Opt in or opt out? Council seeks more information about state law allowing recreational marijuana use by adults


The implementation of New York’s recently passed legislation allowing the recreational use of marijuana for residents 21 and over is a year or two away, but the Batavia City Council believes it’s not too soon to gather as much information as possible and to gauge the pulse of its citizens.

At their Conference Meeting tonight at City Hall, Council members and City Attorney George Van Nest engaged in a 33-minute back-and-forth discussion about the new state law, officially known as the Marijuana Regulation and Taxation Act.

Council member Robert Bialkowski asked to have the topic placed on the agenda and Batavian Sammy DiSalvo, during the public comments portion of the meeting, said he wanted to know if the board has taken a position – either for it or against it.

“With the passage of the MRTA about three or four weeks ago, municipalities have until December 31st of this year to opt out of allowing – I think it’s either the sale or places to pop up to either use drugs, specifically pot, in a recreational kind of way,” DiSalvo said. “Is the city leaning toward banning all of that because you can opt out up until December 31st. After December 31st you can no longer opt out but can opt back in.”

Van Nest concurred with that assessment, adding that municipalities can opt out “through a local law adoption” and they have to do so before the end of 2021.

“If that local law is filed, basically it doesn’t become effective for 45 days, giving the public to file a referendum or a petition seeking to have that question brought before the voters,” he said. “So, essentially what is required is a trigger of 10 percent of the electorate – the voters for the last electorate, rather – and then if a sufficient petition is filed with sufficient numbers, the question of whether or not the opt out would go before the public in a subsequent election.”

Bialkowski kicked off the discussion, inquiring about the effects of secondhand smoke from marijuana on children. That prompted Council President Eugene Jankowski Jr. to point out that, like cigarettes, marijuana use would not be allowed at city parks. But, under the new law, adults would be free to smoke cannabis in their homes and on a public street.

Jankowski said he learned from a webinar with the New York Conference of Mayors that businesses would be limited to being either a grower, seller or an on-premise place of consumption.  He added that the state has set up a Cannabis Control Board, a five-member group that will be working with an advisory committee to create the Office of Cannabis Management.

According to published reports, the CCB is expected to be in place within a few months, and will get the process rolling for the granting of licenses to dealers and formulating rules and regulations.

After Council member Al McGinnis said that federal laws on marijuana will supersede state laws, specifically mentioning federally-operated housing and the inability to purchase a gun, Jankowski said he thought it would be wise to wait until regulations are adopted and then for Council to direct City Manager Rachael Tabelski to “get involved in the code enforcement planning process.”

Jankowski said he believed the city would be limited in what it could do, other than define the location of a dispensary and possibly the hours of operation. He said he liked the idea that the law adds to the control, regulation and safety aspects of marijuana, which would stop juveniles from getting their hands on it.

He also indicated that he was keen about the fact that municipalities with a dispensary will receive 3 percent of a 13-percent excise tax on marijuana sales.

Jankowski’s contention was that if Batavia was to opt out, a dispensary could be set up just outside the city limits and the city would miss out on revenue that could go toward increased police patrols or other measures to mitigate any negative effects of legalized pot smoking.

Council member Rose Mary Christian wasn’t buying that reasoning, however. She said that it’s “absolutely correct that it (marijuana) is already out there” and the law was passed only because the state needs the money.

“They really don’t give a damn about kids or adults, and the fact that they would be loaded all the time and cause accidents like they are in the state of Colorado,” she said, calling for Council to opt out as soon as possible.

Van Nest then weighed in, noting that while the use is authorized at this point, the actual sales likely won’t happen until 2022 or 2023 as it will take that long to set up the regulating agencies and parameters concerning consumption, growing and sales. The attorney also said that cannabis will be treated in the same manner as cigarettes and vaping when it comes to secondhand smoke.

“Relative to the zoning issue, it’s going to be up to the municipalities whether or not they want to regulate time, place and manner,” he said.

Jankowski said he was advised that people will not be able to grow marijuana plants until all the regulations are in force.

“I think a lot of people are thinking, ‘Hey, in a couple of months I’ll have my own supply – it’s legal now. But technically, they’re not allowed to grow it because if you grow it and give it away … it becomes a violation …,” he said.

The council president then asked his colleagues how they felt about opting out.

Christian said she was in favor of that, while Bialkowski brought up the possibility of a public hearing to get residents’ opinions. Van Nest said no to a public hearing but stated that a public information meeting would be in order.

After Jankowski said an opt out wouldn’t really solve anything because people could purchase marijuana and transport it back to the city, Christian said she wasn’t worried about other areas, just the kids in Batavia.

Jankowski said it wasn’t his responsibility to tell adults how to live their lives before Bialkowski suggested having someone from the outside – a professional – come to a Council meeting to educate the board members.

Again, on the opt out, Jankowski said, “I personally think it’s a waste of time and we’re cutting ourselves short by not at least regulating it and keeping an eye on it, and keeping it close so we can pay attention to what’s going on. If we have a problem, then at least we have some money (from the excise tax) to compensate for that problem.”

Council members Patti Pacino and Kathleen Briggs said they would support “an expert” coming in to advise them about the provisions of the law, leading Jankowski to say he didn’t want to have 500 people at a meeting with half against it and half for it, “and not really resolving anything.”

Council member John Canale compared the situation to that of alcohol sales, concluding that opting out won’t accomplish much by disallowing sales in the city because people will “walk in and buy it (pot) and walk out with a bag in their hand.”

Canale then suggested getting public input, asking residents to contact their Councilperson with their thoughts on the matter. He added that he didn’t think there will be much of an outcry either way.

In the end, Jankowski said the issue would be “tabled for now” and reconsidered when Council hears more from the state. He then asked Tabelski to keep Council informed as new developments occur, once again mentioning that the city would receive 3 percent of the excise tax generated by cannabis sales.

New York State officials are indicating that marijuana sales are expected to generate $350 million in revenue to the state per year, and around 50,000 jobs will be created.

During a Special Business Meeting after the Conference Meeting, City Council passed resolutions, as follows:

  • Hiring of a police officer and two firefighters and funding special police details after learning that an additional $262,656 was coming to the city in state Aid and Incentives for Municipalities’ funding. Tabelski noted “the stability of AIM money” in her recommendation to unfreeze these positions, which were left vacant during budget deliberations.
  • Contracting with Keeler Construction Co. Inc., of Albion, to replace an old and inefficient air header – a key component for providing oxygen back into the ponds to digest waste at the wastewater treatment plant. The amount of the contract is $777,425. The air header replacement is part of a $1 million wastewater treatment plant project.
  • Applying for a grant for $328,000 from the Northern Border Regional Commission, which would cover 80 percent of the cost to upgrade water lines on Bank Street between Main Street and Washington Avenue in support of future development projects as well as improving water pressure for fire suppression. The City would be responsible for 20 percent – or $82,000 – of the project’s total cost.



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