June 29, 2019

Illinois Recreational Marijuana Legislation and its Impact on Local Government

Illinois Governor J. B. Pritzker signed into law recreational marijuana legislation this Tuesday, after the Illinois legislature voted by large margin to approve the landmark 700-page Cannabis Regulation and Tax Act (“the Act”).  A copy of the bill voted upon is located here but the Act has yet to be fully published online. The new law is expected to go into effect the first of next year.

Municipalities and other local units of government should thoroughly understand how they may be impacted under the Act along with local government powers of enforcement and regulation under the Act. 

Prohibited Use Enforcement

Local government can enforce prohibited use as outlined in the Act, such as use by persons under twenty-one years old, smoking in a public place or the use of cannabis on the grounds of any preschool, primary or secondary school.  

Stricter Construction of Authorized Use Is Not Permitted

Local government cannot, however, unreasonably prohibit the private use of cannabis authorized by the Act and cannot prohibit home cultivation, for persons already registered under the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (“Pilot Act”). See Article 10 of the Act regarding “Personal Use of Cannabis”.

Home cultivation is restricted by the Act itself, however, and these provisions are subject to local enforcement.  For instance, home cultivators cannot legally grow cannabis in areas subject to public view and must take reasonable precautions to ensure the cannabis is secure, to prevent unauthorized access or access by persons under twenty-one years old. 

Furthermore, home cultivation can only occur on residential property that the cultivator is lawfully in the possession of or with the consent of the person lawfully in possession of the property. Home cultivators additionally may not possess more than five cannabis plants within a dwelling unit. 

Power to Regulate and To Revoke Licenses

While local governments are often charged with the oversight of business licensing, as well as the right to revoke licenses for violations of local ordinances, under the Act, the licensure and oversight of dispensing organizations will fall under the regulatory power of the Illinois Department of Financial and Professional Regulation (“IDFPR”). The licensure of cultivators and transporters will fall under the regulatory power of the Illinois Department of Agriculture (“IDA”). The IDFPR and IDA will also be charged with the power to impose penalties or to suspend or revoke the licenses of cannabis businesses for violations of the Act and any rules adopted under it.

Local Government Can Ban Recreational Cannabis Businesses Entirely

Unlike the Pilot Act, which expressly prohibits full prohibition of medical cannabis within local government boundaries, the Act provides municipalities the right to prohibit recreational cannabis businesses within their borders altogether. 

Time, Place, and Manner Restrictions Placed on Recreational Cannabis Businesses 

Where recreational cannabis businesses are not barred however, home rule municipalities or any non-home rule county within the unincorporated territory of the county (“home rule units”) are permitted, pursuant to the Act, to enact reasonable zoning laws or resolutions regulating cannabis businesses, including placing reasonable time, place and manner restrictions on these businesses. 

This may include enacting regulations governing the number, type and location of businesses permitted within the home rule unit’s municipal boundaries, provided that the ordinances or resolutions enacted are not in conflict with the Act or the rules adopted under the Act.  

Home Rule Unit Legislation Will be Governed by Reasonableness Standards 

The Act is noticeably silent regarding the definition of reasonableness with respect to time, place and manner restrictions. Notably however, Article VII, Section 6 of the Illinois Constitution gives home rule units broad discretion pertaining to their government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare.

Since cannabis is still illegal under federal law, constitutional challenges regarding a home rule unit’s time, place or manner restrictions under the First Amendment of the U.S. Constitution are unlikely. 

Nonetheless, the Act is likely to be interpreted by administrative oversight bodies and the judiciary, under administrative review, in a manner that requires home rule unit legislation to conform with and be governed by the same reasonableness standards used to assess the legality of home rule unit legislation involving non-cannabis businesses, which at times may implicate free speech and oftentimes implicate standards of due process and equal protection under the law. How exactly administrative bodies and the judiciary will interpret reasonableness under the Act however is at present, conspicuously unclear.

Nonetheless, it is always prudent for home rule units to draft time, place and manner ordinances in a content neutral and narrowly tailored fashion and in the interest of a significant government interest such as protecting the health, safety and welfare of their communities. If they do so, challenges to time, place and manner restrictions are far less likely to succeed against any home rule unit ordinance enacted.

It is essential that local governments have a thorough understanding of the law and how they and their law enforcement departments may be impacted by this new legislation.  The attorneys at Ziliak Law, LLC are available to assist you in navigating the law, and we are available to provide training to municipal boards and law enforcement regarding the nuances of the Act, including proper home rule unit legislation, as permitted under the Act and its proper enforcement. Our attorneys are also available to help new cannabis businesses with licensing and compliance under the Act. 

Interested in training, consultation or in starting a cannabis-based business in Illinois?  The attorneys at Ziliak Law, LLC can help. 

Article by Eydie R. Vanderbosch.



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