Amendment 3 Timeline: The Implementation of Adult-Use Marijuana

Amendment 3 includes several key dates as part of the implementation of adult-use marijuana. Since the passage of Amendment 3, some of those dates have already passed. Below is a summary of those key dates going forward from March 1, 2023, highlighting the implementation process.

June 6 2023

DHSS applications for marijuana microbusiness facilities available.

Oct. 4 2023

First group of marijuana microbusiness facility licenses issued.

April 4 2025

Final group of marijuana microbusiness facility licenses issued.

Sept. 4 2023

DHSS begins accepting marijuana microbusiness facilities applications.

Thus, despite the broad protections, cities are not without tools to exercise authority over a wide range of activities related to adult-use marijuana. In particular, cities are authorized to limit or enforce laws relating to the amount of marijuana that a person may possess, the consumption of marijuana in public, the time, place and manner of the operation of marijuana facilities within the city and prohibit comprehensive marijuana dispensary facilities and marijuana microbusiness dispensary facilities.

Personal Possession and Cultivation

To legally possess, consume or cultivate recreational marijuana a person must be 21 years of age or older. Moreover, DHSS may limit the amount of marijuana that may be purchased in a single transaction; however, the limit may not be less than three ounces of dried, unprocessed marijuana or its equivalent. Additionally, while DHSS is prohibited from adopting any rule that requires a consumer to provide a marijuana facility with an ID besides one to determine the age of the consumer, if a person over 21 desires to cultivate marijuana they must obtain a registration card from DHSS. Once a person 21 years or older obtains the proper cultivation card, they may

June 30 2024 cultivate up to six flowering plants, six unflowering plants, and six “clones” under 14 inches in a locked space not visible by normal, unaided vision from a public place.

Second group of marijuana microbusiness facility licenses issued.

Given that these provisions come directly from Amendment 3, cities may adopt mirror provisions regulating and prohibiting possession by people under 21 years of age, possession above the amount authorized by DHSS, cultivation without having first received approval from DHSS, or cultivation in a manner not permitted by Amendment 3 or rules that may be adopted by DHSS.

Consumption or Smoking of Marijuana in Public

Cities may enact ordinances or regulations governing “the time and place where marijuana may be smoked in public areas within the locality” and the “consumption of marijuana-infused products within designated areas.” The ordinances or regulations governing the time and place where marijuana may be smoked or consumed in public may go as far as outright

548 Days

548 days after DHSS begins “issuing licenses for marijuana facilities,” DHSS may begin issuing non-conversion licenses and non-microbusiness facility licenses. (presumably Aug. 2024) prohibiting the smoking or consumption of marijuana in public as Amendment 3 unambiguously is “not intended to allow for the public use of marijuana.”

To ensure the application of current smoking bans, it is suggested cities either amend existing smoking bans to explicitly include marijuana or adopt new ordinances directly governing the time and place where marijuana may be smoked or infused products consumed.

Time, Place, Manner

Amendment 3 permits cities to enact ordinances or regulations governing “the time, place and manner of operation of a marijuana facility” if the ordinances or regulations are not so unduly burdensome that they rise to the level of an implicit prohibition. Amendment 3’s addition of a definition for 'unduly burdensome' when determining if a city has an implied ban on marijuana facilities transforms an otherwise objective test into a reasonably prudent businessperson standard. The proposed definition of unduly burdensome – applicable to medical marijuana facilities, comprehensive marijuana facilities, and marijuana microbusiness facilities – requires that the ordinance or regulation not “subject licensees or potential licensees to such a high investment of money, time or any other resource or asset that a reasonably prudent businessperson would not operate the marijuana facility.” Prior to adopting time, place and manner ordinances, it would be prudent for cities to speak with legal counsel and review case law regarding the regulation of adult-based businesses and decisions from other jurisdictions that have adopted a similar definition of unduly burdensome in the context of marijuana facilities and businesses. Ordinances regulating the time, place and manner of the operation of marijuana facilities may be enacted utilizing zoning or business licensing authority as is commonly done with other businesses.

Separation of Marijuana Facilities from Churches, Schools and Day Cares

Amendment 3 extends the 1000foot separation requirement currently applicable to medical facilities to marijuana facilities while modifying the existing language in Article XIV, Section 1 regarding how to measure the distance between marijuana facilities and churches, daycares and schools. Amendment 3 incorporates definitions for churches, daycares, and schools and defines how the 1000-foot separation requirement is to be measured. The distances between marijuana facilities and churches, daycares and schools are to be measured utilizing the “shortest path between the demarcation points that can be lawfully traveled by foot.” The applicable demarcation points that the 1000-foot separation requirement is to be measured from depends on whether the medical facility or marijuana facility and the church, day care or school are in freestanding or nonfreestanding buildings. The definitions and explanations on how to measure the separation distance are the same as what DHSS adopted in their regulations regarding medical marijuana.

Outright Prohibition of Marijuana Dispensary Facilities

Amendment 3 does authorize cities to prohibit (1) microbusiness dispensary facilities and (2) comprehensive marijuana dispensary facilities, but only after approval by voters. To do so, the city must place the question of prohibiting the facilities before voters at the November general election of a presidential election year beginning in 2024. This is not a simple majority vote, at least 60% of the votes cast on the question must support the prohibition. Amendment 3 prescribes that the ballot language for the prohibition be:

“Shall (insert name of local government) ban all non-medical microbusiness dispensary facilities and comprehensive marijuana dispensary facilities from being located within (insert name of local government and, where applicable, its “unincorporated areas”) and forgo any additional related local tax revenue? ( ) Yes ( ) No.”

Personnel Matters

Amendment 3 does offer protections to medical marijuana users. Specifically, it states an employer may not discriminate against a person in hiring, termination or any term or condition of employment or otherwise penalize a person” if the discrimination is based on:

1. Status as a qualifying patient or primary caregiver who has a valid identification card –unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.

2. A positive drug test for marijuana of a person who has valid qualifying patient identification card, unless the person used, possessed, or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.

Conversely, the protections do not apply if (1) the employer will lose a monetary or licensing-related benefit under federal law or (2) the employee is in a position in which the use of marijuana affects in any manner their ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification reasonably related to the person’s employment.

Amendment 3 clarifies that it “does not prohibit an employer from disciplining an employee for working while under the influence of marijuana” and “does not prevent an employer from refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions or privileges of employment because that person was working while under the influence of marijuana.” Similarly, cities are allowed to continue to operate drug-free workplaces but must tie the requirement to a potential monetary loss or a licensing-related benefit under federal law. For example, the Drug-Free Workplace Act requires recipients of federal grants maintain a drug-free workplace and that all covered employees (e.g., employees involved in the actions paid for by the federal grant) must abide by the Drug-Free Workplace Program. If the city or a covered employee violates the Drug-Free Workplace Program, the city may be subject to repayment of the grant and additional penalties.

Taxation

As with medical marijuana, regular municipal sales taxes apply to the sale of adult-use marijuana. Moreover, cities are authorized, after approval by voters, to impose an additional 3% sales tax on all tangible personal property retail sales of adult-use marijuana. The question to impose the tax may be placed on a ballot for a general, primary or special election. Should a city impose the 3% local sales tax, the sales tax is collected by the Missouri Department of Revenue like other sales taxes imposed by cities. The additional 3% sales tax is applicable to adult-use marijuana sales only since Amendment 3 did not modify the existing prohibition against additional sales taxes on medical marijuana.

Amendment 3 marks yet another drastic shift in how cities regulate and generally interact with marijuana, marijuana users and entitites involved in the marijuana industry. To best adapt to this shift, cities should carefully study the text of Amendment 3, applicable Federal law, and DHSS regulations to update, when necessary, ordinances and policies currently in place.

Padraic Corcoran and John Mullane are attorneys at Williams & Campo, P.C., who strictly represent cities and other political subdivisions as general counsel and special counsel for litigation, economic development, telecommunications, condemnation and utilities matters.

by Todd T. Smith

Enforcing Amendment 3: Law Enforcement Issues Arising From The New Recreational Marijuana Amendment

The narrow passage of Amendment 3 to the Missouri Constitution in November 2022 legalizes the broad use of recreational marijuana beginning in February 2023. While the amendment does provide some specific directions for police departments and prosecutors, those directives also give rise to new questions and concerns. This article will provide a brief overview of those directions and explore some of the issues likely to arise.

Recreational Marijuana

Under the new amendment, Missourians over 21 years of age have a constitutional right to possess and consume recreational marijuana. While medical marijuana laws remain in place, no medical certification or other form of permit is required for recreational marijuana. Specifically, an adult may possess up to three ounces of marijuana, approximately two and half times what the D-class felony limit of 35 grams had been under §579.015.2, RSMo. The use of related paraphernalia (the amendment uses the term “marijuana accessories”), the right to cultivate marijuana at home with a permit, and the ability to sell marijuana at licensed recreational dispensaries are now all legal. All provisions relating to marijuana contained in Missouri state laws and local ordinances contrary to this amendment are unconstitutional and void, although possession of marijuana technically remains a federal offense. As of this writing, the General Assembly has not repealed the various state statutes criminalizing the use of marijuana and many cities continue to have similar, now void, anti-marijuana ordinances on their books.

Civil Penalties

The amendment does prohibit minors from possessing marijuana, bans smoking and cultivating in public, and prohibits possession of twice the legal limit (which would be six ounces). It is not clear how, without an accompanying state statute or charge code, violations of these provisions will be processed for prosecution. Whatever process is used, each of these offenses is to be punished only by a “civil penalty” with a limited fine amount. For example, a third occasion of possession of twice the limit can be sanctioned with a “civil penalty” of up to a $1,000.00 fine. The amendment does not define “civil penalty,” which has no applicable statutory definition. At this point, the only “civil penalties” would be in municipal court, where violations are considered civil in nature, not criminal in nature. State offenses are all criminal in nature, even misdemeanors and infractions. An early question for the courts will likely be whether an Amendment 3 “civil penalty” merely warrants a written citation or is an arrestable offense where a suspect could then be searched incidental to that arrest and ultimately jailed. Also unclear is when officers can make a felony arrest for intent to distribute controlled substances under 579.020, RSMo., which has no quantity trigger, or how officers are to calculate the mass of marijuana in edibles.

Driving High

The biggest concern for law enforcement is likely to be drivers who operate motor vehicles under the influence of marijuana. The amendment expressly states that it does not authorize such driving but does not actually criminalize the conduct. This leaves to the state and municipalities the task of enacting enforcement provisions and policies related to driving high. For example, the amendment does not prohibit a city from passing an ordinance banning the use of marijuana by anyone in the passenger compartment of a motor vehicle, similar to open container laws. Regardless of what new laws are passed, law enforcement can rely upon the existing driving while intoxicated (DWI) statute, §577.010, RSMo., and 577.001(13), RSMo., that already encompasses drug use in the statutory definition of intoxication for purpose of DWI.

The most burdensome practical difficulty faced by law enforcement is the lack of a standardized quantity of THC agreed to cause impairment, akin to the blood alcohol content (BAC) used in drunken driving cases. While Missouri has embraced the 0.08 BAC limit encouraged by the federal government following extensive scientific research and field testing, there is yet no comparable figure for marijuana in the criminal context (the limit for a federal drug-free workplace blood test is 50 nanograms per milliliter). Part of the reason for not having a limit is that unlike alcohol, typically metabolized at roughly one or two drinks per hour, marijuana is slowly metabolized over a period of days, such that a person can still have a readily detectable amount of THC in their system but genuinely considered not to be impaired. Furthermore, there is presently no rapid field test akin to breathalyzer devices for use with marijuana.

This means law enforcement agencies will need to rely on their veteran officers and deputies who have had Drug Recognition Expert (DRE) training to handle the suspected drugged driving traffic stops involving poor driving. After performing careful field sobriety testing, they will invariably need to get a blood test of the driver’s blood, either consensually or via a search warrant, to prove at trial that indeed it was marijuana that caused the intoxication. Unfortunately, those stops for expired plates or burned-out turn lights with rookie officers and no crime lab report will likely be the cases that are the most vigorously litigated. While normally the blood for crime laboratory drug testing is drawn by medical professionals at hospitals, agencies are exploring alternatives in which paramedics or even law enforcement personnel collect samples elsewhere.

Consulting

Marijuana Search Warrants

Regarding search warrants, the amendment requires an officer to contact the Missouri Department of Health and Senior Services to ascertain if the suspect has a card prior to applying for a search warrant. As of this writing, there is no formal process or hotline for officers to make such a report. If the search warrant is targeted at marijuana, it cannot have a “no knock” execution provision, meaning the officers must announce themselves and wait before making entry. After any search for marijuana, whether pursuant to a search warrant or not, the officer is required to make a detailed report that includes the reasons for the search, whether marijuana was seized, whether any other contraband was seized, whether an arrest was made, and a “description of the tactics used by law enforcement to enter the property.” While the amendment is silent as to the consequences of failing to make such a report, defendants will surely argue that not doing so is grounds for suppressing the drugs from being admitted into evidence at trial under the exclusionary rule. What is clear is that all agencies will be required by the amendment to collect these reports and provide them to the Missouri Attorney General’s Office on a yearly basis, not unlike the existing requirement to provide race statistics on traffic stops.

More broadly, the amendment provides that the mere presence of marijuana “without specific evidence that the marijuana is outside of what is lawful … cannot be the basis of a search.” Thus, unless the suspect clearly is in plain-view possession of more than three ounces, an officer will need reasonable suspicion of another crime such as possession of stolen property or felon in possession of a firearm to conduct a search. As an aside, it also means that all K-9 drug dogs trained to alert to marijuana will need to retire. More troubling, a pressing question for the courts will be whether this limitation on searches applies to a Terry frisk for weapons to protect officer safety.

In the coming months, the questions raised in this article and many others will doubtlessly be taken up by the courts and elected officials. It will be incumbent upon cities and their attorneys to remain focused on these legal developments, be it new legislation or judicial decisions, as they occur in order to properly enforce Amendment 3.

Todd T. Smith is an associate attorney in Lauber Municipal Law’s Jefferson City office. A member of the Missouri Bar since 2011, Mr. Smith earned his J.D. from Drake University and an LL.M. in law and government from American University. A former assistant county prosecutor, he has extensive experience in drug task force operations and felony drug trials. He can be reached at tsmith@laubermunicipal. com.