Social consumption — but how?

A depiction of a cannabis bud drops from the ceiling at Leafly's countdown party in Toronto on Oct. 17, as midnight passed and marked the first day of the legalization of cannabis across Canada.Chris Young/The Canadian Press via Associated Press/File

On Tuesday, the Massachusetts Cannabis Control Commission is going to once again debate the merits of licensing so-called social consumption venues, or cannabis cafes.

Unfortunately, that discussion will be mostly academic. Why? Because a flaw in the state’s marijuana law means cities and towns have no way to authorize the businesses.

A bit of background...

Longtime readers will recall that the commission had approved such businesses in its initial draft regulations back in December 2017.

Proponents said cannabis cafes would give tourists (and rental tenants whose leases ban smoking) a legal place to use a legal product — and help cut down on the nuisance of people smoking pot in public parks and on sidewalks. Smoking outside in public is illegal in Massachusetts, but it’s only punishable by a $100 fine and enforcement is minimal.

But in February, when the agency was preparing to finalize its rules, a chorus of critics, including Governor Charlie Baker and Attorney General Maura Healey, chimed in. They said social consumption businesses would encourage over-consumption of pot and lead to an uptick in stoned driving. And, they argued, the nascent commission should focus its limited resources on opening “core” operations such as cultivation facilities and retail shops.

The commission ultimately decided to postpone licensing social consumption (and delivery) businesses until February 2019.

However, the agency’s five commissioners also voted to debate the issue again in October after its staff had worked on proposals to address specific concerns, such as ventilation, over-consumption, and stoned driving. And they agreed that if the commission does authorize social consumption and delivery, those licenses will only be available to small businesses and participants in the state’s marijuana industry equity programs. Other, bigger operators will have to wait as long as five years before they can apply.

The problem...

Under state law, social consumption licenses are banned by default at the local level. Cities and towns have to “opt in” by holding a community-wide referendum on whether to allow cannabis cafes within their borders. The vote needs to take place during a biennial state election, such as the ones happening this November and in 2020.

To trigger such a vote, someone needs to get 10 percent of the municipality’s voters to sign a petition supporting social consumption. The petition, the law says, must conform “to the provisions of the General Laws relating to initiative petitions at the municipal level.”

And there’s the problem: Massachusetts law doesn’t have any such provisions.

With the exception of a small handful of cities that permit these votes under their charters, or special acts of the Legislature, there is no process under state law for citizens to bring forward initiative petitions at the local level.

So, according to the office of Massachusetts Secretary of State Bill Galvin, who oversees elections, cities and towns have no legal way to authorize social consumption.

“It is not clear how they would do so, as there is no procedure supplied in the statute,” Galvin spokeswoman Debra O’Malley told me this week.

Galvin’s office earlier this year proposed a statutory remedy to “create a specific petition process, set deadlines for the petitions to be submitted, and specify the format of such a question,” she added.

But the bill died in the Legislature, as did a package of similar technical fixes to the marijuana law submitted by Baker.

That’s a major frustration to local leaders such as Holyoke Mayor Alex Morse, who would love to host social consumption facilities in his city.

“The on-site consumption cannabis cafe concept would be exciting for Holyoke in the area of tourism,” Morse said. “We have a beautiful downtown canal district that would be the ideal place — we feel it would drive people to the city and lead to an increase in spending at other small, local businesses.”

Morse added that cannabis cafes are cheaper to start than a full-fledged cultivation operation or retail store, meaning Holyoke residents could start one without getting millions in funding.

All he needs now is a fix from the state.

“We’re frustrated with how little guidance there’s been in terms of how cities can go about permitting on-site consumption,” Morse said. “We don’t want to move forward with a ballot or a home rule petition [asking the Legislature to pass a law allowing social consumption in Holyoke specifically] if it’s just going to be invalidated.”

Bottom line: the Cannabis Control Commission can debate social consumption all it wants, but until the Legislature fixes its frankly embarrassing drafting error, Morse and would-be cannabis cafe owners are out of luck.