Milford City Council discussed possible regulations on recreational marijuana sales facilities in the town
With the recent legislation passed by the State of Delaware which would make recreational marijuana use legal in the state, Milford City Council, like many municipalities in the state, discussed what parameters the city needed to establish in order to address potential sales of marijuana in city limits, City Planner Rob Pierce explained that the Delaware code left some decisions up to both the county and the municipality.
“So, keep in mind those regulations relate to medical marijuana. So, there’s two different distinctions here. The second, more recent Delaware law that was enacted related to recreational marijuana,” Pierce said. “That section of the Delaware code also provides some guidance as to what local control can be enacted. The Delaware code basically says a municipality may prohibit the operation of a marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities or retail marijuana stores through the enactment of an ordinance or through an initiated measure. A municipality or county may also enact ordinances or regulations that are not in conflict with this chapter or are in conflict with regulations enacted by the commissioner governing the time place manner and number of marijuana establishment operations.”
Pierce continued, stating that marijuana sales would be considered retail, much like tobacco and firearm sales. Alcohol sales are governed differently based on the principal use of alcohol at the location.
“So, if you have a microbrewery or distillery, we have some requirements for that, if it’s a brew, pub, or restaurant, it could be allowed in the C3 zone. If you have a liquor store, tavern, or other type of use, those are all uses that are specifically mentioned in our zoning code,” Pierce said. “Under different areas, but primarily within the commercial districts into the microbrewery and distilleries are allowed in some of the industrial areas or business park areas as well.”
The city has made revisions to their alcohol code over the past decade, Pierce stated. In 2015, a code as adopted that prohibited establishments involving the sale of alcohol, either on or off premises, within 1,000 feet of any public or private school daycare, childcare center or church.
“We found that that was prohibitive for some economic growth in certain parts of the town. Because, especially in downtown, you’re pretty much within 1000 feet of a school, church or daycare wherever you are,” Pierce said. “Council had added some language that would loosen that up a little bit, basically stating you can have an alcoholic establishment in those 1,000 foot setbacks if for consumption on site, the alcoholic beverages were produced in that location. Last January, or two January’s ago, when we updated the zoning code, the planning commission reviewed the prohibited section and felt you know, why even have that statement in there? Why not just allow the State Office of Alcohol Beverage commission regulate where alcohol could be sold. So, we removed that entire section related to alcohol from the zoning code in January of 2022.”
Pierce then explained the multiple agencies that controlled the sale of alcohol in the state. He explained that this was coming to council in order to obtain council’s preference for how to establish the code that would cover marijuana sales.
“I think that the recreational marijuana should be handled in the same way as the alcohol is handled,” Councilman Andy Fulton said. “That’s a wide goal for our community. And I think it will increase revenue. So that’s my input. I agree.”
Mayor Archie Campbell pointed out that many of the beach communities were establishing legislation that would prohibit the sale of recreational marijuana.
“First of all, I would like to tell Rob he did a very good job on the presentation. And very good on talking points for us to discuss the set it up perfectly. And in my opinion, I do agree with Andy, why make it difficult,” Councilwoman Katrina Wilson said. “The way marijuana is grouped, state level with alcohol, and tobacco, I think that we should set a precedent because being the first doesn’t bother me, for us to be the first, matter of fact, I think it makes good sense. We have to be consistent; we have a grower here. There is already a marijuana growing facility here. Therefore, we accepted that part of it. Why wouldn’t we allow it to be up there, be a retail location here to sell the product. So, I agree with letting it go forth as retail within our city of Milford with the guidelines that are already set up by the state?”
Councilman Jason James expressed some concerns related to marijuana that did not exist as far as alcohol.
“We should allow the sale of recreational marijuana but regulate it based on hours of operation and number of establishments and I think we should take a look at this because though it is grouped with alcohol it is a little different because there’s going to be a curve that needs to take place with marijuana,” Councilman James said. “This is still new. We can do it, but we need to do it carefully because there is some criminal elements attached to marijuana at this time. I’m sure it will fade. But that’s not where we are right now. I think we should definitely look at the other regulations and say ‘well, do they make sense?’ And will we be in conflict with them? And do we need to put any specific regulations around the sale of marijuana establishments? And if the answer’s no, that’s fine, but we do need to look at it because it’s not the exact same as alcohol. Prohibition has been gone a long time. Marijuana is new as far as legalization.”
Councilwoman Wilson pointed out that marijuana had been around as long if not longer than alcohol. Councilman James agreed but stated the legalization of marijuana was still fairly new.
“I think I tend to agree. I mean, I think it’s inevitable. I do agree with Councilman James. You know, we can limit hours of operation and in the proximity to schools and things like that. I think we’ve also looked at places out of state that are doing it and seeing what the pluses and minuses are of what they’re facing,” Councilman Todd Culotta said. “But I think it’s gonna happen and then it’ll be across the board at the state level, when they see what works and what doesn’t because it’s not so much what they’re selling. It’s what it affects around it, right? Anytime we prove something here, whether it’s commercial, residential, whatever, what is it doing to the existing place around it? And if we’re the only ones that allow it well, people are going to flock to Milford but if multiple municipalities in Delaware, allow it and we all have consistent methods for regulation and whatever. Looking to the state to establish those then I don’t think it’s a real problem. I do know like, initially when Colorado legalized it, a lot of people flocked to Colorado, and that caused problems for public services and things like that. I don’t think we’re there. But I don’t think it needs I mean, I’ll be honest with you, I think alcohol is regulated enough in Delaware. Alcohol is much more regulated here than other states like Virginia, you know? So, I’m fine to look at the state first, and then we see how it plays out.”
Pierce stated that Councilman Culotta made a good point as it was not clear yet what regulations the state would place on recreational marijuana sales. If the state established criteria, the city would not need to do so. Councilwoman Wilson questioned whether the current ordinance allowed the city set their own parameters.
“Well, no, it says we can be based on the state law state code we can for the recreational marijuana and on the medical, we can establish some limitations on where they can be,” Pierce said. “We just can’t prohibit the medical dispensaries outright. But the recreational we can limit or prohibit.”
Councilman Mike Boyle stated that he had read through the state legislation that day in order to familiarize himself with what the state was proposing.
“I was reading the bill amendment today. I didn’t get all the way through it. But I get the impression that the regulation actually comes from the state,” Councilman Boyle said. “We may be able to regulate hours of operation but apparently nothing more. It is basically an unfunded requirement if they allow it to go forward. Isn’t there a limit on the number of retail licenses I got to offer?”
City solicitor David Rutt explained how he understood the state’s regulation.
“They just have restored the process that was appointing members to the commission that will set up the regulations. But chances are they will. I mean, they wouldn’t want one on every corner,” Rutt said. “The other thing, too, is if you look at Section 3151, which is local control, a municipality can prohibit the operation of cultivation facilities manufacturing, testing retail through in the act of the enactment of an ordinance. But it doesn’t say that the municipality or county can enact ordinances that are not in conflict with the chapter, but just governing time place manner and number of establishments. So, as I as I read this, yeah, the municipalities can prohibit it, but the counties cannot. You can go a mile from here, go step city boundaries and there can be a marijuana establishment.”
Councilman Fulton pointed out that if the city wanted to discuss how municipalities in other states handled recreational marijuana sales, they did not need to look as far away as California as Maryland had recently passed the legislation.
“Right Maryland, New Jersey. Currently, there’s 39 states that marijuana is legal for recreational and or medical use,” Councilman James said. “I mean, we can find best practices. My only caution is that we do have time to find best practices and what’s best for Milford that’s my only comment.”
Pierce suggested that a business license be created for recreational marijuana businesses, but Councilwoman Wilson pointed out there was already a business license required in the city. Pierce explained that there could be an additional license criterion created specifically for marijuana sales. Councilman Boyle again pointed out the city had already approved a growing facility. Pierce explained that was for medical marijuana and that recreational was a “different ballgame.” Rutt again stated that the commission to establish rules for recreational marijuana was recently established so there were no regulations created at this time.
“I just want to say we have time and by bringing it before us now so we can at least be thinking about it,” Councilman James said. “And as the city of Milford, what we think about is what our residents want, who we represent, and we can do it. We just need to track it slowly and find best practices, apply some thoughts of like we do every other thing that comes in for our review.”
Councilman Culotta again pointed out that this should be reviewed similar to liquor stores.
“Yes. New Jersey it took over a year before their recreational cannabis was in operation for dispensaries, New York didn’t have them for eight months and some predictions are that Delaware will probably be November of 24 or up to early 25. Once you got all the regulations in place for the legal sale of cannabis,” Councilman Fulton said. “
Mayor Campbell stated that leaders of other cities were hoping to get a portion of the tax revenue that could result from recreational cannabis sales. It was suggested that the state tax would be 21 percent which should be shared between the counties and the cities. Pierce suggested that Milford wait to see what regulations were issued by the state, but that he would be able to reach out to other states and cities to see how they handled the process while the city waited for the state.
“Now I do believe we should, while we’re deciding and deliberating, we should have in our head our public safety, our chief involved in his conversation because she can help us with deciding on what we want to do. I think she should be involved in the conversation,” Councilman James said.
Councilman Fulton agreed.
I agree. Yes, I agree with what was discussed before. But I think that based upon our history thus far, is that the discussion points that Rob spent time putting together all of this, does the city council wants to prohibit the sale of recreational marijuana within city limits?” Councilman Fulton said. “That answer would probably be a no. Right. But how to, that’s where we need to have more discussions on. So, I think that that helps Rob a little.”
Mayor Campbell explained that the beach town mayors were choosing to ban the sale, but there was a question about what happened when someone who came to those towns from New Jersey and Maryland who used marijuana on the boardwalk would be handled. He questioned how Milford would handle that as well if marijuana sales were banned. Pierce stated that usage of marijuana was not the same as sales of marijuana.
“Again, one of the one of the things is that people cannot smoke marijuana on their front porch if it is within six feet of a sidewalk. They can’t smoke marijuana on the front porch,” Councilman Fulton said. “Some of those things are already published, where they can do it inside their house or in their backyard, but they can do it on the front. So, there is some guidance about streets, things like that. You can’t use it while you’re in a car at all. Because there again you have issues. So obviously, there’s a lot of things already out there. But that’s really more on the use. And I think the focus for us should be on how we want to move forward, and I think we’re on the right track. I think we’re on the right track of looking at the at the regulations that we placed upon these, the number that’s allowed. We could also do the system such as the state where they allow so many licenses and we can allow so many in this facility, not necessarily allow 100 stores but we cannot say we allow this many,”
Councilman James agreed, stating that Milford did not want a marijuana dispensary on every street corner. Councilman Culotta pointed out that even the location of liquor stores was regulated by the state, that the state code required that they be so many miles apart. Councilman Brian Baer asked if there were any dispensaries in Milford currently. Pierce stated he thought there were only one per county with one in Smyrna and one in Lewes. However, there are at least two dispensaries in Kent County, one in Smyrna and one in Felton as well as several one in Rehoboth and one in Lewes.
Council decided not to place the recreational marijuana decision on an agenda until they received information from the state about regulations. Once the state issued regulations, council would revisit the issue.
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