During last week’s veto session,
the General Assembly approved a “
trailer bill”
making technical and other changes to the legislation passed earlier this year
authorizing recreational cannabis in Illinois. While the trailer bill still
awaits the Governor’s signature as of this writing, local governments should start
thinking about how the bill may affect their responses to recreational
cannabis.
Cannabis Businesses
Regulations
On-Premises Consumption
The trailer bill clarifies that municipalities
may authorize on-premises consumption at a cannabis dispensary or at a “retail
tobacco store” as defined in the Smoke Free Illinois Act. Many cigar lounges and
hookah lounges are considered “retail tobacco stores.” The amendment ends
speculation about whether a municipality could authorize on-premises cannabis consumption
at a typical bar or restaurant and confirms that only authorized dispensaries
and retail tobacco stores can have on-premises consumption. Importantly, the
amendment would not change the authority of municipalities to prohibit or
strictly regulate on-premises cannabis consumption.
Cannabis Business Definitions
The trailer bill also adds
“infusers” to the definition of “cannabis business establishments,” confirming
that local governments can adopt ordinances governing time, place, manner, and
number of cannabis infusers, in addition to other cannabis business
establishments.
Cannabis Taxes
Dispensary Sales Tax
From the tax perspective, the
trailer bill would allow municipalities and counties to file their certified cannabis
sales tax ordinances with the Department of Revenue on or before:
April 1 for
enforcement beginning July 1; or
October 1 for
enforcement beginning January 1.
Under the original law,
enforcement of local cannabis sales taxes would not have started until
September 1, 2020 at the earliest. While the trailer bill advances the start of
local cannabis sales taxes, tax enforcement still does not coincide with the
start of authorized cannabis sales on January 1, 2020.
Home Rule and Non-Home Rule Sales Tax
While food for off-premises consumption is typically subject
to a lower one percent sales tax, the trailer bill confirms that “food
consisting of or infused with adult use cannabis” would be subject to the ordinary
home rule or non-home rule sales tax rate.
Local Enforcement
Ordinances
Local governments may want to review their ordinances to ensure consistency with the state’s new cannabis laws, and to
enforce appropriate cannabis laws locally through adjudications or circuit
court. The trailer bill addresses a few issues local governments should consider
for their own ordinances.
Cannabis Paraphernalia
Under the trailer bill, adults
will be able to possess and use cannabis paraphernalia, in addition to cannabis
for personal use, beginning January 1, 2020. Some municipalities have locally
adopted provisions of the “Drug Paraphernalia Act” prohibiting most drug
paraphernalia possession, and the trailer bill amends the Act to exclude
“cannabis paraphernalia” from the definition of “drug paraphernalia.” If this legislation is approved, local
governments should make sure their drug paraphernalia ordinances are consistent
with state law.
Cannabis Use Prohibited in Parks
Using cannabis in any public
place is prohibited, except in a dispensary or retail tobacco store authorized
by a local government. “Public place” means any place where a person could
reasonably be expected to be observed by others, including all parts of local
government buildings. The trailer bill includes amendments explicitly making
all local government parks, recreation areas, wildlife areas, or playgrounds a
“public place” where cannabis use is prohibited.
Advertising
State law restricts cannabis
business advertising, including advertising near schools, playgrounds, and
other listed sensitive places. However, the trailer bill confirms that
“advertising” does not include the display of exterior signage displaying only
the name of the licensed cannabis business.
The trailer bill does not change
the schedule for law enforcement agencies to automatically expunge records for
certain minor cannabis possession offenses. The first deadline of January 1,
2021 requires expungement of records created on or after January 1, 2013 and
prior to June 25, 2019.
The trailer bill does confirm
that, in response to an inquiry for expunged records, the law enforcement
agency should reply as it does in response to inquiries when no records ever
existed; however, the agency must provide a certificate of disposition or
confirmation that the record was expunged to the individual whose record was
expunged if such a record exists.
Employment Policies
Public Safety Employees
The Cannabis Regulation and Tax
Act does not authorize law enforcement officers, corrections
officers, probation officers, or firefighters to use cannabis while on duty. The
Right to Privacy in the Workplace Act prohibits
discrimination against all employees for the use of “lawful products,”
including cannabis, during non-working and non-call hours. Employees can be
awarded actual damages, costs, and attorney’s fees for willful and knowing
Right to Privacy Act violations.
The trailer bill would amend the
Cannabis Act to state that “nothing in this Act prevents a public employer of law
enforcement officers, corrections officers, probation officers, paramedics, or
firefighters from prohibiting or taking disciplinary action for the
consumption, possession, sales, purchase, or delivery of cannabis or
cannabis-infused substances while on or off duty, unless provided for in the
employer's policies.” While nothing in the Cannabis Act prevents a
public employer from disciplining the listed public safety employees for
off-duty cannabis use, the trailer bill would not change the protections
provided in the Right to Privacy Act.
Arguably, the General Assembly
did not intend to adopt the trailer bill language only to have it rendered
meaningless by the Right to Privacy Act. However, public employers should
consult their attorneys before adopting policies that discipline the listed
public safety employees for use of cannabis during non-call and non-working
hours due to potential liability under the Right to Privacy Act.
In addition, the trailer bill
would prohibit discipline for the listed public safety employees based solely on the
lawful possession or consumption of cannabis by members of the employee’s
household. The bill would also confirm that the Cannabis Act does not limit the
right to collectively bargain the subject matters contained in the Cannabis
Act.
Random Drug Testing
If passed, the trailer bill would provide that
the Cannabis Act will not create or imply a cause of action against an employer
based on its reasonable workplace drug policies, including:
subjecting
employees or applicants to reasonable drug and alcohol testing;
reasonable and
nondiscriminatory random drug testing; and
discipline,
termination of employment, or withdrawal of a job offer due to a failure of a
drug test.
This most-recent proposed legislation will
hardly be the last word on cannabis, so stay tuned to Ancel Glink’s
Municipal
Minute and
Workplace Report blogs
as courts and the General Assembly continue to develop the state’s new cannabis
laws.
Authored by Daniel J.
Bolin and the Ancel Glink Cannabis Response Team
