Recent Changes in DC Cannabis Law

by | Mar 11, 2024 | Drugs

By way of quick background, the District of Columbia legalized possession of small amounts of cannabis in 2015 after the infamous Initiative 71 or I71 passed overwhelmingly and the city’s locally elected officials implemented the law.  This legislation opened the door to the creation of a massive unregulated gray market for cannabis distribution. While the law legalized, under local law, consumption and possession, it did not create a legal mechanism for sales and distribution.

The fact that the law permitted gifting created a loophole where businesses would open and sell consumer products–things like stickers, lighters, t-shirts, and art and would gift quantities of cannabis once the customer purchased the non-cannabis item.  Deliveries and even retail brick and mortars sprung up across the city all operating pseudo legitimate businesses while gifting cannabis.

Congressional Interference

So, why was such a counter intuitive law passed?  In short, Congress.

Our congressional overlords, both democratic and republican controlled, in their infinite wisdom, have every year since the law’s passage slipped in a rider in a spending bill that explicitly prohibits the District of Columbia government from creating a licensing mechanism to distribute cannabis for recreational use.

This rider has survived through three presidencies from Obama to Trump to Biden, multiple changes of party control in Congress, and defied almost everyone’s expectations, including third-term DC Mayor Muriel Bowser, for just how long it has stuck.  In particular, in early 2021 when the Democrats controlled the House, the Senate, and Presidency both the Mayor and the City Council believed the rider would finally be removed.  Unfortunately, that did not happen, and Democrats caved to Republican pressure to keep it.

In the meantime, the proliferation of unregulated gifting business certainly ruffled some feathers with the city’s existing licensed medicinal marijuana businesses that had been operating for several years prior to the passage of I71. The medical dispensaries have been understandably upset that they are forced to comply with burdensome regulations that gifting operations largely avoided by operating illegally with little enforcement.

The City Council has tried to crack down on these unregulated businesses.  However, there is no real political appetite in this city to arrest and jail citizens for purchasing, consuming, or even selling cannabis.

Notwithstanding that, over the years, there were periodic raids on pop up events in which the Metropolitan Police Department and the US Attorney’s office seemed to target or view as the highest priority for enforcement.  These events were typically targeted due to claims of firearms and violence occurring at some events as well as neighbors complaining about things like foot traffic, weed odors, and too many cars being parked at the event.

A lot of that enforcement stopped during the pandemic with only sporadic raids occurring at brick and mortar shops where many times police would come to arrest the employees and seize whatever money and product was in the store.  In many of those instances, the stores would simply reopen the next day.

The City Council Enacts Cannabis Legislation

In 2022, Council Chairman Phil Mendelson tried but ultimately failed multiple times to pass a civil enforcement bill that would allow regulatory agencies to start fining i71 businesses to the tune of $30,000.00 to $60,000.00 thousand a for each violation, among other things.

At one point, the city government was set to create a ‘task force’ that would include members of multiple regulatory agencies including the Department of Tax and Revenue, the then-Department of Consumer and Regulatory Affairs, the Department of Health and others to start issuing fines and citations to I71 businesses.  The task force never materialized.

Eventually, the City Council sought an end-around Congress for a solution.  Congress was blocking the creation of regulations for awarding recreational licenses.  However, the city already had an existing robust regulatory scheme for issuing medical marijuana licenses.

So, the City Council passed the Medical Marijuana Self-Certification Emergency Amendment Act of 2022.  This Act permits any resident to self-certify that they have a condition in which they need cannabis for medicinal purposes thus removing the requirement of getting a doctor’s recommendation to get a medical card.  The law also shifted enforcement of the medical cannabis program from the Department of Health to the newly revamped ABCA or Alcohol Beverage and Cannabis Administration (formerly ABRA).

This basically allowed anyone in the city to get a medical marijuana card.  Next, the Council passed the Medical Cannabis Amendment Act which removed the cap on medicinal dispensary licenses and provided a pathway for I71 businesses currently gifting to enter the medicinal market.  The bill also laid the groundwork for enforcement mechanisms for businesses who continue to operate in the unregulated market.

And while the bill was not without some problems, it certainly bypassed our congressional overlords who had been meddling in the city’s local affairs regarding cannabis and thwarting the will of tax paying, unrepresented, District residents for almost a decade.  On top of that, it provides an added layer of legal protection by restyling the businesses as medicinal.  There has also been a separate rider passed year after year in Congressional spending bills since 2001 under the so-called Rohrabacher/Farr Amendment that prohibits the Justice Department from using funds to go after state-compliant medicinal marijuana dispensaries..

So, not only can businesses with the medicinal license not only operate legally under DC law, while their activity remains illegal under federal law, this amendment prohibits the Justice Department from going after them.  In fact, under local and federal law, there is no greater legal protection available to any cannabis business than to enjoy the minimal protections afforded by this annual Congressional Amendment.

The City Begins Enforcement of Non-Licensed Cannabusinesses

That brings us to the existing climate and local legal framework in the DC cannabis market as of the date of this post.  Businesses that did what the local government wanted them to do which was apply for medicinal licenses should now largely be permitted to operate legally at least under local law and will enjoy some protections from federal enforcement so long as they remain DC law compliant once they obtain the medicinal license.  However, there are no guarantees agencies other than ABCA will refrain from taking enforcement action.

In summary, Congress has spent the better part of a decade blocking DC residents and businesses from obtaining recreational licenses.  The City Council finally had enough and did an end around congress by allowing for self-certification for medical marijuana patients and pushing unregulated gifting businesses into the medicinal marijuana space.

In January of this year, the Council passed the Medical Cannabis Emergency Enforcement Act of 2024 paving the way for both regulatory and criminal enforcement.  And while the legislation is supposed to protect businesses who have applied for medicinal licenses from regulatory enforcement, it does not prohibit MPD from making arrests nor does it have any effect on how the US Attorney’s office would prosecute criminal cannabis laws for businesses and employees that do get raided.

If you or a friend or loved one find yourself on the wrong side of a cannabis enforcement action, contact Scrofano Law PC today for a full consultation.

Joshep S.

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