October 4, 2021, Mayor's Column

On March 31, New York State joined 15 other states and the District of Columbia in legalizing adult use of recreational cannabis with the enactment of the Marijuana Regulation and Taxation Act. The law creates a regulated and taxed cannabis industry while also addressing social and economic justice issues related to the sale and use of marijuana. While the regulatory framework and legal sale of cannabis within the state is at least a year away, the law immediately legalized the possession and use of cannabis among adults 21 years of age and over.

Under the new law, cities and villages may opt out of the retail sale of cannabis

within their jurisdictions and prevent on-site consumption establishments from locating or operating within municipal boundaries by adopting a local law before December 31, 2021. Local governments, however, cannot opt out of the legal use of cannabis within their municipal borders.

In an unusual twist in the law, if a community does opt out of having cannabis establishments by December 31, 2021, they reserve the right to opt in in the future soon should public opinion change. However, if a community does not opt out by December 31, 2021, cannabis shops are allowed in one’s community in perpetuity.

Recognizing this interesting legal permutation, the Village Board of Trustees, and I believe wisely, chose unanimously to add a new chapter to our local law - Chapter 120 opting out of the licensing and establishing of retail cannabis dispensaries and on-site cannabis consumption establishments within the Village. The law is pursuant to the New York State cannabis law mentioned above which expressly authorized villages to take the above action. As a corollary, the Board of Trustees also requested the Cannabis Control Board to prohibit the establishment of retail dispensary licenses and on-site consumption licenses in Bronxville.

As background, after doing my homework, I learned that more than 45 years ago, New York State started experimenting with ways to regulate smoking tobacco indoors. Even though in the late 1980’s, the health risks associated with secondhand smoke were quite clear, the state legislature did not move forward in this area. The legislature ultimately adopted a Clean Indoor Air Act in 1989 which was a limitation on smoking in public areas where other persons would involuntarily be exposed to secondhand smoke. Though the legislation encountered legal challenges, it was upheld as a legitimate exercise of the state’s police powers. The federal courts also upheld the law’s constitutionality finding no constitutional protection in the right to smoke. The Clean Indoor Air Act has routinely been updated to incorporate new technologies specifically vaping in 2017, and is now referred to as the Clean Air Act because it also impacts where smoking is permitted outdoors. The act was also amended to include cannabis use. As a result, the current law defines smoking with an umbrella definition which includes cigars, cigarettes, pipes and any substance that contains tobacco or cannabis as well as vaping. Currently on the state level, the public health law specifically prohibits smoking and vaping in a variety of indoor and outdoor locations. They include work places, bars, food service establishments, mass transportation, transportation terminals, childcare, daycare and youth centers, public and private colleges as well as other educational buildings including dormitories. Also included are hospitals, zoos and bingo facilities. Smoking and vaping are also prohibited on school grounds or within 100 feet of the entrances, exits or outdoor areas of any private or public elementary or secondary schools, as well as playgrounds during the hours between sunrise and sunset.

Local governments have broad authority to adopt local laws protecting the order, conduct, safety, health, and well-being of persons or property within their jurisdiction. As a result of this authority, local smoking restrictions such we enacted, that prohibit smoking on municipal streets, sidewalks, parks, and others shared public and recreational spaces are consistent with home rule powers and supported by state law.

As mentioned above, courts have consistently found that there is no right to smoke - the act of smoking as a freedom of expression has been rejected unanimously by courts.  However, a review of case law cautions communities such as ours not to make an attempt to restrict smoking cigarettes or other tobacco substances differently from cannabis.

In addition, though we don’t love signs throughout the Village, under this law, though we are not obliged to erect such prohibition notices in places such as public parks, most authorities believe that signage will support and strengthen the enforceability of the local laws.

We have moved in any incremental way on this subject and we still have the legal options to prohibit smoking of any kind on public sidewalks and park benches as examples. We welcome your input on the range of places available to prohibit smoking as this is truly a community decision.