Illinois General Assembly Passes Recreational Marijuana Bill

Illinois General Assembly Passes Recreational Marijuana Bill

  Tuesday, June 04, 2019    Julie Tappendorf

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The Illinois General Assembly was quite busy last week, passing legislation legalizing the recreational use of marijuana, expanding gambling, putting forth a ballot question on modifying the state income tax provisions of the Illinois constitution, passing a budget, among many other bills. It is expected that Governor Pritzker will sign these bills into law. 

Although all of these will have an impact throughout the state, the legalized marijuana bill (HB 1438) may have the most impact on local governments. We had reported previously on an earlier draft of the recreational marijuana bill but the bill that passed both houses was substantively changed from that first bill. 

The bill allows state residents over the age of 21 to possess up to 30 grams of cannabis beginning January 1, 2020. Personal cannabis use will be allowed in most private residences, but not in prohibited areas including any public place or in close physical proximity to underage persons. An earlier proposal allowed households to grow up to five cannabis plants, but this new law would limit home cultivation to medical cannabis patients.

So, how does the bill affect local governments?

Will your Community Allow Cannabis Businesses?

The bill allows local governments to ban or significantly limit cannabis businesses in their jurisdiction, including dispensaries, cultivation centers, craft growers, processing organizations, and transportation organizations. Unlike in earlier proposals, the new law would not impose a time limit or require a referendum to adopt these restrictions.

How will your Community Regulate any Allowed Cannabis Businesses?

The bill allows local governments to adopt (1) reasonable zoning ordinances that do not conflict with the Act; and (2) ordinances and rules governing the time, place, manner, and number of cannabis businesses consistent with the Act.

Will your Community Allow Cannabis Lounges?

The bill grants local governments broad authority to authorize and regulate privately-owned facilities where cannabis and cannabis products may be consumed on-site (i.e., “cannabis lounges”) similar to hookah lounges.

Will Your Community Tax Recreational Cannabis?

Both home rule and non-home rule municipalities can adopt ordinances to impose a local tax on the operation of a cannabis dispensary. The rate of tax cannot exceed 3% of the dispensary's gross receipts from the sale of non-medical cannabis. If imposed, the tax may only be imposed in 0.25% increments. The tax will be collected and enforced by the Department of Revenue, which is entitled to retain 1.5% of the amount distributed to each municipality as an administrative fee.

How will your Community Engage in Crime Prevention?

In a change from prior proposals, the Cannabis Regulation Fund will now transfer 8% of the state tax revenue to the Local Government Distributive Fund (LGDF) to fund crime prevention programs, training, and interdiction efforts, including detection, enforcement, and prevention efforts, relating to the illegal cannabis market and driving under the influence of cannabis.

How will your Community Prosecute Cannabis Use and Possession?

While local ordinances cannot prohibit home cultivation for medical use or unreasonably prohibit personal cannabis use, local governments can regulate these activities consistent with the Act and should consider adopting ordinances enforceable through municipal prosecutions.

What Law Enforcement Records Should be Automatically Expunged?

In a significant change from prior proposals, expungements will now take place in three different processes: petitions (for Class 4 felonies), pardons from the Governor, and automatic expungements (for offenses of simple possession of no more than 30 grams, in certain circumstances). Many of the records will relate to municipal code violations, which will be required to be expunged according to a schedule described in the bill that will give municipalities until January 1, 2025 to expunge records that precede January 1, 2000.

How will you Manage Recreational Cannabis and your Employees?

Employers will likely want to update their personnel policies once the new law becomes effective. Employers will have the authority to adopt zero tolerance policies or other policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace provided that the policy is applied in a nondiscriminatory manner. In addition, employers will have the power to discipline or terminate an employee for violating an employer’s employment policies or workplace drug policy, subject to an appeals process. An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks. Additionally, the law prohibits discrimination against employees for use of “lawful products” like cannabis during nonworking and non-call hours.