Is Templeton's Marijuana By Law Legal?

By Law XXI states:

Article XXI – Marijuana or Tetrahydrocannabinol on Town Property 

1. No person, whether in or upon a vehicle, motor vehicle, conveyance, or on foot, shall burn, smoke, ingest, or otherwise use or consume marijuana or tetrahydrocannabinol (as defined in G.L. c. 94C, § 1, as amended) while in or upon any area owned by or under the control of the Town, including but not limited to, any street, sidewalk, public way, footway, passageway, stairs, bridge, park, playground, beach, recreation area, boat landing, public building, school, school grounds, cemetery, or parking lot; or in or upon any place to which the public has a right of access as invitees or licensees.
2. Any marijuana or tetrahydrocannabinol burned, smoked, ingested, or otherwise used or consumed in violation of this bylaw shall be seized, held, and disposed of in accordance with G.L. c. 94C, § 47A.
3. Whoever is found in violation of this bylaw shall, when requested by an official authorized to enforce this bylaw, state his true name and address to said official.
4. This bylaw may be enforced through any lawful means in law or in equity including, but not limited to, enforcement by criminal indictment or complaint pursuant to G.L. c. 40, § 21, or by non-criminal disposition pursuant to G.L. c. 40, § 21D, by the Board of Selectmen or its duly authorized agents, or any police officer.
5. The fine for a violation of this bylaw shall be three hundred dollars ($300.00) for each offense. A penalty imposed under this bylaw shall be in addition to any civil penalty imposed under G.L. c. 94C, § 32L. In case any section, paragraph or part of this bylaw is for any reason declared invalid or unconstitutional by any court, every other section, paragraph and part shall continue in full force and effect.
Passed 5-10-11, Approved by A/G 5-27-11 

This By Law was passed in 2011. Is this By Law constitutional?


And in other news...

Northboro seeks to ban medical marijuana; other towns eye only recreational pot

 By Elaine Thompson
Telegram & Gazette Staff

Posted Apr 5, 2018 at 8:17 PM 

Updated Apr 6, 2018 at 1:26 PM

Since last month’s release of revised regulations for adult recreational marijuana use, municipalities are heading to town meetings this spring to decide whether to ban or allow marijuana establishments and ways to regulate them.

Shrewsbury, Sutton, Grafton, Northboro, Northbridge and Douglas are among the Central Massachusetts communities that will deal with marijuana issues at town meetings in April and May. Northboro may be the only community that has an article that seeks to ban not only recreational marijuana, but also medical marijuana establishments.

After reaching out to the Cannabis Control Commission; the state Department of Public Health, which currently administers the program; and Attorney General Maura T. Healey’s office, which reviews all proposed bylaws, it’s not clear that such a ban is permissible.

Emily Snyder, spokeswoman for the attorney general, said Ms. Healey’s office has not reviewed or approved any bylaws to ban medical marijuana dispensaries. However, she pointed out a 2013 decision by former Attorney General Martha Coakley’s office that disallowed an attempt by Wakefield to ban medical marijuana dispensaries from opening in that town. Wakefield’s argument was that not allowing the ban would force the town to violate the federal law that classifies marijuana as a controlled substance.

Margaret J. Hurley, assistant attorney general and director of the Municipal Law Unit under both Ms. Coakley and the current attorney general, deemed Wakefield’s proposed bylaw invalid, saying it conflicted with the state statute.

She said the law “could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so ... The question is not whether a ban in Wakefield alone would make it impossible for there to be ‘one treatment center ... in each county.’ The question is whether the legislative purpose of reasonable access to treatment centers could be achieved if every municipality banned them.”

Kathryn A. Joubert, the Northboro town planner, said Thursday that after getting inquiries from two media outlets about the April 23 town meeting warrant article, she is seeking further clarification from town counsel.

She said her understanding is that things have since changed to now allow a municipality to ban medical marijuana treatment facilities.

“Since that time, DPH has issued the requisite number of (medical marijuana dispensaries) for each county, as required under the (2012 act) that states in part that one treatment center shall be located in each county,” she said.


The DPH said the state currently has 23 registered medical marijuana dispensaries. But it did not readily confirm whether there is at least one in each of the nine counties.

Ms. Joubert also said that the medical marijuana statute “will be repealed upon the DPH’s transfer of the medical marijuana program to the Cannabis Control Commission, and a new medical marijuana statute will replace” it. She said the new law does not include a requirement that there be at least one medical marijuana treatment center in each county.

The 2017 law, titled “Act to Ensure Safe Access to Marijuana,” mandates a transfer of the medical marijuana program from DPH to Cannabis Control Commission jurisdiction by Dec. 31.

Cannabis Control Commission spokesman Cedric Sinclair declined to comment about the current medical marijuana program while it’s still with the DPH, and any possible changes when it is under the Cannabis Control Commission. He did say that the adult use regulations do ensure that medical marijuana continue to be available for patients in cases where medical marijuana dispensaries also become licensed to sell recreational marijuana.

“During the drafting process, commissioners agreed to require a marijuana retailer that is co-located with a registered marijuana dispensary to maintain a sufficient quantity and variety of marijuana products, including marijuana for patients,” he said.

In Shrewsbury, all four warrant articles for the special town meeting on April 23 will address recreational marijuana. Like Northboro, Shrewsbury is considered a “no” community because the majority of residents who voted on Question 4, the 2016 ballot question that legalized recreational marijuana, cast negative ballots. The “no” communities only have to get approval from town meeting or city council to ban recreational marijuana.

The first article seeks to prohibit recreational marijuana establishments anywhere in Shrewsbury. It would also reduce the zoning districts in which medical marijuana dispensaries can locate from seven to two: Commercial Business (Routes 9 and 20 corridors) and Limited Industrial, which is Centech Boulevard. The town has approved a medical marijuana dispensary for a site on Route 20.

The article would also change the process for medical marijuana facilities. Currently, they are allowed by right without any other oversight by the Shrewsbury Planning Board. If Article 1 passes, medical marijuana establishments would have to undergo a special permit process.

If Article 1 fails, Shrewsbury Town Planner Bernie Cahill said, town meeting would move to Article 2, which would allow and regulate recreational marijuana establishments in the two zones. Article 3 would accept the state law that imposes a local sales tax of up to 3 percent on the retail sale of marijuana and marijuana products. The last article would amend the town’s bylaws to include the prohibition of the consumption of marijuana on town property.

Mr. Cahill said that since state law already prohibits smoking on public property, Article 4 would prohibit the consumption of marijuana edibles in public. Fines range from $50 for the first violation to $300 for the fourth and each subsequent violation.

Although the majority of voters rejected Question 4 in 2016, Mr. Cahill said, town meeting could go either way, because articles to prohibit marijuana establishments that include a zoning component require a two-thirds vote.

“That’s a high threshold. It’s going to be close,” he said.

Sutton Town Administrator James A. Smith knows full well how difficult it is to get two-thirds of town meeting to agree on an article.

Voters in Sutton rejected Question 4 in 2016 and at a May 2017 election. Five months later, at an October town meeting, the majority of residents supported the required zoning component, but the zoning did not get the two-thirds vote required for it to pass. Mr. Smith said the town will know what the proposed zoning bylaw for the May 14 town meeting will be after an April 9 public hearing before the Planning Board.

“The problem is I don’t know that all the boards and committees were on the same page at the fall town meeting when it failed. We need to show a coordinated approach prior to town meeting,” he said.