When Considering Opting Out of Pot Establishments, Don’t be Confused by the “Pot Bar Provision”

Some communities and many Town Counsels have been confused by MGL Ch.94G, Sec.3 (b) of the Law–the “pot bar provision”. This provision has nothing to do with the process to Opt Out of commercial marijuana establishment land uses in your community.

The “pot bar” provision describes a process by which, through the gathering of signatures of 10% of the voters at the preceding state election, a question can be put on the ballot of the next biennial state election. That question could ask if your city or town would allow “the sale of marijuana and marijuana products for consumption on the premises where sold.”

By contrast, to Opt Out of having commercial marijuana establishments (pot shops, cultivation facilities, pot food and product manufacturers, and pot product testing facilities), a question needs to be put on the ballot by an act of body in your city or town that is empowered to so. In Westborough, the Board of Selectmen are that body. By a vote of the Board of Selectmen, the ballot question written by Westborough’s contracted Town Counsel, Kopelman Paige, was authorized to go on the ballot at the next local election.

If your town or city council has the authority to do so, they too can vote to put a ballot question before the voters. It can be at the next scheduled Local Election, or State Election, or even a Special Election at which just that question is considered.

Ultimately this opinion should be confirmed by your Counsel but, unless your city or town requires, or prefers, the collection of signatures as the means to get a ballot question before its voters, it is not required.

The Regulation and Taxation of Marijuana Act (the Law) was written by and for the benefit of the Marijuana Industry. It is not surprising that it is confusing, even to lawyers. The Law provides numerous ways for the industry to attain its goal of maximizing profit by the number of users of its product. It wants as many ways for users to acquire and consume pot products as possible. To do this, the Law restricts the rights of those (cities and towns, employers, law enforcement) who might act to slow or prevent the maximization of the user base. “Pot bars” or “Cannabis Clubs” are places where marijuana products can be consumed on premises. And “marijuana products” include smoked bud marijuana, vaped high-potency THC oils, ingested THC-infused drinks, edibles and other food products, and even “dabbing” of products know as “wax”, “honey”, “glass” and “shatter”.

For reference, here is the full language of the “pot bar provision”. Remember, it has nothing to do with putting a question before the voters to opt out of commercial marijuana uses:

New MGL CHAPTER 94G Section 3. Local Control

(b) The city council of a city and the board of selectmen of a town shall, upon the filing with the city or town clerk of a petition
— (i) signed by not fewer than 10 per cent of the number of voters of such city or town voting at the state election preceding the filing of the petition and
(ii) conforming to the provisions of the General Laws relating to initiative petitions at the municipal level,

request that the question of whether to allow, in such city or town, the sale of marijuana and marijuana products for consumption on the premises where sold be submitted to the voters of such city or town at the next biennial state election. If a majority of the votes cast in the city or town are not in favor of allowing the consumption of marijuana or marijuana products on the premises where sold, such city or town shall be taken to have not authorized the consumption of marijuana and marijuana products on the premises where sold.