Several Rapid City area first responders, law enforcement officers and lobbyists spoke about their hopes and concerns for a legal medical marijuana program in front of the State Legislature’s interim study committee on marijuana this week.
The Marijuana Interim Study Committee, chaired by Sen. Bryan Breitling, R-Miller, had its first two meetings on Wednesday and Thursday at the Capitol. Rapid City lawmakers Reps. Mike Derby, Tim Goodwin, Tina Mulally and Sen. Helene Duhamel sit on the committee. The committee’s mission is to help promulgate rules for the implementation of Initiated Measure 26, which legalized medical marijuana in South Dakota.
On Wednesday, Pennington County Deputy State’s Attorney Roxanne Hammond had 30 minutes to share law enforcement’s concerns with implementation. Thursday morning, Rapid City-based lobbyists Jeremiah Murphy, representing the Cannabis Industry Association of South Dakota, and Kittrick Jeffries, representing Dakota Cannabis Consulting, spoke during public comment.
Later that morning, Division Chief and Fire Marshal for the Rapid City Fire Department Tim Behlings shared his concerns about potential fire hazards at growing facilities, and in the afternoon Captain Tony Harrison of the Pennington County Sheriff’s Office told legislators about his experiences working with drugs and narcotics and his concerns with allowing home grown pot in the medical marijuana program.
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Hammond had three concerns from the State’s Attorney’s Office; mainly, that sections 8-17 in Initiated Measure 26 deny law enforcement’s ability to search a dispensary, distribution or growing facility without a search warrant, even if the officers have probable cause. Hammond suggested the committee remove those sections; she said they take away the ability to enforce the law at all.
“It’s incredibly problematic and circumventing the role of the judiciary,” Hammond said.
She clarified she was not trying to subvert the will of the voters, but that law enforcement was concerned about their ability to continue doing its job.
Hammond was also concerned that under IM 26, non-medical patients whose doctors have diagnosed them with a condition that would allow them to apply for a medical card would still be able to use a medical defense if they were arrested for possession.
“That is absolutely rendering the prosecution of small amounts of marijuana completely useless,” Hammond said. “We’re going to have to make changes or else we won’t be able to prosecute anyone for small amounts of marijuana.”
Goodwin pointed out that Pennington County State's Attorney Mark Vargo had halted prosecutions of small amounts of marijuana while Amendment A was being litigated. He added that right now, there are too many people incarcerated in the state and that the committee’s focus should not be to try and prosecute people with small amounts of marijuana.
Sen. Troy Heinert, D-Mission, had several concerns with Hammond’s recommendations, and told her to know her audience as Pennington County passed both Amendment A and IM 26 by wide margins.
Hammond also shared concerns about the caregiver model, and said that caregivers should not have previous drug charges as she was concerned they would not follow the law. Heinert pushed back, saying prohibiting those people from participating legally would force caregivers back into the black market.
Hammond’s last recommendations were to institute a “reasonable” licensing fee for dispensaries, similar to alcohol’s $250K licensing laws, and to add a requirement that dispensaries need proof of compliance with local ordinances in order to retain their state license. She suggested repealing the problematic sections in IM 26 and replacing them with something better.
Heinert said that liquor licenses don’t cost that much in the state anymore and that the committee is not trying to price businesses out of operation, and that the committee was not designed to repeal and replace large swaths of the law.
On Wednesday morning during public comment, Murphy told the committee on behalf of the Cannabis Industry Association that around 82,000 people in the state have reported they already use marijuana, and consequently the marijuana business is already in the state. He advocated for the committee to come up with provisions for a recreational program as well, regardless of Amendment A’s outcome.
“Do we let the black market serve them, or do we stand up a legal program?” he said. “[The writers of Amendment A] put it in an amendment because they thought [the Legislature] would mess with it. Prove them wrong — create an adult use regime yourselves.”
Behlings had a half hour to tell the committee about fire service workers’ concerns about the safety of grow operations and recommended pre-establishing statewide guidelines for these facilities. He discussed how multi-tiered growing platforms make it difficult to locate exit signs, and the high concentration of grow lights, large amounts of electrical cords, elevated ropes and cabling create a concoction of fire hazards. The atmosphere in these facilities can also be flammable due to the waste created from the extraction process.
“If we have to enter that space for emergency response, that creates entanglement and entrapment problems,” Behlings said.
Additionally, growing facilities are highly secured and not easily accessible from an emergency response standpoint, he said. While retail dispensaries are the lowest-risk in terms of fire hazards, the secured nature of those establishments can also make emergency evacuation difficult.
Behlings recommended the committee establish a base set of rules around fire hazards and ensure that all cannabis facilities are fire inspected and that the equipment is also inspected. He emphasized the electrical and HVAC systems should also be designed appropriately as they draw a lot of electricity.
While the fire department does not support home growing inside residences, Behlings said if nothing else, they will provide guidance for home growers on the safe, proper techniques for doing so.
Harrison was the last speaker for the committee’s first meetings. He has experience with narcotics and he has been to Colorado and spent time enforcing marijuana laws there. While he has never used marijuana, he said he has spoken with hundreds of people who have.
Harrison’s main concerns were with the home grow system that is allowed under IM 26. He said allowing home grow or for caregivers to supply marijuana to patients is a slippery slope that can easily lead to supplying the black market. Having caps on the amount of plants could help with this. He showed the committee photos he had taken in Colorado of commercial-growth marijuana plants, which can produce over a pound of product. Avoiding home grow entirely would be the best solution, he said.
“When you have home grow, that’s where you have least amount of control, and the most room for cheating the system,” Harrison said. “The state should use South Dakota doctors and pharmacists to recommend [use] and we should regulate it like they do in Minnesota.”
In Minnesota, marijuana is legal for medicinal purposes only, and users do not have the option to purchase flower to smoke. Consequently, the lack of access to smokeables has allowed the black market to continue in that state. Harrison himself said later in his presentation that the black market persists in states where there is less legal access to marijuana.
Harrison ended his presentation by noting that he was not advocating against legalization, rather advocating for airtight laws to ensure smooth implementation and less confusion for officers.
“Once we get this off the ground, it’s difficult to reel things in. If we get laws nice and tight and put a good process in place, we can loosen it if we need to later,” he said.