What to know when pot goes legal

Hopes are high that recreational marijuana is about to be legalized in New York. 

Lawmakers and the governor have finalized a deal that will finally legalize cannabis throughout the state. Late Saturday night, new bill language was introduced reflecting the results of negotiations. Issues with impaired driving had been a sticking point in the final days and hours before introduction. “Like Charlie Brown and the football, you think you finally got it and they come out and yank it out from underneath you,” state Sen. Liz Krueger, the bill’s sponsor, told City & State. “So I was like, ‘No, unless it shows up on the computer as a three-way agreed bill, I'm not saying the deal’s done.’” Krueger said she hopes the bill will get a vote on Tuesday – a day before the budget is due. If it passes and Cuomo signs it (which he has committed to doing), New York would become the 15th state to enter the legal marijuana market. Based on the bill language of the updated Marijuana Regulation and Taxation Act, sponsored by Krueger and Assembly Majority Leader Crystal Peoples-Stokes, it seems that progressives are getting much of what they’ve been pushing for. The details reflect the original legislative proposal from this year rather than Gov. Andrew Cuomo’s executive budget proposal. Here’s what you need to know about what made it in.

How much can I purchase and carry?

According to reports, people will be able to buy and carry up to three ounces of marijuana without any penalty. Many states that have legal pot limit the amount you can buy and carry to one ounce, the same amount that Gov. Andrew Cuomo included in his legalization proposal this year. Although it’s less than the six ounces people are allowed to carry in New Jersey. The exact criminal penalties for carrying more than three ounces still remains to be seen.

What about homegrown?

Under the deal, growing marijuana plants in a private residence will be allowed, something that Cuomo had never included in his own proposals. People will be able to grow up to three plantes – three mature and three immature – with up to 12 per household. This is in line a slight change from the original version of the bill this year, which permitted a person to grow up to six mature plants.

Great! When will I be able to buy product and grow my own?

Unfortunately, even if legislation passed tomorrow, there will still be a wait. Dispensaries would not be able to open up right away, and the process of creating all the specific regulations for the new industry would not happen until after passage. Until those regulations are in place, licenses can't be given, cultivation can’t begin and sales can’t happen. The New York Post reported that sales could begin by the end of 2022. And homegrow will take even longer – it won’t be allowed until 18 months after the first dispensary opens up. Medical marijuana patients, though, would only have to wait six months after the legislation becomes law.

What about pot lounges and delivery?

Both of those are happening too. They were part of Cuomo’s proposal last year, but he removed them from his original executive budget language this year. Although he added delivery back in with a 30-day amendment, on-site consumption licenses did not make it back in. However, the MRTA has long included both, and it seems this is another aspect reflecting what lawmakers had previously proposed. When it comes to on-site consumption, it would be legal to use marijuana, but alcohol can’t be served at the same location.

What kinds of taxes should I expect?

The state would impose a 9% sales tax, with localities able to tack an additional 4% for a 13% sales tax total. There is still some contention, though, about where those local tax revenues will get allocated. As it stands, 3% would go to towns, villages and cities, while 1% would go to counties. And county leaders are not happy with those numbers, arguing they should get a larger cut of the local tax revenue. Dutchess County Executive Marc Molinaro, president of the New York State County Executives Association, told City & State that he would like to see equity in what the state receives in tax revenue, asking for 3% of the total 14% sales tax getting imposed to help cover the increased costs of mental health and substance abuse services. “We don't trust the administration, any administration, that over time, those dollars will get onto the ground in the way that they are effective,” Molinaro said.

How will the state tax revenue be spent?

That has long been a point of contention between Cuomo, who wanted to keep use of revenue flexible, and many lawmakers and advocates, who wanted to see 50% of those funds set aside for community grants to reinvest in areas that have been negatively impacted by past prohibition. This year, Cuomo for the first time proposed a $100 million social equity fund, although it still fell short of what criminal justice and legalization advocates were asking for. In the end, 40% of tax revenue will be set aside for that purpose, with another 40% allocated for school funding and the final 20% for drug treatment and education. But legalization advocates still celebrated the victory. “I think, at the level of 40%, establishes and absolutely watershed precedent for New York state to be devoting such a big percentage of the cannabis tax revenue to directly impacted communities in the way that’s it’s set up in this grant,” Melissa Moore, state director of the Drug Policy Alliance, told City & State.

What about other forms of social and economic equity?

The legislation provides for the creation of a social and economic equity plan, and an incubator program to help qualifying people enter the industry. That includes women and minority-owned businesses, and people from communities that have been harmed by marijuana enforcement in the past. A goal of 50% of licenses issued would go to social and economic equity applicants, who would have access to low- and no-interest loans, as well as the possibility of getting fees waived. “I think that marijuana is offering us a sort of like an example of how do we pass meaningful legislation that genuinely responds to the realities of racism, classism, sexism, etcetera, in our state,” Jawanza Williams, organizing director at the progressive advocacy group VOCAL-NY, told City & State. The bill also creates the position of the chief equity officer who would help create the plan, and ensure compliance with it. This person would author a report every year about how the state is doing in meeting its goals for social and economic equity.

What happens to past convictions?

The legislation builds on the 2019 law passed that further decriminalized low-level marijuana offenses and set up a system to automatically expunge the records of those charged with past offenses that were no longer crimes. The bill language this time basically adds more offenses to the list eligible for automatic expungement, meaning that someone with a record doesn’t need to do anything in order to get a clean slate if their past offenses would no longer be considered crimes. The amended legislation also has provisions for automatic resentencing based on new criminal penalties for those whose offenses would not be considered lesser crimes. This includes people who are currently serving a sentence.

How would the industry be governed?

What about impaired driving, the sticking point?

Determining what constitutes impaired driving, and adequately testing one’s level of impairment and knowing at what level impairment occurs, remains a tricky subject. Getting high and driving is expressly prohibited, and the bill includes new funds for police education and training. However, it also explicitly prohibits the smell of marijuana to be used as probable cause for searching a car. The legislation additionally includes the establishment of an academic study to investigate methods to detect cannabis-impaired driving. Inclusion of this study was one of the sticking points, and differs from the version the governor had proposed, which would have tasked the Office of Cannabis Management, in consultation with the DMV and state police, to create a roadside detection pilot program.

Cities, towns and villages can choose to opt out of retail dispensary and on-site consumption locations, but no one opt out of legalization entirely. They can do so through passage of a local law, subject to approval by the voters through a referendum. Municipalities have until Dec. 31, or nine months after the bill is signed (whichever is later) to opt out. Although the governor had proposed giving this authority to counties and municipalities of a certain size, counties would no longer have any say about opting out of sales and on-site consumption locations.