Legislature 2021

Legalizing recreational marijuana may still be up to parishes, municipalities

A sign for a marijuana dispensary in Washington state. Photo by Robert Ashworth
A sign for a marijuana dispensary in Washington state.

Update: House floor debate on the bill is scheduled for Monday, May 10.

Even if the substitute bill to legalize marijuana passes the Legislature and is signed into law, the battle still may not be won — or lost. 

Under the provisions of HB699 by Rep. Richard Nelson, R-Mandeville, parishes or municipalities would still be able to “opt out.” Nelson’s original bill, HB524, called for a statewide referendum before it could be legalized. But, as Nelson noted during the hearing last Tuesday in the House Committee on the Administration of Criminal Justice, his staff found that when a similar referendum idea was passed following the repeal of Prohibition in 1933, the Louisiana Supreme Court ruled that the Legislature could not “delegate its lawmaking authority” to the voters except for constitutional amendments.

The substitute bill was reported from committee on a 7-5 vote, with a peculiar twist: Three Republicans and an independent joined three Democrats in voting for the bill, while five Republicans voted against it, among them Rep. Jonathan Goudeau, whose District 31 overlaps western Lafayette and eastern Vermilion parishes.

Another local member, Rep. Marcus Bryant, D-New Iberia, whose District 96 includes Lafayette Parish east of the airport, complimented Nelson on the bill and said he supports it, but left the hearing before the vote. 

“We have to deal with the opioid epidemic our kids are going through,” Bryant said during discussion of the bill, arguing that drug-fighting efforts are being wasted on marijuana. “The state knows that there’s bad and good with all things, but the good always has to outweigh the bad, and we’ve got to speak to that.

“Thank you for what you’re doing and keep on going,” Bryant told Nelson.

Goudeau tried to add an amendment that legalization couldn’t take effect until the passage of Nelson’s marijuana taxation bill, HB434. The amendment failed on a 6-6 tie. 

“Do you realize this is going to raise the crime rate?” Goudeau challenged Nelson.

“I think if you look at the data from other states, the data doesn’t show any significant increase in crime,” Nelson responded. “Marijuana is one of the biggest soft crimes in Louisiana, and it’s no longer going to be a crime.”

“This bill seems to be splitting Republicans, who have a long record of punitive measures against drugs,” Dr. Pearson Cross, a political science professor at UL Lafayette, tells The Current. “That being the case, other factors than party may be the most important for the success of this bill. What those factors are remains to be seen.” 

One such factor is opposition from law enforcement. Michael Renatza, executive director of the Louisiana Sheriff’s Association, and Loren Lampert, ED of the Louisiana District Attorneys Association, sat side-by-side to urge the committee to scuttle the bill. Both cited statistics of increased organized crime activity in states where pot has been legalized, as well as an increase in marijuana-related traffic accidents and house fires. 

They also cited statistics from other states and the CDC of a correlation between legalization and an increase in teen suicides — although teens supposedly would not be permitted to buy or smoke pot under Nelson’s bill.

“The cartels are coming,” Renatza warned. “Arrests will go down, but there will be a significant increase in cartel-driven crimes.”

“I’ve never used marijuana, and I won’t use it if it’s legalized,” Nelson rebutted. “But I think it’s very, very clear that the benefits outweigh the harm.”

Nelson argued that 18 states have now legalized marijuana and that polls show “marijuana is more popular than Trump in Louisiana.” 

HB699 would require licenses for the cultivation, processing, transportation and retailing of marijuana, and permit public smoking of marijuana by people 21 and over, but not in “drug-free zones” designated by law. Selling to minors would carry a $500-$1,000 fine, so “cannabis carding” would be required. Moreover, stores selling cannabis would be permitted to have a website and two outdoor signs, but would be barred from advertising.

Another major change from the original bill is that HB699 shifts the regulatory authority from the Department of Health to the commissioner of the Office of Alcohol and Tobacco Control, who would be responsible for screening applicants for licenses and enforcing the age and other restrictions.

The Department of Revenue would be responsible for collecting whatever taxes the Legislature eventually levies, which Nelson estimates would be between $100 million to $200 million, with 20% going to law enforcement under HB434. That is one of Cross’ “factors” that appeals to Republicans.

But buried deep in the 22-page bill is the clause that reads, “The commissioner shall not issue any license authorized by the provisions of this Part which has been prohibited by the local government of a parish or municipality.” 

“What I’ve put into the new substitute bill is an opportunity for parishes and municipalities to opt out,” Nelson told the committee, of which he is a member. “They can say, hey, we want to opt out of having any licenses issued for our city.”

That raises the potential for “cannabis commuting,” much the way people commute to casinos on Native American Indian reservations or state-licensed riverboat casinos to gamble legally. 

Louisiana, despite its social conservatism, has traditionally had a wink-and-nod attitude toward sinning. For decades it was the only state with an 18-year drinking age, making it an alluring tourist destination for college students from neighboring states. After Congress passed the Minimum Drinking Age Act in 1984, setting 21 as the minimum age, Louisiana didn’t follow suit until 1987. Even then, it was only to avoid losing Louisiana’s federal highway funding. In 1996, the Louisiana Supreme Court invalidated that law as age discrimination, but reversed itself a few months later at the urging of Attorney General Richard Ieyoub. 

In 2007, Louisiana was the last state to outlaw cockfighting. 

“It strikes me that the correct analogy for this current bill is for pro-gambling or anti-gambling parishes,” adds Cross. “Marijuana is like alcohol in that it will not easily be contained in only the parishes that vote to have it. Looking at the long history of legislation regarding items and activities considered ‘sinful’ on some level, I’d guess that representatives from the North Louisiana parishes would be likely to vote against marijuana decriminalization while those from South Louisiana parishes would be more likely to support the marijuana bills.”

The bill has not yet been scheduled for House floor debate. The Current has polled the other legislators from Lafayette on how they plan to vote.

“I’ve gone back and forth on this,” admits Rep. Julie Emerson, R-Carencro. “I really need more time to study it.”

Through his legislative assistant, Sen. Gerald Boudreaux, D-Lafayette said he “intends to listen to the debate” on the issue before making a decision, declining to weigh in further ahead of his vote.

Republican Reps. Stuart Bishop, Jean-Paul Coussan and Gerald Beaullieu have not responded, nor have Democratic Rep. Vincent Pierre or Republican Sens. Page Cortez or Bob Hensgens.

If it does pass, Gov. John Bel Edwards has not committed himself to signing it.