Earlier this month, the Representative Town Meeting considered an ordinance to ban the sale of recreational marijuana in Westport. (Currently, only medical marijuana is legal in Connecticut.) The motion was defeated, 18-16, after more than 3 hours of debate.
After the vote, 14 RTM members who voted against the proposal sent this email to “06880”:
Westport’s most recent RTM meeting included consideration of an ordinance that sought to ban the sale of recreational marijuana, despite the fact that it is already – and remains — illegal in Connecticut and Westport.
For reasons that persuaded the majority of the RTM, any ordinance passed in anticipation of a future state decriminalization statute would be speculative, premature, and passed now for no reason that could achieve even a modicum of extra protection for the town of Westport.
As explained below, it turned out that the proposed legislation was deeply flawed and poorly conceived.
Some states have legalized marijuana based on the view that legalization could ensure that the ingredients are standardized to make it safer, so it is not cut with unsafe or excessively strong or dangerous ingredients. Connecticut, other states, and the federal government have been considering whether the laws should be changed.
Many states have permitted an opt-out provision, permitting individual towns to decide to limit retail sales.
To date, the versions of the marijuana decriminalization legislation submitted to the Connecticut legislature also included local opt-out provisions for retail sales.
The RTM’s final debate on this proposed ordinance to ban retail sales of marijuana made it clear that there is significant desire to restrict or prevent the sale of recreational marijuana retail sales in our town when, and if, a decriminalization statute is passed.
However, under no scenario would any such decriminalization statute afford any Connecticut town the right to make marijuana illegal for use. The legal concept of state preemption of municipal and town ordinances would clearly prohibit that.
The town attorney spoke at the RTM meeting and provided his opinion that the proposed ordinance, as written, was problematic. He was unable to testify in support of the petitioners’ defective ordinance. He noted that, under the law, there is something called the preemption doctrine, which means that any state law would preempt a town ordinance that contradicts it. So, for instance, if the state legalizes marijuana, there is nothing Westport can do to make it illegal.
However, if the state statute expressly permits towns to decide how many retail stores for marijuana there should be or whether there should be any at all, then towns such as Westport would be empowered and permitted to limit or prohibit retail sales.
Moreover, there is typically a period of time between when a state statute is passed, and when it becomes enacted and has the force of law. With respect to the legalization of marijuana, in Connecticut, it is anticipated that there will be an 18-month to 2-year interregnum between passage and enactment. This will give Westport plenty of time to evaluate what the new law says, and how Westport can protect itself with the right kind of ordinance.
Passing such an ordinance now, however, is a bit like shadow boxing; we really have nothing to swing at and hit, as the legislation we are trying to address has not been passed yet.
Moreover, given that we will be afforded abundant time to address retail sales in the event the decriminalization statute is passed, before it becomes enacted into law, it makes no sense to swing in the blind now. We have insufficient details about what the eventual decriminalization legislation would say, and/or whether it will even pass. Therefore, any attempt to pass legislation in such a knowledge vacuum would result in a potentially deeply flawed and inaccurate ordinance.
That is not how responsible RTM legislators should proceed.
An ordinance is a law, so it must be legally viable. Some RTMers who voted for this ordinance said they recognized that it would be completely ineffective, but thought it would be “symbolic.”
Legislators who take their role seriously cannot pass legislation that they know to be ineffective and unenforceable, simply because it “feels good.” Symbolic votes are preserved for “sense of the meeting” votes; they should not be used for legislation.
At the hearing, the petitioners also acknowledged their proposed ordinance was flawed when they realized it accidentally outlawed a derivative substance, CBD, that is perfectly legal.
Additionally, the ordinance had what many perceived to be due process problems. Instead of permitting the police to issue a citation for a violation and then a hearing with all afforded due process rights in court, the proposal politicized the process, permitting a politically elected official, the first selectman, to appoint a hearing officer – even a biased one — to be the judge and jury.
The “officer” would not have to have any legal background or expertise or even personal qualifications, would not have to follow the Connecticut Rules of Evidence or Civil Procedure, would not be required to be objective and unbiased, and the ordinance provided no means to seek recusal for bias or conflict of interest, etc.
Westporters believe in due process rights, and in protecting the legal rights of all, including the falsely accused, as well as the properly accused. This weakness in the petitioners’ proposed ordinance needs to be changed to permit the accused to have any violation citation to be initially heard in court, given the serious reputational and career harm to be had from such a citation for narcotics sales.
As a result of these shortcomings, the RTM did not pass this ordinance last week. However, with the right ordinance — without so many legal and due process flaws – brought forth when and if the state actually passes the decriminalization statute, the RTM may then (more appropriately) revisit this issue.
Many of the 18 members who voted against this particular ordinance are not opposed to a ban on retail sales of recreational marijuana in Westport, but recognized that, as our town attorney explained, this poorly constructed ordinance would not be legally viable.
Westport has already restricted the sale of marijuana. The town’s Planning & Zoning Commission put in place strict zoning regulations that allow only the sale of medical marijuana in specific places. This highly proscriptive zoning restriction does not allow for recreational sales at these places. Despite scare tactics to the contrary, there is no mechanism for the approved medical facilities to suddenly become recreational facilities if the state were to permit the sale of recreational usage.
Whether you are for or opposed to the statewide legalization of recreational marijuana, you can rest assured that we RTMers will fight hard to ensure that we have a say as to whether it is something that we want here in Westport.
Once the statewide legal status is sorted out, the RTM will consider a better-crafted ordinance. For the time being, however, we must all remember that recreational marijuana is still illegal here and in all of Connecticut. Scare tactics aside, there is zero doubt that, should that legal status change in the future, Westport will have more than ample time to pass any necessary, legally permissible, local legislation.
Wendy Goldwyn Batteau