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Wednesday, November 20, 2019

Local Governments Prepare Responses to Cannabis Trailer Bill

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.


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.

Automatic Expungements

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


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