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Legislators send pot overhaul to governor

Federico Anfitti/EPA

The Democrat-controlled Massachusetts Legislature sent an overhaul of the voter-passed marijuana legalization law to Governor Charlie Baker’s desk Thursday — but not before a top Republican lit into the legislation.

The Senate enacted the measure on a 32-6 vote. On Wednesday, the House voted 136-11 to move the bill forward.

Baker is expected to sign the measure, which would raise cannabis taxes from what the ballot question envisioned, merge oversight of recreational and medical marijuana, and change how cities and towns can ban pot shops.

“Governor Baker appreciates the Legislature’s work on this bill and will carefully review it in the coming days,” spokeswoman Lizzy Guyton said.


Yet before the vote that sent the legislation to the GOP governor, the Senate’s top Republican, Senator Bruce E. Tarr, issued a sharp warning to legislators: One key provision might prompt lawsuits that could lead to “the incapacitation of this statute” and would set a “very dangerous precedent.”

The bill would change how cities and towns can ban or severely restrict local recreational marijuana facilities, such as pot shops, farms, and infused product manufacturers (think: cannabis soda).

The ballot question gave that right to voters in each municipality, a right the Senate bill left in place. The House-passed version of the overhaul would have given that power to local elected officials instead.

The legislative compromise splits the difference: Cities and towns that voted in favor of legalization last November would still require a voter referendum to ban or severely limit marijuana shops. But in cities and towns that voted against the measure, local elected officials would make those decisions.

Tarr acknowledged the accord was a “convenient compromise in the crucible” of House and Senate negotiators trying to come to an agreement.

But, the Gloucester Republican said, it sets an awful precedent. If the bill becomes law, residents in the cities and towns that voted against Question 4 in November will have, unknowingly, taken away their subsequent right to ban shops in their hometown by ballot.


“A group of people in Massachusetts will have their right to vote extinguished by virtue of the way they voted on a ballot question,” he said with incredulity from the floor of the Senate.

And, Tarr added, “It clearly makes this bill subject to a colorable constitutional challenge” — meaning a lawsuit could make a plausible case against the language. That challenge might not arise in the immediate future, the senator said, but down the road when someone is aggrieved by the decision of a particular city or town.

Outside lawyers have questioned whether the provision violates guarantees of equal protection under the law.

But Senator William N. Brownsberger, a Belmont Democrat, called such concerns “nonsense.”

Speaking to his colleagues, he said the constitutional guarantees of equal protection are designed to protect specific classes of people — race, sex, religion, etc.

“This is not a discrimination based on any one of those protected classes and, therefore, it is not subject to strict scrutiny by the courts. It is only subject to a general test that there must be a rational basis for the discrimination,” he said.

“Our basis for discriminating is based on their prior expressed preferences,” he said of voters in the 91 cities and towns that voted against the marijuana legalization measure in November. “We’re not sending them back to do it again.”


Besides changing local control, the bill would also raise the total tax on retail pot purchases to a maximum of 20 percent, up from a maximum of 12 percent that was spelled out in the ballot law. And it would merge oversight of the recreational and medical marijuana industries into a five-person Cannabis Control Commission appointed by the governor, attorney general, and treasurer.

Several senators lauded the legislation. Senator Jason M. Lewis, a Winchester Democrat seen as the legislator most knowledgable about the marijuana industry, called the bill a “remarkable achievement.”

Lewis praised several provisions in the bill that would restrict cannabis advertising and packaging with the aim of protecting consumers and making sure pot products are aimed just at adults.

But others remained unconvinced on the broader package.

Senator Donald F. Humason Jr., a Westfield Republican who opposed the legalization ballot question, said he expected residents of Massachusetts to come to regret their decision, as a billion-dollar cannabis industry proliferates across the state.

When people look back on Thursday’s vote five, 10, 20 years down the line, Humason said, he believes he will have been on the right side of history voting “no.”

Joshua Miller can be reached at Follow him on Twitter @jm_bos and subscribe to his weekday e-mail update on politics at