PROVIDENCE, R.I. (WPRI) — Gov. Dan McKee’s administration for the first time Tuesday expressed opposition to the new plans to create a Cannabis Control Commission to oversee Rhode Island’s marijuana industry, arguing it violates the state constitution by requiring the governor to pick commissioners from lists provided by the Senate president and House speaker.
The proposed three-member Cannabis Control Commission is part of a 115-page cannabis legalization bill unveiled on March 1 with the support of both House and Senate leaders. The structure, modeled on New York State, was a compromise between the House and Senate sponsors, but not McKee.
The governor’s opposition to the structure was laid out in a letter from McKee’s legal counsel, Claire Richards, and testimony from a member of his cabinet, Department of Business Regulation Director Elizabeth Tanner.
“The administrative structure contemplated in this legislation is complex and raises concerns related to separation of powers,” Tanner told the Senate Judiciary Committee Tuesday night, at the first hearing about the new bill.
Under the legislation, the newly created commission would take over control of the marijuana industry away from the Department of Business Regulation and Department of Health, giving the panel the power to issue licenses to those who will grow and sell the lucrative product. But the commission would utilize DBR’s existing regulators for enforcement, advice and other administrative duties.
The bill calls for the governor to appoint the members of the commission, subject to Senate confirmation. But it requires he or she give “due consideration” to one member from a list provided by the House speaker, one from a list provided by the Senate president, and one of the governor’s own choosing. A commissioner could only be removed with Senate confirmation as well, according to the bill.
In written testimony to the committee, Richards said the structure violates the governor’s power to appoint members of a commission that hold executive power.
“If the governor selected someone from the list, the Senate would then give advice and consent to its own recommended candidate,” Richards wrote. “The Senate would have unfettered discretion as to whether the commissioner could be removed, even if the commissioner had been convicted of a felony, substantially neglected his duty or was guilty of malfeasance in office.”
Spokespeople for House Speaker Joe Shekarchi and Senate President Dominick Ruggerio both disagreed with McKee’s interpretation.
“This bill, and specifically the appointment process, is consistent with Rhode Island’s separation of powers principles and the law flowing from the Rhode Island Supreme Court,” Senate spokesperson Greg Pare and House spokesperson Larry Berman said in a joint statement. “The appointment process contained in the bill is similar to the process used in the I-195 Redevelopment District Commission and the Judicial Nominating Commission. The legislation is not treading on new constitutional ground.”
Spokespersons for McKee did not respond when asked if the governor would veto the bill as written.
“As we did throughout the summer and fall, we continue to invite the administration to participate as this bill advances through the legislative process,” Pare and Berman said.
The debate over who should control the cannabis industry has been a sticking point in negotiations between legislative leaders and McKee, though they largely agree on broader issues of taxation, local control and equity provisions.
McKee — who supports legalization in general — had opposed a prior version of a Cannabis Control Commission that passed the Senate last year. His office had not responded to multiple requests for comment about the new structure since it was introduced March 1.
This year, House and Senate leadership are aligned on legislation for the first time, and could potentially have a veto-proof majority on the cannabis framework.
Many of the people who testified at the Judiciary Committee hearing urged lawmakers to amend the bill to make expungement of past marijuana records automatic. The Senate bill currently would require those previously convicted of possession to ask the courts for the expungement, while McKee’s bill would make it automatic.
Cherie Cruz, representing social justice group Yes We Cannabis, said expungement should not only be automatic, but should include offenses beyond just possession, such as sale of marijuana.
“Especially since we’re allowing an elite few to conduct the same activities, but on an even grander scale,” Cruz said.
Nearly everyone who testified at the hearing was in favor of legalization. But the Rhode Island Police Chiefs’ Association submitted written testimony opposing the legislation, calling marijuana a “dangerous drug that harms public health and safety.”
“Marijuana intoxication can cause impaired driving, thereby increasing the risks of accidents,” wrote Narragansett Police Chief Sean Corrigan, the president of the association. “Normalization of the recreational use of marijuana will have a compounded negative impact due to well established factors and inevitably cause an increase in automobile accidents, injury and death to our motoring populace.”
Some written testimony also expressed concern about the impact on the workplace. Stuart Benton, president and CEO of Bradford Soap in West Warwick, asked that employers be able to randomly drug test employees and be able to fire them.
“Employers need assurances that their employees are reporting to work fit for duty,” Benton said. “Rhode Island’s existing drug testing law ties their hands.”
The bill allows employers to ban workers from being under the influence of cannabis at work, but bars them from disciplining or firing employees because of their private cannabis use outside of work, with two exceptions: federal contractors, and jobs that are “hazardous, dangerous or essential to public safety,” which can prohibit the use of marijuana for 24 hours prior to an employee’s shift.
Steve Brown, who leads the Rhode Island chapter of the ACLU, argued the bill should be stronger in preventing employment discrimination.
“Yes, they need to address intoxication in the workplace,” Brown said. “But they should not be controlling their employees 24/7.”
As written, the legislation would allow adults over 21 to possess and grow marijuana upon passage, and would start the sale of recreational cannabis on Oct. 1 at existing medical dispensaries that acquire hybrid licenses.
It would take a bit longer to license other retailers, for a total of up to 33 stores. The bill would use the same six geographic zones used for medical dispensaries for the retailers. Licenses would be set aside for social equity applicants and worker co-ops, but the specifics on how the retailers would be selected — a random lottery, a merit-based system or another method — would be determined by the new Cannabis Control Commission.
Cities and towns would be able to opt out of hosting cannabis stores by holding a voter referendum this fall, according to the bill. Jordan Day, interim director of the R.I. League of Cities and Towns, testified that local city or town councils should have the power to ban the stores by ordinance without going to voters.
Municipalities can also use zoning laws to regulate where pot shops can go, but are otherwise barred from approving individual stores — a clause added in the wake of a marijuana bribery scandal in Fall River for which the former mayor has been sentenced to six years in prison.
While the legislation is a compromise between the House and Senate, it is not the final product, said state Sen. Josh Miller, the sponsor of the Senate bill. He emphasized that all testimony would be taken into consideration.
“I feel strongly that this will result in a better bill,” Miller said.
Steph Machado (email@example.com) is a Target 12 investigative reporter covering Providence, politics and more for 12 News. Connect with her on Twitter and on Facebook.