Oronogo city attorney – Legalization of marijuana requires cities to change but not immediately

Derek Snyder, city attorney for Oronogo, wrote the following letter, with a summary, to Mayor Charles Wilkins and the Board of Aldermen in advance of their Jan. 23 regular meeting.

On Nov. 8, 2022, Missouri voters approved an Amendment to the State Constitution, Article XIV, Marijuana Use and Regulation, Section 2. Marijuana legalization, regulation, and taxation.

When substantial changes occur, such as this recent amendment, it becomes necessary for all political subdivisions, including cities, towns and villages to examine their current municipal laws. This particular change affects provisions under most municipal offenses, as well as changes to allowed business licenses, sales, fees, taxation, and location for marijuana facilities.

First, it is helpful to remember that none of these changes require immediate action. Any current ordinance prohibiting what is now a lawful act are merely unenforceable. This does not mean it should not be dealt with and your ordinances repealed or revised, it just means it does not have to happen right now. Law enforcement will not be able to enforce any ordinance against an action that is now lawful under State law. But each municipal government should take care in properly amending or repealing any current ordinances affected by the new constitutional change.

Second, while the sale, possession and use of recreational (“adult use”) marijuana is now a lawful act, it does not mean that every municipality needs to immediately impose new regulations for this industry or establish taxes on the sale of adult use marijuana. Facilities to first receive licensing for the sale of adult use marijuana will likely be already existing medical marijuana facilities. Those businesses will be first in line to convert to what will now be considered a “Comprehensive Marijuana facility.’’ If a medical marijuana dispensary currently exists, it will likely be converted to a licensed comprehensive marijuana dispensary. It could then sell marijuana for medical purposes or adult use. The facility must apply to the State in order to convert the current license. However, the Department of Health and Senior Services must first promulgate rules for these new facilities. That will take some time. Because a template for medical marijuana already exist, the new rules will likely be a much faster roll out than medical marijuana rules. But it will not happen immediately.

What can municipalities do in regards to controlling or regulating commercial activity of adult use marijuana? Cities can create reasonable restrictions on the time, place and manner for sales and use in public. A municipality can limit the location of an adult use facility. If authorized by the voters of the municipality, then adult use sales in that jurisdiction can even be prohibited totally. However, the ballot language and timing creates difficult hurdles for that to occur and it would not make possession illegal. It would only prevent the legal sale of adult use marijuana in that municipality. But if adult use sales are legal in the municipality, then reasonable location restrictions can be imposed. Those restrictions could limit, for example, the proximity of the facility to schools, daycares and churches. License fees, while not unduly burdensome, can be imposed on these facilities. And, if voter approved, an additional 3% sales tax, above the existing sales tax rate can be placed on all sales within the municipal limits.

The best course is to take careful, deliberate action to modify existing ordinances in regards to offenses involving marijuana and modify commercial and business regulations for an existing medical marijuana facility that will likely convert to adult use. If no medical marijuana facilities currently exist in the municipal limits, then the governing body should still take action to prepare for the likely event that a license could be issued by the State to a business in that municipality.

I have prepared and enclosed a short summary of changes from the new constitutional amendment. I will be happy to discuss specific changes to the Missouri State laws and possible changes necessary for the City.

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