Pubdate: Thu, 23 Jun 2016
Source: Morning Journal (Lorain, OH)
Copyright: 2016 The Associated Press
Author: Julie Carr Smyth, The Associated Press


Part of Ohio's new medical marijuana law that sets aside a piece of 
the state's budding pot business for minorities appears to be 
unconstitutional, legal experts told The Associated Press.

The provisions were inserted into the fast-tracked bill at the 
request of Democrats, whose votes were key to its passage in both 
Republican-controlled legislative chambers. The law made Ohio the 
25th state to legalize medicinal cannabis. It takes effect Sept. 8.

The benchmarks require at least 15 percent of Ohio's cultivator, 
processor, retail dispensary and laboratory licenses to go to the 
businesses of one of four economically disadvantaged minority groups 
- - blacks, Hispanics, Asians or Native Americans - so long as an 
adequate number apply.

State Rep. Dan Ramos, a Latino Democrat from Lorain who offered the 
proposal, said he and members of the Ohio Legislative Black Caucus 
feels it's important to assure minority communities 
disproportionately punished under existing marijuana laws are allowed 
to benefit when medical marijuana is legalized.

"The state has been putting away little black and brown kids for 
selling these drugs at high rates, giving them excessive punishments, 
etcetera," Ramos said. "We wanted to be sure that businesses owned by 
black and brown people get the immediate opportunity to sell legally 
once medical marijuana becomes legal."

The provision was patterned after Ohio's minority business enterprise 
targets for government contracts. However, placing race-related 
restrictions on government-issued licenses is different because it 
necessarily shuts out some non-minority applicants, said Stephen 
Lazarus, an associate professor at the Cleveland-Marshall College of Law.

"They're not spending state money, they're just saying that this 
person cannot get a license. So, yes, it is different," he said.

"Essentially, racial discrimination is racial discrimination, whether 
you think it's for a benign purpose or malignant," Lazarus said. "The 
Constitution has to be color blind. It can't take race into account."

Ruth Colker, a constitution expert at the Ohio State University 
Moritz College of Law, said such generalized racial preference rules 
have failed to hold up in court, absent documented proof of past or 
likely discrimination - which must be distinct for each named racial group.

"This is a novel situation because the particular industry does not 
yet exist, so discrimination in that industry can only be 
speculative," she said. "But I know of no case law that permits a 
racial preference rule in a new program without a strong legislative 
record showing why discrimination is likely to occur in that new program."

Both Republicans and Democrats in the two chambers said 
constitutional concerns about the thresholds never arose as the 
legislation was being debated.

Democratic state Sen. Charleta Tavares of Columbus said medical 
marijuana licenses have the potential to fall under a "goods and 
services" definition, which would be constitutionally sound. She also 
said, if the law were challenged, documenting the disparate treatment 
of minority groups under existing marijuana laws would not be difficult.

"You can look at history, you can look at all of the areas of 
business and see the impacts, and whether or not there's been a 
negative impact for racial and ethnic minorities," she said.

State Sen. Kenny Yuko, a Richmond Heights Democrat who helped 
champion the legislation through the Senate, said a top concern was 
avoiding what happened last year when a statewide marijuana 
legalization amendment was sunk amid criticism that it created a 
monopoly for growers.

"We wanted to make sure that everybody had a fair shot . ... We 
wanted to make it not about money, millionaires and monopolies, but 
about medicine, medicine, medicine," Yuko said.

State Rep. Kirk Schuring, who led a special task force on medical 
marijuana in the House, said the legislation was "duly vetted."

"The spirit of the law is solid, which was that we wanted to give the 
minority community an opportunity to participate in the process," he said.
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MAP posted-by: Jay Bergstrom