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DC Council Chairman Mendelson Introduces Equitable Recreational Cannabis Legislation

DISTRICT OF COLUMBIA:  DC Council Chairman Phil Mendelson – along with Council members Kenyan McDuffie, Charles Allen, Brianne Nadeau, Brooke Pinto, Christina Henderson, and Mary Cheh – introduced the most comprehensive, progressive, and equitable legislation to regulate the sale of recreational Cannabis in the District of Columbia.

“This legislation is the culmination of over a year of work by my office and external stakeholders,” Mendelson said. “It creates a comprehensive regulatory framework for the cultivation, production, and sale of recreational cannabis and most significantly, this bill centers reinvestment and opportunity for people and communities hit hardest by the War on Drugs.”

The “Comprehensive Cannabis Legalization and Regulation Act of 2021” differs from previous iterations of recreational marijuana sales bills in that it establishes:

  1. A Social Equity program that mandates at least half of all licenses to be set aside for Social Equity applicants (defined as residents who have been previously convicted of cannabis-related offenses or have lived ten of the last 20 years in areas with high rates of poverty, unemployment and arrests);
  2. A Cannabis Equity and Opportunity Fund to provide financial assistance to Social Equity applicants. This is especially important given that traditional financing options are unavailable for cannabis and especially difficult for social equity applicants. Thirty percent of tax revenues from cannabis sales would be deposited into this fund;
  3. A Community Reinvestment Program Fund that would provide grants to organizations addressing issues such as economic development, homeless prevention, youth development and civil legal aid in areas hardest hit by the drug wars. Fifty percent of tax revenues from cannabis sales would be deposited into this fund;
  4. A robust public education campaign that will inform District residents of the law and focus on responsible use and harm reduction strategies for residents of legal age who consume cannabis;
  5. Automatic expungement of cannabis-related arrests and convictions, and opportunities for resentencing for individuals currently serving sentences for cannabis-related convictions;
  6. Protections for District residents who legally possess and consume cannabis pursuant to the Act so that they do not lose benefits, employment, or access to other critical resources; and
  7. Authorization for banks in the District to conduct business with cannabis licensees, and allowances for local tax deductions for cannabis licensee business expenses.

DCFS And Illinois Courts Refusing To Follow New Cannabis Anti-Discrimination Law: Parents Risk Losing Children Over Cannabis Use Despite Legalization

By Jay Lindsay, CROSSROAD LEGAL

ILLINOIS: On June 25, 2019, Governor J.B. Pritzker signed into a law sweeping new legislation legalizing personal recreational use of Cannabis in Illinois. Under the law, Illinoisans can now use cannabis not only for medicinal purposes, but also recreationally. The law also prohibits discrimination based on cannabis in certain situations. Specifically, the anti-discrimination provision is strategically drafted to avoid cannabis users from suffering negative or adverse impacts in Illinois family and juvenile courts, including actions by Child Protective Services. Despite passage of this law, DCFS and courts remain unwilling to comply with these anti-discrimination rules.

To fully understand why this is important and how it affects Illinois parents, a little background is necessary.

The Cannabis Regulation and Tax Act of 2019

Effective the first day of 2020, Cannabis became legal for personal use in Illinois. The new law is entitled the Cannabis Regulation and Tax Act, and the personal use provisions are found in the Illinois Code at 410 ILCS 705/10-5 et seq. Under the new law, Illinois residents are legally permitted to use and possess Cannabis and Cannabis-related products. There are, of course, limitations.

POSSESSION OF CANNABIS

  • Up to 30 grams of Cannabis in raw form
  • Cannabis-infused product or products containing no more than 500 mg of THC
  • Five grams of cannabis product in concentrated form 

PRIOR INCARCERATIONS

Under House Bill 1438, which ultimately became the new law last year, the Governor has created a clemency process that will ultimately help to exonerate and clear the records of hundreds of thousands of people convicted of minor Cannabis charges. 

  • Automatic expungement for any possession charge of up to 30 grams
  • Potential clemency for possession of 30-500 grams, but only upon petitioning a court to vacate the conviction.

The Marijuana Policy Project estimates that this will result in an estimated 770,000 overturned convictions. This is perhaps the most notable part of the legislation, because it could effectively re-enfranchise almost a million Illinois residents of things like voting and gun rights. Under current law, drug-related convictions can be used as a reason for the Illinois State Police revoking or denying a Firearm Owners Identification Card (FOID).  Likewise, for felony convictions, many people lose the right to vote. Many of these rights are now likely subject to restoration.

Public Support for Cannabis

Before directly addressing the issue of discrimination, it is worth noting that the majority of Illinoisans support legalization. Even in the most rural and conservative reaches of the state, Cannabis is gaining wide-spread acceptance. According to the advocacy group, Legalize Illinois, the following statistics were reported in relation to resident approval of legalization:

  • Chicago: 77% support and 22% oppose legalization
  • Downstate: 58% support and 40% oppose legalization
  • Statewide: 66% support and 32% oppose legalization

Anti-Discrimination Provision

Now that the background and legislative underpinnings are clear, we turn to the problem at hand.  Under the new law, there’s a specific provision that directly applies to family courts and actions by the Department of Children and Family Services (DCFS). The provision found at 410 ILCS 705/10-30(a) outlines the precise ways that the government may not use a person’s conduct under the statute. Below, the statute is broken into three parts for clarity:

Neither the presence of cannabinoid components or metabolites in a person’s bodily fluids nor possession of cannabis-related paraphernalia, nor conduct related to the use of cannabis or the participation in cannabis-related activities lawful under this Act by a custodial or noncustodial parent, grandparent, legal guardian, foster parent, or other person charged with the well-being of a child . . .

. . . shall form the sole or primary basis or supporting basis for any action or proceeding by a child welfare agency or in a family or juvenile court, any adverse finding, adverse evidence, or restriction of any right or privilege in a proceeding related to adoption of a child, acting as a foster parent of a child, or a person’s fitness to adopt a child or act as a foster parent of a child, or serve as the basis of any adverse finding, adverse evidence, or restriction of any right of privilege in a proceeding related to guardianship, conservatorship, trusteeship, the execution of a will, or the management of an estate . . .

. . . unless the person’s actions in relation to cannabis created an unreasonable danger to the safety of the minor or otherwise show the person to not be competent as established by clear and convincing evidence. This subsection applies only to conduct protected under this Act. 

Juvenile Court Act vs. Cannabis Regulation and Tax Act

In a landmark Supreme Court decision, Justice Sandra Day O’Connor wrote, that there is “a fundamental right of parents to make decisions concerning the care, custody, and control of their children.” See Troxel v. Granville, 530 U.S. 57 (2000).

Moreover, the Court wrote, “[t]he liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. See id. at 65. 

It is with this context from the Supreme Court that we next must address how Illinois law treats removal of children for abuse and neglect allegations.

Under the Illinois Juvenile Court Act of 1987, DCFS is charged with protecting minors from abuse and neglect. When there is a credible report of abuse, DCFS will investigate the allegations and, if founded, may remove a child from their home, place them into emergency protective custody, then turn the matter over to the local States Attorney for the appropriate county. At this time, the prosecutor will file a petition to adjudicate the minor a ward of the court. If successful, the child will be placed into foster care, while a provider agency, such as Caritas or Lutheran Child and Family Services (LCFS), will take over managing the casework associated with the matter. A service plan is created, and parents must complete the service plan and meet all requirements of the agency before the children can be returned.

Under the Juvenile Court Act, 705 ILCS 405/2-18(2)(f), the court deciding the matter at the adjudicatory hearing may consider:

proof that a parent, custodian or guardian of a minor repeatedly used a drug, to the extent that it has or would ordinarily have the effect of producing in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence of neglect.

Under the Juvenile Court Act drug is not a per se or automatic reason for removal of children. Drug use must create a “substantial” effect on the parent, to the point that the Department feels that the parent cannot properly care for a child. In practice, this is very different, however. Typically, ANY use will be enough for DCFS to remove a child. Historically, this included Cannabis. 

Breaking it Down

Since there are now two potentially conflicting laws, Courts are left to decide whether or not they will follow the new anti-discrimination provision by simply disregarding evidence of Cannabis use, or whether they will continue to view Cannabis as a drug that supports removal of minor children.

Case Examples from Practice

 The author is a former Assistant Public Defender for a rural county in downstate Illinois. In the first year since legalization, numerous cases have come before the court with little evidence of drug use except minor Cannabis possession or positive THC test results. Consider the following* examples:

  • Young mother has argument with boyfriend, and children are removed due to allegations of domestic violence. After 6 months, all services are complete. There was no evidence of illegal drug use, alcohol abuse or other substance-related issues. While under oath, a case worker testified that the sole reason why the children have not yet been returned to the mother from May 2020 to November 2020 is her positive drug tests for THC. At a hearing, one child was returned to a father, in part due to the fact that mother was alleged to have continued using Cannabis.

Rationale – According to DCFS, the mother had a service plan that required her to remain free from all drugs, including Cannabis; therefore, it is the State’s position that even though Cannabis is legal, she is prohibited from using it.

  • Judge orders young mother to receive overnight visits and have children returned within 30 days, due to minimal nature of the case. DCFS refuses to honor the court’s order, based on allegations that the mother is still using Cannabis. A single positive test for THC from several months earlier used to argue that she is unfit to have the children go home. The court allowed the matter to be continued for another 90 days and decided not to return the child.

Rationale – According to DCFS, there were concerns about the mother using Cannabis, because she is underage (18) at the time, and thus use would be considered illegal.

  • Young mother has a messy home and is accused of being under the influence while caring for her small child. Notably, under oath, the police officer repeatedly referred to discovering evidence of illicit drug use in the home. On closer cross-examination, it turned out the mother had an empty vape pen on her nightstand. No Cannabis was located on the property. The mother did admit to using Cannabis at times, but no evidence was provided to indicate she had used Cannabis that day or that she was in possession of Cannabis. While other reasons were used for removing the children, such as the condition of the home, this was a critical piece of evidence heard by and relied upon by the court.

Rationale – According to DCFS, simply having marijuana paraphernalia in reach of a minor child was sufficient to remove the children, as it indicated a drug addiction.

Facing the Dilemma Head-On

With these examples squarely before us, it’s important to note a few things. First, possession of 10 grams or less of Cannabis by a person under the age of 21 is considered a civil violation, punishable by a fine of between $100 and $200. See 720 ILCS 55/4. In fact, possession doesn’t even reach Class A misdemeanor status (comparable to a first-offense DUI) until a minor possesses between 30 and 100 grams of Cannabis. With this in mind, it’s difficult to understand how DCFS and the courts can deprive a parent of such a fundamental liberty as the right to raise one’s own child over such a minor offense. Likewise, the Cannabis Regulation and Tax Act clearly outlines that Cannabis use should not be considered in these court proceedings. The law makes no exception for age of the user.

Where We Go Next 

Ultimately, the problem is that although Cannabis has been fully legalized for recreational use, judges and DCFS are still very much using Cannabis as the sole reason (or at a minimum, a substantial reason) for removing children from parents. And once removed from their parents, children are often kept in foster care for years. If the parent tests positive for Cannabis even once, the courts and DCFS will invariably argue that the parent is failing to make reasonable efforts and substantial progress toward the return of the child. This key language is used to eventually terminate parental rights for good.

It is imperative that the fundamental liberties of parents in Illinois be protected at all costs. As Justice O’Connor wrote in 2000, the right to raise one’s own children is perhaps the oldest recognized liberty in our country’s history. Indeed, this fundamental right is being breached every day in courtrooms across the state, because the clear text of the law is being ignored. Despite Illinois passing a law that prohibits consideration of Cannabis use or possession in DCFS proceedings and juvenile court hearings, state agencies and judges remain completely unwilling to disregard it. In doing so, one could certainly argue that the courts are re-criminalizing Cannabis. In fact, the outcome is that one can lose their children forever for something that amounts to little more than a civil fine if done underage. Imagine losing your children for burning without a permit or littering.

It’s high time that the Illinois legislature put some teeth in the law by creating some form of penalty for state agencies that disregard the law. It also raises the possibility that some parents may have significant civil actions against the State of Illinois where DCFS and provider agencies disregard the law and remove children due to Cannabis use in the home. Illinois NORML continues to advocate and fight hard for the residents of the state every day.

*Due to confidentiality of juvenile court records, the author is unable to discuss specific cases or names of participants.


Jaye R. Lindsay is the founding attorney for CROSSROAD LEGAL, a general practice law firm based in O’Fallon, IL.

OLCC Creates Podcast Focusing On Oversight Of Oregon’s Recreational Marijuana Industry

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Flavored Vaping Ban Spotlighted in Latest Episode of “In the Weeds — The Ultimate OLCC Potcast”

OREGON:The Oregon Liquor Control Commission has published the latest episode of its occasional podcast, “In the Weeds – The Ultimate OLCC Potcast.”  Episode Four of “In the Weeds” focuses on the THC vaping respiratory illness crisis and Oregon’s ban on flavored THC vaping products.

“In the Weeds” launched in April 2019 using the podcast format to provide more digestible details and nugget-sized information about the regulations and rules governing Oregon’s regulated marijuana industry. The podcast, aimed at OLCC recreational marijuana licensees, their employees and others interested in the legal marijuana industry, is a more conversational approach to explain the expectations and guidelines for operating a legal marijuana business.

“It’s just the three of us – sometimes with a guest – sitting around talking about the rules, which is something we do every day anyway,” said Amanda Borup, OLCC Recreational Marijuana Policy Analyst, and one of the co-hosts of “In the Weeds.  “And although listening to our discussion should be helpful, it doesn’t mean listening to the podcast is a substitute for reading the rules.”

The other co-hosts of the “In the Weeds” podcast are TJ Sheehy, Manager of the OLCC’s Marijuana Technical Unit, and Mark Pettinger, OLCC spokesperson.

“We figured this would be a good way to help people working in the industry understand what is and isn’t allowed in the rules,” said Sheehy.  “People in the industry, whether they’re in the front office or on the farm in-the-field, can listen and hopefully share what they learn.”

The fourth episode of “In the Weeds” includes a discussion about the ban on flavored THC vaping products; a conversation with Steve Marks, OLCC Executive Director, about the vaping crisis and on-going compliance activities.  The podcast also covers changes in the marijuana license application and renewal process.

The podcast is available through SoundCloud as well as on iTunes, GooglePlay, Spotify, and TuneIn.

Pot Fans, Foes Fume As Washington DC tests Limits Of High Life

DISTRICT OF COLUMBIA: Almost a year has passed since it became legal to smoke, but not sell, marijuana in Washington, D.C., and pot enthusiasts and opponents alike are chafing under a compromise that leaves smokers in a haze over how to obtain their weed.

Sales of equipment to grow the plants indoors are booming, bartenders are getting joints as tips and the city council is deliberating whether to license cannabis clubs.

Both smokers and police complain that the city’s ban on sales, imposed by congressional conservatives, are leaving residents to bump up against legal limits around the drug.

“It is kind of the Alice in Wonderland of cannabis legalization. It’s like there’s all these rules and regulations that no one follows,” said Alex Jeffrey, executive director of DC NORML, a marijuana reform advocacy group.

Will DC Be Next with Recreational Dispensaries?

DISTRICT OF COLUMBIA:  Our nation’s capital may well be the next jurisdiction to legalize recreational marijuana dispensaries. And if that occurs, it will inevitably help shape the debate in Congress over marijuana policy.

That is, of course, important for the 658,893 people who live in the District, and the 6,033,737 people who live in the metropolitan area, but it will also be a helpful step in eventually persuading Congress to remove federal impediments to full legalization at the state level.

Every member of Congress, all 435 House members and 100 senators, maintain two homes: one in the home state district where they were elected, and a second in DC, where they spend at least three days each week when Congress is in session. And while many of these elected officials from around the country currently hold exaggerated views of the dangers of marijuana smoking, simply living here and seeing the sky doesn’t fall when prohibition is ended and marijuana is legalized, is likely the most effective way for us to continue to build support for legalization in the Congress. There is nothing more persuasive than personal experience.

How New Blood In Washington, DC Could Impact The Marijuana Industry

DISTRICT OF COLUMBIA:  Comings and goings by two top federal officials this week could have big repercussions for the burgeoning marijuana industry.

On Thursday, the Senate confirmed Loretta Lynch as U.S. Attorney General, five months after her nomination by President Barack Obama. Meanwhile, the Justice Department said Tuesday that Michele Leonhart will step down from her role as head of the Drug Enforcement Administration next month.

Leonhart, who is leaving amid a scandal over DEA agents engaging in sex parties with prostitutes supplied by drug cartels, is known to be a steadfast opponent of marijuana legalization who once refused to say whether or not she believed marijuana to be safer than crack cocaine or heroin. While Leonhart’s successor is unknown, her departure on its own is likely to be cheered by the emerging cannabis industry and proponents for the drug’s widespread legalization.

Meanwhile, Lynch, who will succeed Eric Holder as head of the Justice Department and the nation’s top law enforcement officer, is known to be politically liberal. But she is not expected to be as open-minded as Holder when it comes to marijuana legalization.

 

DC’s Newest Beer Release Smells Like Marijuana

DISTRICT OF COLUMBIA:  On Tuesday night, a protest beer from the District’s own DC Brau brewery will cater to fans who savor the flavor of marijuana. “Smells of Freedom” is DC Brau’s newest seasonal india pale ale, made in collaboration with Colorado’s Oskar Blues Brewery. It does not, however, contain actual weed. Instead the smell and taste was created with a combination of three hops, which created the unique cannabis aroma. The two breweries planned the flavor in advance of the legalization of recreational marijuana in D.C. back in November.

DC Brau co-founder Brandon Skall told The Washington Post that he doesn’t smoke pot, although he does believe that people should have the freedom to smoke it, comparing the fight for the legalization of marijuana to ending prohibition. If anything, Skall sees the beer more as a demonstration for freedom inspired by the annual tax bill that he pays in the District.

The beer reveal happens tonight at 5 p.m. at Meridian Pint, a watering hole in the Columbia Heights neighborhood that celebrates the art of the American beer craft, according to its website. The watering hole drew a crowd of Initiative 71 supporters celebrating the legalization on last year’s Election Night. Skall told told Washington City Paper that he expects the beer to sell out quickly, especially given that there are only 120 barrels of Smells Like Freedom, which is only available in the District.

 

DC Council Looks Into Emergency Funds To Snub Congress And Implement Marijuana Regulation

DISTRICT OF COLUMBIA:  The D.C. City Council is continuing to snub Congress by exploring ways to use emergency reserve funds to implement a regulatory framework for marijuana.

According to councilmembers, the city may be able to tap in emergency reserve funds to get around the prohibition set in place by Congress which states that the city cannot spend Fiscal Year 2015 funds “to enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with [marijuana’s] possession, use, or distribution,” Marijuana.com reports.

The requirement, then, surrounds whether councilmembers can convincingly argue that marijuana legalization—without any accompanying regulation or taxation—constitutes a threat to “public safety or health.”

Since no dispensaries are currently permitted, there is no way for users to legally purchase the drug. This means that users find themselves looking into the black market for untested, unregulated cannabis, which is often controlled by dangerous cartels.

DC Bans Pot-Smoking In Bars, Activists Threaten Protest

DISTRICT OF COLUMBIA:  A battle is shaping up in Washington, DC over the City Council’s decision Tuesday to ban marijuana use in bars and at private events. Initiative 71 supporters say they may protest the decision with a massive smoke-out on Apr. 20.

“There’s a big reason to gather and use cannabis in defiance of the law to demand a place to gather in private that’s legal,” says organizer Adam Eidinger. “The mayor told me all along she didn’t like the idea of smoke-ins and we were willing to not organize them as a tactic. But it’s on the table now.”

The new law legalizing marijuana in the District went into effect last week. It allows for possession and home growing, but does not permit public use outdoors or in commercial spaces like bars and clubs. This is pretty standard: The same bans on public use exist in Colorado and Washington State.

Activists question why marijuana is treated differently than alcohol. If you can drink in a bar, why can’t you smoke or vape in a coffeeshop similar to what they have in the Netherlands?

 

DC’s Newly Elected Attorney General Says Marijuana Legalization Can Go Forward

DISTRICT OF COLUMBIA:  Advocates say marijuana legalization, which passed as a ballot initiative in November, still stands because it was enacted before Congress intervened. The initiative legalized the possession, growing, and gifting of small amounts of marijuana, but not sales.

The congressional spending deal that tried to block legalization says the DC government may not spend local or federal funds to “enact” a law, rule, or regulation that reduces penalties on marijuana. The idea was to prevent DC Council from transmitting the voter-approved initiative to Congress for approval, as required by federal law, since it would take the city council’s time and resources to do so.

Advocates argue DC voters already enacted the legalization initiative back in November. Under this argument, DC Council wouldn’t be spending its time and resources to enact the initiative by sending it to Congress for a mandatory 30-day review period; it would be merely carrying out an initiative already enacted by voters.

Karl Racine, DC’s newly elected attorney general, told the Washington Post he agrees with this interpretation (as does Congresswoman Eleanor Norton, DC’s nonvoting delegate to the House of Representatives). Racine argued the congressional spending deal blocks future actions in DC, such as the legalization of sales, but not DC’s ballot initiative, which only legalized the possession, gifting, and growing of marijuana.