Agencies look to legislature to clear up legalized marijuana rules

(Editor’s note: This is the first in a series about the recent legalization of marijuana in Montana.)

At the stroke of midnight on Jan. 1, 2021, possession and use of recreational marijuana became legal for all adults over 21 in Montana after the passage of two initiatives by Montana voters in the November election. Constitutional Initiative 118 amended the state constitution to allow the Legislature or voters to set the age at which adults can possess and consume marijuana and ballot Initiative 190 legalized the sale and possession of limited amounts of marijuana and levies a 20% tax on the sale of non-medical marijuana in the state.

It’s also going to be nearly a year before commercial sales of marijuana can actually begin.

While recreational marijuana use is now legal, there are still a lot of nuances to how much can be possessed and how it needs to be kept.

Likewise, there are also a lot of aspects of the law that are not well defined, leaving entities such as law enforcement and the Department of Revenue waiting for clarity from the legislature.

Legislature

State Sen. Steve Hinebauch, Senate District 18, went so far as to say I-190 was “terribly written,” as it left so much to be determined. He also criticized the bill’s language appropriating the tax revenue generated from the sale of recreational cannabis, a power reserved to the legislature.

“They directed monies that they’re not supposed to, they did things that shouldn’t have happened, so there’s a lot, we don’t really know everything but there’s about three bills, maybe more than that, that are going to deal with the I-190 stuff,” Hinebauch said.

According to the state legislatures’ website, there are currently at least 47 bills, introduced and un-introduced, that mention marijuana laws in Montana.

Section 35 of I-190 lists where tax revenue raised from recreational marijuana sales should be directed. This includes accounts for the Department of Fish, Wildlife and Parks; conservation programs; and substance treatment programs, something that Gov. Greg Gianforte has previously said he would like funding to support.

There was also a lawsuit filed in Montana District Court in Helena on Nov. 6, 2020 arguing that the whole law should be struck down because of Section 35. It was filed by Wrong for Montana, an organization that has opposed the initiative since it was in the signature-collecting phase, according to Montana Public Radio. No ruling has been made in the issue. The same group filed a similar complaint with the Montana Supreme Court last October to stop the initiative from getting on the November ballot, but the complaint was rejected by the court.

Other aspects of the law that Hinebauch said he and his colleagues will be taking “a pretty good look at” include what regulations local governments can implement, as well as restrictions on advertising. Under I-190 as it stands at this time, local governments do have some regulatory abilities, including inspection of adult-use dispensaries. It is also noted in the law that “the qualified electors of an incorporated municipality, county, or consolidated city-county may request an election on whether to prohibit by ordinance adult use dispensaries from being located within the jurisdiction of the local government by filing a petition in accordance with 7-5-131 through 7-5-135 and 7-5-137.”

As for advertising, Section 24 of I-190 actually prohibits all advertising of marijuana products. Licensed dispensaries are allowed to maintain a website however, but they cannot include prices or actively solicit customers. State Rep. Matt Reiger (R-HD4) introduced a bill on Jan. 26 that would change that, allowing for electronic advertising.

Law Enforcement

Meanwhile, law enforcement agencies across the state are waiting for clarification on how to address the issues related to marijuana use that the law does not allowed for. The law explicitly states that though recreational use of marijuana is legal, operating a motor vehicle while under the influence of marijuana still isn’t.

Dawson County Sheriff Ross Canen noted this is one of the aspects law enforcement needs more direction on, as there is currently no statistical standard set to determine when someone is legally “under the influence.”

He also noted that there is no method to test when someone is suspected of driving with marijuana in their system.

“There’s no breath test like there is with alcohol, so it’s going to be a little weird that way to talk about putting a numerical value on it,” Canen said. “There’s still some legal stuff that has to be worked out there.”

Some legal restrictions the law does outline include that marijuana cannot be used in a public space and marijuana plants grown in the home must be kept in a lockable area that cannot be viewed unaided from a public space. Violations of these restrictions can carry fines up to $250, as well as the forfeiture of the marijuana. Possession is only legal for adults age 21 and older and the amount that can be possessed at one time is limited to one once, or eight grams in a concentrated form, and cannot be transported across state lines.

Another grey area Canen noted concerns how someone can legally acquire a marijuana plant to grow in their private residence. The law as it stands now allows for a person to own and grow up to four marijuana plants in their private residence, however the law does not state if the sale of the plant itself is legal. There are definitions for “mature marijuana plant” and “seedling” provided in the initiative, but there is no language indicating if these items can also be sold as commercial commodities.

Department of Revenue

Then there’s the Department of Revenue, which is also watching the legislature. As the agency that will be charged with regulating, licensing, inspecting and collecting the taxes from commercial dispensaries, the DoR’s duties could change depending on what laws the legislature moves forward on.

“This is an ongoing process, and the Department of Revenue continues to work with the Legislature and Governor Gianforte on preparing for the implementation of I-190,” noted DoR public information officer Sanjay Talwani.

During his confirmation hearing before the Senate Tax Committee, DoR’s new director Brendan Beatty noted that implementing the department’s responsibilities is an “ever moving target.” He explained that the department’s goal is to implement legalized marijuana sales in the safest manner possible while also determining how to implement the tax provision.

“We’re in this state of flux right now where I’d be surprised if I-190 as it was written turns into the actual law that my agency has to implement word-for-word,” Beatty said.

While the law continues to go through the legislative process to make more of its function more clear, there is also a clock ticking away in the background. Under the law, the DoR must start accepting license applications no later than Oct. 1 and commercial sales will be allowed to begin in January 2022. Beatty noted that the deadlines are a challenge, as it doesn’t give much time for the department to adjust to legislative changes to the law, but he is optimistic that it can be done.

“The timeframe is a big hurdle. October 1 looks like tomorrow on my calendar, I don’t know about anyone else’s, but we will, under my leadership, do everything possible to do what this body tells us to do,”Beatty said.