Office of Cannabis Management - What is the Law for Local Governments
Thursday, August 26, 2021
What is in the Law
On March 31, 2021, Governor Andrew Cuomo signed the Marihuana Regulation & Taxation Act legalizing adult-use cannabis (also known as marijuana, or recreational marijuana) in New York State. The legislation creates a new Office of Cannabis Management (OCM) governed by a Cannabis Control Board to oversee and implement the law (collectively referred to as "OCM"). The OCM will issue licenses and develop regulations outlining how and when business can participate in the new industry. The OCM will also oversee the State's existing Medical Marijuana Program and Cannabinoid Hemp Program, previously regulated by the Department of Health.
The information below is a collection of key provisions from the MRTA which impact local governments and local officials. For additional information or to contact the Office of Cannabis Management, please visit our website at: www.cannabis.ny.gov or e-mail us at:
Cities, towns, and villages can opt-out of allowing adult-use cannabis retail dispensaries or on-site consumption licenses from locating within their jurisdictions; however, municipalities cannot opt out of adult-use legalization. Possession and use of cannabis by adults 21 years of age or older is legal in New York State.
To opt-out of allowing adult-use cannabis retail dispensaries or on-site consumption licenses, a municipality must pass a local law by December 31, 2021. This means that if a municipality has already passed a local law or resolution prohibiting adult-use cannabis licensees from operating in its jurisdiction, the municipality will have to pass a new local law conforming to the opt-out requirements outlined in the MRTA if the municipality still chooses to opt-out.
If a municipality does not opt-out by December 31, 2021, the municipality will be unable to opt-out at a future date. However, at any time a municipality may opt back in, to allow adult-use retail dispensaries and/or on-site consumption licenses, by repealing the local law which established the prohibition.
A municipality may choose to opt-out of both adult-use retail dispensaries and on-site consumption licenses or just one type of license (e.g. allow retail dispensaries but not on-site consumption licenses). Municipalities are prohibited from opting out of other adult-use license types from locating or operating within their jurisdiction. Additionally, municipalities are prohibited from opting out of medical cannabis or cannabinoid hemp license types. If a town passes a local law to opt-out, it only affects the area of the town outside of any village within the town. County governments are not permitted to opt-out of any adult-use license types.
Any local law opting out of adult-use retail dispensaries or on-site consumption licenses will be subject to a permissive referendum as outlined in section 24 of the Municipal Home Rule Law. This allows voters within the municipality to petition whether or not to approve the local law.
All adult-use cannabis taxes are deposited in the New York State Cannabis Revenue Fund. First, the Cannabis Revenue Fund covers the costs of administering the cannabis programs and the implementing the MRTA, including costs to the OCM's operating costs, increasing Drug
Recognition Expert training, and implementing incubators and workforce development for social and economic equity applicants.
After upfront costs, the remaining tax revenue is distributed into three separate funds:
- 40% to the State Lottery Fund for education
- 40% to the Community Grants Reinvestment Fund to issue grants to non-profit and community-based organizations in communities disproportionally impacted by cannabis prohibition, and other social equity initiatives.
- 20% to the Drug Treatment and Public Education Fund to development and implement statewide public education campaigns and provide substance use disorder treatment programs for youth and adults.
The legislation adds cannabis to the existing Clean Indoor Air Act (qAA), which establishes prohibitions on where cannabis can be smoked or vaporized. The smoking or vaporizing of cannabis is prohibited anywhere smoking tobacco is prohibited. Cannabis cannot be consumed when operating a motor vehicle. Pursuant to the CIAA, municipalities are authorized to make laws that are more restrictive than the CIAA.
Home Cultivation of Cannabis
New Yorkers 21 years of age and older can grow up to 6 cannabis plants in their home for personal use (3 mature plants and 3 immature plants) and a maximum of twelve plants per household (6 mature plants and 6 immature plants). Please be aware the home cultivation of cannabis is not allowed immediately. Pursuant to the MRTA, the home cultivation of cannabis is only permitted after the OCM issues regulations governing home cultivation of cannabis, which will occur within 18 months of the first adult-use retail sale. The MRTA also permits the home cultivation of medical cannabis for certified patients registered in the Medical Cannabis Program. Home cultivation
for certified patients has an accelerated timeline, but is not authorized until the OCM issues regulations, which will occur on or before September 30, 2021.
- Cannabis plants must be kept in a secure place and not accessible to any person under 21.
- Home cultivated cannabis cannot be sold to anyone and is only intended for personal use.
- The use of compressed gas solvents, such as propane or butane, to process or extract home cultivated cannabis, will not be allowed.
- Local municipalities may enact and enforce regulations relating to home cultivation of cannabis, provided no municipality may completely ban or prohibit home cultivation.
Adults over 21 can possess up to 3 ounces of cannabis and 24 grams of concentrated cannabis (like vaporization oil or an edible). Adults may possess up to five pounds of cannabis at their personal residence or grounds. Personal possession over the legal limit and the unauthorized sale of any amount of cannabis is illegal and subject to penalties.