay Foster, as of Sept. 21, nothing new has been discussed or decided on opting out within the Village, though they are aware of the Dec. 31 deadline to do so.
Meanwhile, the city of Oswego has no plans to opt out and, in fact, has taken advantage of zoning provisions within the law to restrict any future dispensaries to the east side of the city as Mayor William Barlow explained earlier this year.
“The zoning code we passed a few years ago articulates where dispensaries can and can’t go,” he said. “Dispensaries will be allowed in our commercial areas like shopping plazas on the far east side of town. I thought the decriminalization of marijuana was a fair balance, stopping just shy of full legalization. The law passed by New York state really allows people to grow and possess excessive amounts of marijuana, in my opinion, and doesn’t address some issues we’ll run into with law enforcement and the Oswego Police Department. That being said, if we were to opt out of allowing dispensaries and sale, we’d be losing out on perhaps the only major benefit from the full legalization of marijuana, that being revenue, so we won’t be opting out and we have already addressed where these dispensaries can and can’t go.”
Even after Dec. 31, once all opt out decisions have been made, opening a dispensary within a municipality that has opted in is not a simple or guaranteed process by a long shot.
At least 30 days prior to applying for an adult-use retail dispensary or on-site consumption license, an applicant must notify the municipality of the applicant’s intent to apply for such license. The notification must be made to the clerk of the village, town, or city, or if in the city of New York, the community board in which the proposed premise is located. When the municipality expresses an opinion for or against the granting of the license, the opinion shall be deemed part of the record and used by the OCM (Office of Cannabis Management) to determine whether to grant or deny the application. The Cannabis Control Board must then respond in writing to the city, town, village, or community board, with an explanation of how such opinion was considered in the granting or denial of an application.
Beyond that, applying for a license to open a dispensary does not guarantee you’ll get one. The state intends to regulate marijuana as tightly, or perhaps more so, than it does liquor. However, the Liquor Authority will be somewhat of a model in obtaining a marijuana dispensary license, and the Cannabis Control Board and the state Liquor Authority will work in association with one another and operate under the same umbrella.
One important difference in the licensing process between liquor and marijuana will be the preference given to areas that are seen to have suffered inordinately under the past marijuana laws. The intention is that those who have suffered may now be able to profit.
At the same time, those who have past criminal records related to certain marijuana convictions may have those records expunged. For an extensive list of what convictions will automatically be expunged and other related information, see https://www.nycourts.gov/courthelp/criminal/marihuanaExpunge.shtml.
Municipalities concerned with how the tax revenue from allowed dispensaries will be divided up may want to refer to the following information available on the web for a detailed explanation of the rather involved tax formulas that will apply. Search for “cannabis-management-fact-sheet-9-21-local-government-06.pdf”
All municipalities throughout Oswego County will have to make the decision to opt out or automatically opt in to the dispensary provisions of the new marijuana law by the end of this year. This story will be updated as those decisions are made.