RPP Election Guide: Everything you need to know about Issues 2 & 3

By Richie Mulhall & Ian Klein

The drive to legalize marijuana and the fight to inhibit legalization has been a tug-of-war controversy that will finally come to a head this Tuesday when Ohio voters will decide on Issues 2 and 3.

The proposal to legalize marijuana has proven to one of the most polarizing issues on the ballot this fall, dividing politicians and advocacy groups alike, with Issue 3 ­– also known as the Ohio Marijuana Legalization Initiative – being backed by ResponsibleOhio and Issue 2 – also known as the Ohio Initiated Monopolies Amendment – being backed by many politicians including Attorney General Mike DeWine (R) and Gov. John Kasich (R).

With so many reports out there about Issues 2 and 3 and so many facts swirling around, this article will attempt to break down both issues so that when it comes time to vote, all voters will well-educated before making their decision when the polls open this Tuesday.

What is Issue 3?

Issue 3 Official Ballot Text/Language

The Ohio Marijuana Legalization Initiative, also known as Issue 3, would “grant a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes,” according to the official ballot text of the issue upon which to be voted.

What would Issue 3 do?

• The proposed amendment would allow adults 21 years and older to purchase, possess or transport and share up to one ounce of marijuana for medicinal or recreational use. It would also allow a person with a license to grow, use and share up to eight ounces of homegrown marijuana, including up to four flowering plants at a time. It is important to note though that people could not sell or transport homegrown marijuana.
• Create a network of 10 authorized growing facilities, called Marijuana Growth, Cultivation and Extraction facilities, operating independently of one another to prevent collusion.

• Give exclusive rights for commercial marijuana growth, cultivation and extraction to the self-designated owners of these 10 parcels of land statewide. The 10 farm locations would be in the counties of Butler, Clermont, Franklin, Hamilton, Licking, Lorain, Lucas, Delaware, Stark, and Summit. Those 10 sites will grow about 538,000 pounds of marijuana per year, and each growing facility is expected to create 300 jobs filled by unionized workers.
• Allows the state to issue additional licenses to more growers after a four-year waiting period if demand is not being met.
• Permit the retail sail of marijuana at 1,100 locations in Ohio. Retail shops would be limited to one per 10,000 people, allowing 1,159 retail outlets across the state, according to a recent Akron Beacon Journal article.
• Limit the Ohio legislature’s and local government’s ability to regulate the marijuana industry.
• Create a marijuana incubator in Cuyahoga County and marijuana testing facilities near colleges and universities.
• Legalize the production of marijuana-infused products such as candies, ointments and other edibles.

Where can marijuana be smoked?

Under the terms of the amendment, smoking marijuana in public places would still be illegal.

Smoking marijuana is also prohibited within 1,000 feet of existing churches, schools, playgrounds, libraries, day-care centers and other similar public facilities and entities.

Students, faculty and staff at Kent State University and other public universities across the country will also be prohibited from smoking weed on campus because the federal law that criminalizes marijuana trumps the state law.

“Even if [Issue 3] passes, we have a federal prohibition for marijuana use,” Kent State President Beverly Warren said. “Because we receive federal funds and are governed by federal regulations, we cannot condone the use of marijuana as a campus.” 

How would the industry be regulated?

If Issue 3 passes, it would create a new state agency called the Marjuana Control Commission, which would be the overseeing body and primary agency in charge of regulating the marijuana industry.

The commission would be composed of seven-member Marijuana Control Commission, with members appointed by the governor. The members of this commission would have the responsibility to write most of the industry’s rules and procedures, including packaging requirements and health and safety regulations.

The commission would issue licenses for stores and dispensaries, marijuana product manufacturers and home growers. An annual audit will also be conducted to determine if the demand for marijuana is being met by the 10 commercial growing facilities. If demand is not met, the commission could suspend or revoke commercial grow licenses and after four years, add an 11th site if demand is not being met, according to Ballotpedia.

How “taxing” is Issue 3?

The proposed amendment would set tax rates of 15 percent on commercial marijuana growth and processing and 5 percent on retail sales, with revenues being allotted to local governments, the Columbus Dispatch reported.

ResponsibleOhio estimates the effective tax rate would average to about 23 percent, with the effective rate on edibles at roughly 26 percent and the effective rate on flowers at about 21 percent, according to Cleveland.com.

According to other reports, Issue 3 supporters estimate that legalization would generate $554 million in annual tax revenues in just four years after the industry is fully operational.

“That [revenue] is going to go to firefighters, police officers, infrastructure repairs,” ResponsibleOhio spokesperson Faith Oltman said.

Five percent of that tax revenue would go to municipalities and townships on a per capita basis for public safety and health services, according to Cleveland.com. Thirty percent would go to each county for public safety and health services. Finally, 15 percent would help fund the commission, a marijuana business incubator, non-profit medical marijuana dispensaries, mental health and addiction prevention and treatment programs, and a program to subsidize medical marijuana for patients who might not be able to afford the full cost.

Who can use medicinal marijuana?

Regardless of age, anyone who receives a physician’s certification to take cannabis to treat a debilitating medical condition can use medicinal marijuana. The qualifying medical conditions under which patients can use cannabis are as follows: cancer, glaucoma, HIV or AIDS, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, sickle-cell anemia, ulcerative colitis, dementia, Alzheimer’s disease, cachexia, post-traumatic stress disorder, severe pain, severe nausea, seizures, including those that are characteristic of epilepsy, or persistent muscle spasms, including those that are characteristic of multiple sclerosis.

According to the Columbus Dispatch, marijuana for the purpose of medical use could be purchased at designated non-profit dispensaries at the lowest permitted rate. People who meet income standards could qualify for some discounted rates. Medicinal marijuana would be readily available to minors with the above medical conditions with a doctor’s prescription and parent or guardian approval.

“Offering treatment and providing medicine to people who need it and the compassionate care that medical marijuana can provide,” Oltman said.

How will legalization be recognized in the workplace?

Using marijuana while on the job will be at the employer’s discretion. There’s a chance that some employers might permit ingested forms of marijuana, but they might also have a no-tolerance policy and treat marijuana much like alcohol. Employees could still be drug tested and fired if they test positive for marijuana.

The rationale behind this is that marijuana, despite Issue 3, is illegal according to federal law. Judges have ruled that state marijuana laws will not prevent employers from setting and enforcing their own drug-free policies in the workplace.

However, Issue 3 does require employers to allow medical patients to consume medicinal marijuana as recommended and prescribed to them by a doctor.

Is driving while under the influence of marijuana illegal?

Marijuana will be treated much like alcohol in this regard. Issue 3 prohibits operating a vehicle while under the influence of marijuana.

What is Issue 2 and what would it do?

Issue 2 Official Ballot Text/Language

The Ohio Initiated Monopolies Amendment, also known as Issue 2, is a constitutional amendment proposed by the Ohio General Assembly that would ban special interest groups from amending the Ohio Constitution to create monopolies, oligopolies and cartels.

What are the voting scenarios?

Amidst the talk and rumors of what would happen if Issue 3 and Issue 2 pass or fail, here are a few scenarios of what might play out, per Fox 19 News:

If Issue 3 passes and Issue 2 fails: The Ohio Constitution would be amended with Issue 3, and its provisions will take effect 30 days after the election because it is a citizen-initiated amendment. The governor must then appoint the seven members of the Marijuana Control Commission within 45 days of the passage of the amendment. The commission will write the regulations to govern the industry, including the operation of the 10 facilities and establishment of the retail stores.

If Issue 3 fails and Issue 2 passes: Legalization is dead. The passage of the Ohio Initiated Monopolies Amendment will most likely prevent Issue 3 from taking effect, allowing the Ohio Ballot Board to regulate further ballot initiatives and measures involving monopolies.

If Issue 3 and Issue 2 both fail: Nothing changes. The current laws in place will unchanged. Marijuana will remain illegal, and the proposed violations under Issue 2 and board review would not be implemented.

If Issue 3 and Issue 2 both pass: This is where things get tricky

Spurring controversy

The marijuana proposal from ResponsibleOhio and the anti-monopoly language proposed by the General Assembly are in direct conflict with each other, as Issue 2 was created to essentially counter Issue 3. Many politicians and supporters of Issue 2 have tried to argue that such is not the case, but lawmakers crafted the amendment and pushed it to the ballot with the full intention of derailing Issue 3, which would grant 10 facilities the exclusive right to commercially grow marijuana.

The section of the ResponsibleOhio proposal that creates a private marijuana monopoly and legalizes a new marijuana industry dependent upon 10 predetermined growing sites, clashes with the General Assembly’s proposal, which seeks to prohibit the creation of such commercial monopolies that gives exclusive rights to self-designated landowners.

Issue 2 was drafted to combat Issue 3 because Issue 3 would commercially monopolize the industry for at least four years (potentially longer if the Marijuana Control Commission doesn’t approve additional growers sooner rather than later). Issue 2, on the other hand, prohibits such monopolies and cartels from being made.

“In such cases, the Ohio constitution clearly establishes a resolution to this conflict by declaring that the amendment that receives the greater number of votes prevails,” Ohio Secretary of State Jon Husted said in a recent press release.

The Ohio Constitution’s precedent dictates that if both conflicting amendments pass, the one that garners the most votes trumps the opposing amendment and becomes law; however, there is a caveat to this because the constitution also states that citizen-initiated amendments like Issue 3 can’t become law until 30 days after the election, whereas legislature-initiated amendments like Issue 2 take effect immediately.

Thus, should both proposed measures be approved, the anti-monopoly amendment explicitly outlined in Issue 2 will go into effect first, Husted said. The provision of the amendment banning a monopoly from inclusion in the state’s constitution would serve as a roadblock to Issue 3.

In other words, if both issues pass, they offset each other and nothing happens, according to Husted.

“In either circumstance, should the legislature’s amendment be approved at the ballot box, it will establish dominance and prevent ResponsibleOhio’s provision from taking a place in the state’s constitution,” Husted said.

Proponents of Issue 3 have refuted Husted’s claims that the amendment aimed at blocking the marijuana plan would prevail because it would take effect first, arguing that marijuana legalization backers who disagree with Husted’s interpretation would likely challenge it in the Ohio Supreme Court, leaving the ultimate decision in the hands of the justices.

Oltman said the anti-monopoly amendment was aimed at deterring marijuana legalization. ResponsibleOhio plans to campaign against the anti-monopoly issue in addition to supporting its marijuana legalization issue.

“The only certain thing if both amendments pass is that it’s going to be tied up in litigation,” Oltman said.

Further Issue 3 controversy

One powerful opponent of Issue 3 is Ohio Attorney General Mike DeWine.

DeWine recently made a three-day “fact-finding trip” to Colorado to assess the aftereffects of the passage of Issue 3 in the state, according to Cleveland.com.

DeWine was shocked to find that that 45 percent of legal marijuana sales in Colorado are in the form of edibles, such as candy. He was also appalled by Colorado’s rising number of marijuana-related emergency room visits, particularly for children and calls to poison control centers due to accidental ingestion.

Attorney General’s Office Spokesman Dan Tierney said DeWine’s chief concern is lack of restrictions on edible forms of marijuana.

“The concern is that it’s almost impossible to tell these products apart from regular products, so it poses a unique poison problem to children in that they’re creating products that look identical to regular products,” Tierney said. “[In Colorado] a large portion are edibles. That’s where the market’s gone, and that’s concerning to a lot of people.”

The lack of regulation or quality control of products, he said, is something he fears would happen in Ohio if Issue 3 passes Tuesday.

The controversy with Issue 3 doesn’t stop there.

The thought process behind legalization in Colorado was that law enforcement officials wouldn’t have to worry about busting illegal marijuana sales, but such has not been the case.

There is still a thriving black market in Colorado, with 45 percent of marijuana sales still deriving from the black market, Tierney said. People in Colorado still engage in selling marijuana illegally to avert paying taxes.

“In Colorado you can buy marijuana legally, but it’s taxed,” Tierney said. “People are gravitating toward illegal marijuana because it’s not taxed; they’re selling it below the market rate for what you can buy illegally.”

The black market system doesn’t dissipate over night, and in Colorado, the price differentiation between legal marijuana and illegal marijuana allows the black market to persist. Tierney assures that if Issue 3 passes, the black market won’t go away anytime soon.

“That black market issue is not something I think people expected to happen, but it’s something that they have not been able to stop,” Tierney said.

ResponsibleOhio disagrees.

“The war on drugs largely hasn’t done anything for our society, and in Ohio, we spend about $100 million every year enforcing sales marijuana laws,” Oltman said. “There’s so many societal detriments to marijuana prohibition.

“We’re going to make marijuana safe and well-regulated and bring it out of the shadows, smother the black market and give our law enforcement the opportunity to go after real problems like the Ohio heroin epidemic,” Oltman said. “We think this will be a positive for law enforcement.”

Oltman argues Issue 3 will not create a monopoly, but rather, competition among the 10 startup farm facilities.

“The growers know that their biggest competitor out of the gate is the black market,” Oltman said. “That works in the favor of the consumer because they’re going to want to keep prices low to smother the black market. They’re going to know it’s safe if they buy it from the commercial industry rather than the black market.”

The problem is that Colorado doesn’t have the manpower right now to oversee the growers and regulate the industry, which is why Oltman believes Ohio needs to be as responsible as possible.

“They’re not colluding, they’re not working together, and if they do, they’ll lose their licenses,” Oltman said.