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AN OVERLOOKED PROVISION OF ILLINOIS’ CANNABIS REGULATION AND TAX ACT: AN EXEMPTION TO THE SMOKE FREE ILLINOIS ACT

By Evan Kanz on Monday, August 12th, 2019
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Following through on one of his biggest campaign promises, on Tuesday, June 25th, Illinois Governor J.B. Pritzker signed legislation making Illinois the 11th state to legalize recreational marijuana and the first state to do so without a voter-approved referendum.[1] The new law, commonly known as The Cannabis Regulation and Tax Act (“CRTA”), takes effect on January 1, 2020 and is arguably the most progressive recreational marijuana legislation to date.[2] Many aspects of the CRTA have been widely publicized, specifically an individual’s ability to possess 30 grams of marijuana at one time, expungement of prior marijuana crimes, and preferred dispensary licensing for “social equity applicants.”[3]

While most aspects of the CRTA have been widely publicized, certain provisions of the bill have been overlooked by the general public as well as some lawmakers who voted the bill into law. One such overlooked provision of the CRTA is the exemption to the Smoke Free Illinois Act.[4] Not long ago, it was commonplace for businesses and public places in Illinois to allow smoking indoors. However, since the passage of the Smoke Free Illinois Act in 2008, smoking has been prohibited in nearly all public places and workplaces in Illinois.[5] Now, with the passage of the CRTA smoking in public places could once again become a possibility in Illinois.[6]

While the CRTA establishes an exemption for smoking marijuana, smoking tobacco is still largely banned at workplaces and businesses.[7] Importantly, many health advocates believe that allowing indoor smoking of any kind is a bad idea.[8] In addition to the concerns of health advocates across Illinois, some Illinois legislators who voted in favor of the bill now have concerns about the health impacts of the CRTA’s exemption to the Smoke Free Illinois Act. In fact, after discovering the CRTA’s exemption to the Smoke Free Illinois Act, State Senator Steve McClure, R-Jacksonville, said “If [the sponsors] had told me that you can smoke cannabis in public places—including bars, restaurants, etcetera—I would’ve definitely voted no.”[9]

While concerns about allowing marijuana usage in public places are valid, there are benefits to consider as well. Promoting and enhancing “social equity” was a substantial motivation for the CRTA. In fact, one of the CRTA’s sponsors, State Senator Toi Hutchinson, D-Olympia Fields, said that the goal was to “put social equity at the center and heart of our efforts.”[10] Importantly, allowing public consumption of marijuana promotes Illinois’ “social equity” objective. Because Illinois property owners still maintain the authority to prohibit marijuana usage in and at their premises, without a public place to use marijuana many individuals would be left with no place to legally use marijuana. Legal marijuana lounges would ensure that individuals who live in shared housing or public housing have an equal opportunity to legally use marijuana.[11]

In addition, even though the state of Illinois established the exemption to the Smoke Free Illinois Act, ultimately local governments will be responsible for licensing and regulating the on-premises consumption of marijuana at or in business establishments.[12] In other words, it is completely within the discretion of local governments whether to grant on-site consumption licenses or not.[13] So while it’s likely that Chicago and some surrounding suburbs will grant on-site consumption licenses in the near future, other, more conservative sections of Illinois will likely face more local community pushback. In the end, local community opinion will play a vital role in the process, and the actual application of on-site marijuana consumption licensing will likely look far different depending on location within the state.

Although the CRTA’s exemption to the Smoke Free Illinois Act is a progressive measure, Illinois is not alone in its allowance of on-premises consumption of marijuana at or in business establishments. In fact, Colorado, California, Alaska, and Nevada all have approved, or plan to approve, granting public marijuana consumption licenses to hospitality establishments.[14] Each of these states is still in the early stages of the licensing process and it’s difficult to predict how the process will work itself out in Illinois. One example to look to is Colorado, specifically its largest city Denver, where the nation’s first licensed marijuana consumption lounges were established.[15] The licensing process in Denver was delayed due in large part to the elaborate and strict rules the local government imposed on the marijuana lounges.[16] For example, prospective lounges cannot serve alcohol or allow indoor smoking, cannot advertise in a way that is visible from the sidewalk, and must develop an “odor control plan” along with policies to deal with intoxicated customers.[17]

In addition to looking to what other states have done, many comparisons can be made between legalizing on-site consumption of recreational marijuana and the legalization of video gambling machines. While most thought video gambling machines would be limited to bars and veteran organizations, video gambling machines can now be found just about anywhere in Illinois.[18] In fact, as of 2017, there are over 24,000 video gambling machines[19] across 6,359 locations throughout Illinois.[20] Notably though, despite the fact Illinois passed the Video Gaming Act in 2009, it took until 2012 for legalized video gambling to go live in Illinois business establishments.[21] If anything can be learned from Illinois’ legalization of video gambling machines it’s that the licensing process for on-site consumption of recreational marijuana will likely be a tedious and lengthy operation.

As recreational marijuana becomes more widely used and accepted consumers will want public places to consume it.[22] Nonetheless, the idea that smoking could once again be commonplace in restaurants, parks, and other public places is probably a stretch at this point. As one of the sponsors of the CRTA, State Representative Kelly Cassidy, D-Chicago, said, the idea that a local government “would allow smoking of cannabis in spaces where smoking tobacco is explicitly prohibited is frankly ludicrous.”[23]

In the end, marijuana lounges may still be a long way from becoming a reality in Illinois but it’s too difficult to predict at this point. Luckily, although marijuana is still illegal at the federal level, thanks to the Illinois State Bar Association’s 2014 advisory opinion and amendment to Illinois Rule of Professional Conduct 1.2, Illinois lawyers will be allowed to help navigate the new state marijuana laws and hopefully make the process easier for all those involved.[24]

[1] Governor JB Pritzker Signs Recreational Marijuana Law, CBS Chi. (June 25, 2019), https://chicago.cbslocal.com/2019/06/25/illinois-recreational-marijuana-law-governor-jb-pritzker/; Jonah Meadows, Bill Legalizing Recreational Marijuana Passes Illinois House, Patch (May 31, 2019), https://patch.com/illinois/springfield-il/bill-legalizing-recreational-marijuana-passes-illinois-house.

[2] Samuel Lisec, Behind the Smoke; What You Need to Know About Marijuana Legalization in Illinois, Daily Rev. Atlas (June 18, 2019).

[3] Id.

[4] Tom Schuba, Weed Cafes in Illinois? People Could be Allowed to Smoke Marijuana (Not Tobacco) at Bars, Restaurants Under New Law, Chi. Sun Times (June 28, 2019), https://chicago.suntimes.com/2019/6/28/18761645/marijuana-legalization-illinois-cannabis-smoking-ban-smoke-free-exemption.

[5] Smoke Free Illinois Act, 410 ILCS 82/1. The Smoke Free Illinois Act was enacted due to the General Assembly’s findings that “tobacco smoke is a harmful and dangerous carcinogen to human beings and a hazard to public health.” 410 ILCS 82/5.

[6] Schuba, supra note 4.

[7] Id.

[8] Id. Referring to the CRTA’s exemption to the Smoke Free Illinois Act, head of advocacy for the American Lung Association in Illinois, Kathy Drea, said, “This is a step backwards for the health of the people of Illinois.” Id.

[9] Id. Sen. McClure originally believed that marijuana consumption would only be allowed at state-licensed cannabis facilities. Id.

[10] Jerry Nowicki, Marijuana Legalization Signed Into Law, Platt County Journal-Republican (June 26, 2019), https://www.journal-republican.com/news/marijuana-legalization-signed-into-law/article_6e3ad7b2-9817-11e9-b3a8-f79da6706540.html.

[11] Steve LeBlanc, Massachusetts Inching Closer to Licensing ‘Cannabis Cafes’, Assoc. Press (Jan. 9, 2019), https://boston.cbslocal.com/2019/01/09/massachusetts-licenses-cannabis-cafes/.

[12] Adult Use Cannabis Summary, Illinois.gov (last visited July 13, 2019), https://www2.illinois.gov/IISNews/20242-Summary_of_HB_1438__The_Cannabis_Regulation_and_Tax_Act.pdf.

[13] Schuba, supra note 4; see Nick Kovacevich, Cannabis Cafes Are Coming, Forbes (Jan. 23, 2019), https://www.forbes.com/sites/nickkovacevich/2019/01/23/cannabis-cafes-are-coming/#21004a185226. States and localities that have legalized recreational marijuana are developing their own rules and regulations because there are no federal standards. Id.

[14] Id.

[15] Kristen Nichols, As Marijuana Consumption Licenses Stall, Some Entrepreneurs See Opportunity, Marijuana Bus. Daily (Oct. 10, 2017), https://mjbizdaily.com/consumption-licenses-stall-entrepreneurs-see-opportunity/.

[16] Id.

[17] Id.

[18] Joseph Bustos, Where in Illinois Will People Be Able to Use Marijuana? Local Governments Will Decide, State Journal-Register (July 14, 2019), https://www.sj-r.com/news/20190714/where-in-illinois-will-people-be-able-to-use-marijuana-local-governments-will-decide.

[19] Becky Yurak, Video Gambling Has Hot Hand in Illinois, Chi. Trib. (Oct. 21, 2016), https://www.chicagotribune.com/business/ct-illinois-video-gambling-1023-biz-20161021-story.html.

[20] Jon Friedl, Illinois Slot Machine Casino Gambling in 2018, Professor Slots (Oct. 16, 2018), https://professorslots.com/illinois-slot-machine-casino-gambling/.

[21] Marissa Bailey, Legal Video Gambling Finally a Reality in Illinois, CBS Chi. (Oct. 9, 2012), https://chicago.cbslocal.com/2012/10/09/legal-video-gambling-finally-a-reality-in-illinois/.

[22] Kovacevich, supra note 13.

[23] Bustos, supra note 18.

[24] Rhys Saunders, A Doobious Dilemma, 107 Ill. B. J. 15 (2019). “After the state implemented the Compassionate Use of Medical Cannabis Pilot Program Act in 2014, the ISBA Standing Committee on Professional Conduct issued an advisory opinion stating that lawyers could ethically provide legal services to clients engaged in the medical marijuana business and counsel municipal governments about zoning regulations for dispensaries and cultivation centers.” Id. This advisory opinion is expected to apply to recreational marijuana as well.

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