March 24, 2019

In the weeds on weed

Proposal to legalize recreational marijuana in New York raises many unanswered questions

Photo provided by Cortland County Sheriff's Office

This image shows a field of marijuana plants found by law enforecement in Homer in 2016.

A hundred days wasn’t a lot of time to answer all the questions around legalizing recreational marijuana.

The bill Gov. Andrew Cuomo proposed in his 100-day agenda encompasses 60 sections rescinding some criminal laws, adding others banning unlicensed sales, creating a regulatory structure, tax and revenue mechanisms and tools communities can use to oversee the sale and consumption of a substance that would otherwise be classified a Class 1 hallucinogen.

It creates a micro-loan fund to foster the industry, laws for treatment programs and ways some communities can opt out of sales of the product.

But community leaders say they lack tools to enforce some of them: a way to measure THC content of a driver a police officer suspects is impaired; a way to recognize whether one is in the middle of a THC high or something else; time to creating zoning regulations; or to acquire police dogs trained to ignore cannabis when they sniff for drugs.

Even advocates and sponsors of the bill say 100 days isn’t enough time to work out the kinks and create the tools needed to oversee it.

Here are some of the issues behind legalizing recreational marijuana, and what information exists.

What other states have done

Recreational marijuana has been legalized in California, Colorado, Nevada, Washington, Oregon, Alaska, Vermont, Massachusetts, Maine and the District of Columbia.

These are some of the ways these states have regulated it:
• Purchase age — Must be 21 to purchase it.

• How much people can possess — States vary, both how much one can have on their person and at home.

• Who can sell it — Only state-licensed facilities can sell marijuana. People who grow marijuana at their residence cannot sell the marijuana, but in some states can give another adult a plant or a certain number of ounces.

• Public use — It’s prohibited.

• Packaging requirements— Some states call for it to be sold in a childproof and non see-through bag.

Law enforcement

Police agencies aren’t ready for the shift, says Cortland County Sheriff Mark Helms.

“Right now law enforcement isn’t ready,” he said. “Our governor didn’t give us a chance to be ready.”

The county would no longer be able to use its dogs for drugs, Helms said. The dogs are trained to detect marijuana and other drugs, but do not differentiate between marijuana and other drugs when they detect it.

That could open the police agency to two problems:
• Civil suits as the dogs could damage something when they scratch. “If it is an illegal substance, we are protected under the law — qualified immunity — we don’t have to worry about that,” sheriff’s Capt. Rob Derksen had said.

• Inappropriate searches. “If now the indication is based on a legal substance, it would give us false probable cause,” he said.

Helms said he also can’t afford to train a new dog that wouldn’t be alerted to marijuana. “I just don’t have the money right now,” he said.

Cortland County also lacks enough drug recognition experts who can tell the difference between a THC impairment and six other types of drugs, Helms said. The county has two — one with SUNY Cortland police and a state trooper — and a Cortland police officer is training as a third.

Helms said he hasn’t heard anyone talking about regulating THC, the main psychoactive chemical in marijuana. Its potency varies, much like alcohol, and can affect people in different ways.

“How much marijuana in your system makes you have impaired judgment?” he said. “They haven’t come out with that or how we’re going to measure that.”

The economics

Janice Degni, the hemp expert for Cornell Cooperative Extension of Cortland County, would know more about growing the biologically similar marijuana than most professional growers. But she could not comment because Cornell Cooperative Extension has banned its experts from discussing marijuana publicly.

However, the crop has become a $7 billion industry in states where it was legalized. In fact, medical marijuana is already a $40 million industry in New York.

At $12 to $15 a gram retail, or $2 a gram wholesale, a number of industry experts suggest it could expand to $24 billion to more than $30 billion by 2025. The greater Cortland area is farm country, and police have more than once harvested an illegal crop.

Health considerations

“Public health opposes the regulation,” said Catherine Feuerherm, director of the Cortland County Health Department. “I don’t feel there is science to justify the regulation of marijuana.”

THC can impede brain development in adolescents and young adults, Feuerherm said. It can also lead to cardiac and lung health problems.

“Marijuana has become accepted in mainstream America,” Feuerherm said. Cigarettes were, too, at one point. “Science has proven it’s lethal to your health,” she said.

Alcohol was once accepted as a social behavior. “Now science finds alcohol leads to many different diseases,” she said. Gambling now comes with addiction warnings, too.

“People jumped into decisions perhaps without truly thinking things through for monetary and political gains,” Feuerherm said.

Helms is also concerned about marijuana’s affect on health. Marijuana has two major types — cannabis sativa and indica. Sativa causes a mellowing effect, Helms said, but indica can have effects similar to LSD.

“The people who are all for it probably don’t know the difference,” Helms said. “They don’t see what we’re seeing.”

Community control

Cuomo’s proposal allows counties or cities with populations of more than 100,000 to opt out of allowing the sale of marijuana, but Cortland County is too small to qualify.

If the law passes, Cortland County would have no regulatory role, said county Planning Department Director Dan Dineen. Regulation would be left to individual municipalities, which could limit activity through zoning laws — if they review their laws.

“It would be similar to what a lot of municipalities have with bars and taverns, where they won’t allow them within 500 feet of an existing establishment or they can’t have one within a certain distance of a church or school or playground,” Dineen said.

Homer Village Mayor Darren “Hal” McCabe said he would be interested in similar regulation and would like to see legalization implemented the way Massachusetts did.

“Ideally, if you want to have a dispensary, you apply to the town or village or wherever you want it to be and they review and decide if it should move forward,” he said. The municipality would consider the location’s proximity to schools or playgrounds, and then the application would move up to the state level for final approval.

New York doesn’t have that system in place, McCabe said, and he does not think the state is ready to pass the law.

McCabe has attended meetings with officials from the Governor’s Office, and they could not answer many questions.

The opt-out provision is also a concern, he said, because some cities may want to benefit from the marijuana sales tax, but couldn’t if the county opts out.

“There are a lot of unknowns and it probably should not get done to be in the budget by April 1 because there are more questions than answers,” McCabe said.

The tax revenue

Cuomo has proposed three taxes on recreational marijuana: on the cultivation of cannabis; its sale to a retail dispensary by a wholesaler; and an additional 2 percent sales tax to be distributed locally.

However, the New York State Association of Counties said 2 percent is insufficient for counties it says would then have to add resources to ensure public safety.

The association urges the state to increase the local sales tax to 4 percent.

According to a report by the state association of counties, the state Department of Taxation and Finance estimates that potential tax revenue in the first year of legalization could range from $248.1 million to $493.7 with a 7 percent tax rate or from $340.6 million to $677.7 million with a 15 percent tax rate.

“Revenue from this marijuana sales tax would be used to offset county costs associated with legalization,” states the association in a Feb. 27 news release.

McCabe supports legalizing marijuana and would want the village to benefit from the sales tax, but wants the tax to include a 3 percent “impact fee,” to fund additional road patrols or training fees police would need to curb impaired driving.

Massachusetts taxes marijuana sales at a combined 17 percent rate, and cities and towns hosting the retailers can add a local sales tax of up to 3 percent.

Of the 17 percent, 6.25 percent goes to the state general fund and 10.75 percent excise tax goes to a Marijuana Revenue Fund, which the Cannabis Control Commission regulating the industry.

Federal complications

If marijuana is legalized in New York, it remains an illegal substance at the federal level, said Assembly Member Barbara Lifton (D-Ithaca). She’s a co-sponsor of the measure but wants more time to study it before enacting it.

Federally chartered banks would not be allowed to deal with money coming from transactions, she said, she said. So retailers couldn’t create a bank account at federally chartered institutions.

Also, a marijuana user — or seller — would need to be cautious when crossing state lines with the product, because what might be a legal amount or package in one state might not be legal in another.

Lawmakers’ views

Assembly Member Gary Finch (R-Springport) and Sen. Jim Seward (R-Milford), oppose legalizing recreational marijuana.

Finch sees it as a gateway drug, citing a report he heard that 30 percent of all people who try marijuana try stronger drugs, such as opioids.

“I see what the danger of heroin is doing to our younger people,” he said.

Seward opposes recreational marijuana, but supports legalizing medical marijuana.

“Instead of turning to opioids, they turn to marijuana,” Seward said. “There are medical advantages, but that’s under a doctor’s prescription. It’s much more under control.”

“I have real concerns about the legalization of recreational marijuana. I hear so many concerns from the law enforcement community as well as those who are on the front lines of fighting addictions,” Seward said.

Lifton is also concerned about how to keep marijuana away from children, even with a 21 purchase age.

“We have to drop the idea of recreational marijuana, we don’t say recreational alcohol,” Lifton said. “It makes more sense for people to realize it is a drug, like alcohol, and needs to be treated seriously.”

Staff reporters Shenandoah Briere and Jacob DeRochie and Senior Reporter Catherine Wilde contributed to this report.

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