Massachusetts Medical Marijuana Law

Breaking: Attorney General Strikes Down Wakefield Ban on Dispensary

Hazy Legal Landscape Providing Angst to Town Planners

Massachusetts voters overwhelmingly approved the Medical Marijuana Ballot Initiative/Question 3 (click for full text), opening the door to the opening of at least 35 medical marijuana dispensaries throughout the state in 2013. But, the bigger question is whether the same voters and town leaders will support the opening of dispensaries on their own street corners and downtown areas. Many towns and cities are already gearing up for a fight over the locations, as one marijuana law firm is already scheduling seminars on how to open up dispensaries in Framingham. In litigious Massachusetts, we can certainly expect aggrieved abutters to challenge the opening of what they call “pot shops” next to their residences and businesses. The actual opening of marijuana dispensaries could be years away due to litigation and opposition.

Up To 35 Marijuana Dispensaries in 2013

The ballot law authorizes the opening of up to 35 dispensaries in 2013, and the Department of Public Health retains authority to open more later if demand is there. The law requires that at least one dispensary must be located in each of Massachusetts’ 14 counties, but caps each county at no more than 5 locations. The law seeks an accelerated rollout of dispensaries. Treatment centers can file applications as early as January 1, 2013, and open up to 120 days later, subject to the rollout of regulations by the state Department of Public Health.

Possible Target Locations

Based on size, county seat, and demographics, likely locations for marijuana dispensaries in Eastern Massachusetts would include: ((This is my own opinion/analysis.))

Boston, Roxbury/Dorchester/Mattapan, South Boston (Suffolk County)
Cambridge, Lowell, Framingham, Marlborough, Waltham, Woburn (Middlesex County) ((The location of dispensaries in Middlesex county — Massachusetts’ most populous county — will be a huge battle.))
Lawrence, Salem, Peabody, Lynn (Essex County)
Dedham, Quincy, Brookline, Franklin (Norfolk County)
Brockton, Plymouth, Middleboro (Plymouth County)
Taunton, New Bedford (Bristol County)
Worcester (Worcester County)

A Smoky Legal Landscape

The ballot provision, however, is very murky as to how cities and towns are supposed to handle the potential influx of dispensaries. This is causing town leaders to scramble for legal guidance as to whether they should either attempt to block locations wholesale or enact special zoning districts regulating the placement of dispensaries.

As for any attempt to block the opening of marijuana centers, the question will have to be answered by the courts as the law is silent as to whether municipalities have this power. The legal issues surrounding municipal zoning and siting of medical marijuana dispensaries will likely follow similar cases involving methadone clinics, alcohol treatment centers/sober houses and even adult entertainment venues — all uses which are legal, yet subject to reasonable zoning governance. Additionally, treatment centers could seek protection from the American’s With Disabilities Act and other disability laws which protect cancer, HIV, glaucoma and other qualified patients who are entitled to receive medical marijuana.

I am of the opinion that a municipality cannot enact an ordinance or by-law which will block a marijuana dispensary from opening in town as long as the dispensary has complied with all DPH regulations. The town, however, can utilize its zoning powers to regulate where in town such a dispensary can be located, so long as the town does not enact illegal “spot zoning” in so doing.

While medical marijuana may have passed fairly easily on Election Day, it will probably be some time before Massachusetts sorts out all the legal issues as to where these dispensaries should go.

I am going to keep this post updated with news articles and posts about the new law and reaction to it, below.

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Richard D. Vetstein, Esq. is an experience Massachusetts zoning and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at info@vetsteinlawgroup.com.

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Concern Over 60 Day Supply Provision & Federal Ban On Pot

Burned up Massachusetts landlords are fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a marijuana dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws.

Skip Schloming, executive director of the state’s Small Property Owners Association, expressed deep concern about the 60-day supply provision:

“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”

The SPOA called for a 6 month delay in implementing the law.

I hate to be a “buzz kill” for medical marijuana users, but I believe the landlords have a legitimate gripe. In the landlord-tenant context, landlords own the property and remain primarily responsible for what goes on in their apartment buildings. I’m no weed expert, but imagine a small studio apartment loaded with a veritable jungle of pot plants — a prospect which would frighten any residential landlord for a number of reasons.

First, a medical marijuana grower could be targeted for burglarization. If they are truly sick and broke enough to qualify as home growers, then they would be equally vulnerable to pot bandits stealing their stash.

Second, maintaining marijuana cultivation requires specialized equipment not necessarily compatible with close-knit apartment living. I did some research, and found this website dedicated to hydroponic growing equipment. Growing marijuana plants is fairly sophisticated. Growers need to monitor pH and moisture levels, carbon dioxide outputs and germination of seeds. Failure of this equipment could conceivably cause mold, mildew and other damage to interior units.

Bay State landlords are also concerned about running afoul of federal drug laws as marijuana remains a federally prohibited controlled substance. Landlords are begging Beacon Hill lawmakers to give them the right to refuse to rent to tenants who grow pot for medical use over fears their property could be seized. As reported in the Boston Herald, commercial and residential landlords are right to worry, drug forfeiture attorneys say, because landlords can be charged as conspirators if their tenants are targeted by the feds.

No matter landlords’ concerns, medical marijuana is here to stay in Massachusetts. It will be up to the state Department of Public Health — the same agency rocked by the highly publicized state crime lab fiasco — to enact sensible rules and regulations governing medical marijuana. Let’s hope that the DPH considers the practicalities and logistics for marijuana growing in tight-knit apartment buildings. Strict rules on home growing eligibility are a must. Same for the approval of safe, tested growing equipment. Immunizing landlords from liability for medical marijuana growing or use by tenants would be another good idea.

We will see how it all plays out on Beacon Hill…

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Richard D. Vetstein, Esq. is a Massachusetts real estate attorney who handles landlord-tenant matters and evictions throughout the state. He can be reached at info@vetsteinlawgroup.com.