Recreational Marijuana Goes Legit in Ohio

As of Thursday, Dec. 7, 2023, non-medical marijuana was legal to possess and use in Ohio, following voters’ overwhelming passage of citizen-initiated Issue 2 in the Nov. 7 general election.

Oh, goody, time to go shopping for flowers, gummies, vape cartridges and other weed concoctions, right? Well, no.

As New Year’s inched closer, more questions than answers remained about legalization of recreational marijuana in Ohio, including, perhaps foremost, when citizens 21 and over can legally purchase it in the state.

Until that happens, Ohioans without medical marijuana cards are in a bizarre limbo where they are allowed to smoke or consume something that they can’t legally purchase.

In the month after Nov. 7 when Issue 2 – a measure “to commercialize, regulate, legalize and tax the adult use of cannabis” – won the approval of 57% of registered Ohio voters, the Ohio General Assembly considered a variety of legislative changes to the new law. The legislation ranged from heavy-handed proposals to gut key provisions, including allowing home-grown pot, to less-onerous changes.

However, despite competing House and Senate bills, the Ohio General Assembly recessed for its annual winter break on Dec. 13 without approving any bills related to Issue 2.

As a result, the issue, as worded, is the law of the state. The legislature isn’t expected to meet again until Jan. 24.

Ohio Issue 2, an indirect citizen-initiated statutory issue, among other things legalizes possession of up to 2.5 ounces of marijuana by people 21 and over, permits its use, allows households to grow up to a dozen marijuana plants, permits the sale of marijuana by state-licensed dispensaries, and creates the Division of Cannabis Control in the Ohio Department of Commerce.

In south-central and southeast Ohio counties, the election results for Issue 2 were mixed (the rounded-off yes percentages are in parentheses): Ross County (53), Pike (47), Scioto (47), Pickaway (48), Fayette (48), Vinton (52), and Jackson (49). Liberal college-town Athens’ home county, Athens, not surprisingly had the highest yes vote in the state, 69%, joining many big-city counties with a heavy yes margin.

The flurry of legislative activity in the first two weeks in December mainly involved issues that should be dealt with sooner rather than later, such as the amounts of marijuana that can be grown at home and where to allow pot smoking. Issues surrounding the eventual licensing of recreational marijuana dispensaries and the legal sales process don’t need to be addressed quite as urgently.

Legal Recreational Sales Via Medical Dispensaries?

However, the governor and state Senate leaders have pushed to get legal sales up and running as soon as possible by allowing existing medical dispensaries to sell the non-medical stuff. Otherwise, licensing of outlets for recreational weed won’t happen till late summer at the earliest.

In a Dec. 13 article in the Columbus Dispatch, state Sen. Rob McColley, R-Napoleon, said, “We understand that we have to protect that access to products while also not allowing the black market to get a head start on the legal market. It is our intention to allow the legal market to go into effect as soon as possible.”

Those arguments likely confused the great number of Ohioans who have been accessing pot on the black market since they were teenagers. Illegal weed already has a substantial foothold.

The Details of Legal Recreational Weed

For now, pending probable legislative changes, Issue 2, as approved by voters, is the law in Ohio.

This means that adults 21 and over can possess up to 2.5 ounces of marijuana (and up to 15 grams of marijuana concentrates). Those with green thumbs (or not) are free to grow up to six marijuana plants at home (or up to a dozen plants per household). Where they’ll get “legal seeds” before non-medical sales begin remains uncertain.

Parts of issue 2 will be delayed while a bureaucratic framework is put together including licensing, regulation, and taxation of recreational marijuana sales. Under the initiative, non-medical marijuana sales will be taxed at 10 percent, with tax revenues funneled into four areas: a social equity and jobs program, communities with dispensaries, a substance-abuse fund, and administrative costs.

Medical marijuana in Ohio is taxed at 5.75% (more on this below).

The tax rate for recreational marijuana, where that revenue will go, and allowable levels of THC content, are all likely areas for legislative changes. The adjustments almost certainly will tighten rather than loosen provisions in Issue 2, for example, raising the tax rate and lowering the THC maximums.

Meanwhile, legislators don’t seem interested in funneling tax revenues to anything as “woke”-sounding as “social equity and jobs.” Rather, some of the proposals coming from the Senate and House have the money redirected toward such things as law enforcement training and jails.

Can You Smoke Legal Marijuana in Public?

In a rare instance of agreement, both Republicans and Democrats in the Legislature have said they want clarification on rules governing public smoking of legal marijuana in Issue 2. According to the Ohio Department of Commerce’s FAQ page on Issue 2, “(A) non-medical cannabis consumer who uses non-medical cannabis in public areas is guilty of a minor misdemeanor. Additionally, Ohio’s law prohibiting smoking or vaping in public indoor spaces applies to marijuana as well (as tobacco).”

How businesses with outdoor facilities – such as restaurants and bars – handle this issue remains up in the air (so to speak). The law may allow for use of legal recreational marijuana to be regulated the same way as alcohol, with open container (or the marijuana equivalent) prohibited in public spaces but allowed in a licensed establishment (as long as it’s outside). But, then again, legislators may balk at any public consumption of weed or weed products.

How Many Legal Non-Medical Pot Dispensaries?

Among the murkier aspects of Issue 2 is how many dispensaries will be licensed for selling recreational marijuana.

For example, will Chillicothe or Portsmouth have one every other block? Will smaller communities like Waverly and Wellston get any at all?

According to the Department of Commerce, the initiated statute (Issue 2) lays out a framework for licensing dispensaries that allocates one to three non-medical dispensary licenses to existing medical marijuana cultivators (growers) and dispensaries. Several dozen licenses will be available to applicants “with a preference to participants of the Cannabis Social Equity and Jobs Program, which the statute prescribes to be established by the Department of Development.”

As stated, all of this is subject to change at the whim of the General Assembly.

What Will Happen to the Black Market for Marijuana?

What about the existing black market for marijuana in Ohio? Will your friendly neighborhood marijuana dealer have to get a legit job?

Plenty of evidence from other states that have legalized recreational marijuana suggests that legalizing non-medical weed doesn’t kill the market for the black-market stuff.

For various reasons, including cost, many Ohioans will continue to obtain their pot from existing connections, whether their brother, aunt, neighbor, co-worker, or the sketchy guy who delivers their pizza.

Articles posted in the past two years from the CATO Institute, a libertarian think tank, and the Rutgers Center for Alcohol and Substance Abuse Studies suggest that rather than suppressing black market sales and use of marijuana, legalizing recreational marijuana, if anything, has resulted in an increase of black market involvement. The CATO report, not surprisingly, blames the high taxes attached to marijuana sales in states with legalized non-medical weed.

Meanwhile, people with an Ohio medical marijuana card seem unlikely to switch to the legal recreational stuff, since taxes on the non-medical weed likely will be significantly higher than the 5.75% tax currently attached to medical marijuana sales (plus local sales taxes ranging from 0.25 to 2.25%).

In Athens, the total tax on medical marijuana purchases is 7.25% according to an employee at Harvest of Ohio in Athens; in Chillicothe at the Sunnyside Dispensary, it’s 7.5%, an employee said.

Some proposals call for raising Issue 2’s 10% tax rate on non-medical marijuana to 15%, not including potential state and local sales taxes.

For the same reason that medical marijuana card holders likely won’t switch to recreational purchases, the many Ohioans who get their weed from accommodating spouses, family members, and friends with medical marijuana cards likely won’t switch to legal non-medical marijuana.

Hey, Man, Can I Get High at Work Now?

Probably not. Issue 2’s wording makes it clear that employers can continue to prohibit employees from consuming marijuana at work, as well as coming to work high. They’re not restricted from mandating drug tests for current and prospective employees, and, in fact, some legal experts predict that that in certain fields, including medicine, more testing is likely, since, presumably, more people will consume recreational marijuana now that it’s legal.

So, There You Have It

While this isn’t everything you need to know about Issue 2, this blog covers the basics. For more esoteric information about legalization of non-medical weed in Ohio, the Moritz College of Law at Ohio State has posted an analysis of Issue 2 that digs deep into the details –while stipulating that it’s all subject to change when the General Assembly returns in late January.

Some important limits of Issue 2 according to the Moritz analysis include:

• Public consumption of marijuana remains against the law.
• Individuals are prohibited from operating nearly any sort of vehicle, from cars to bikes to boats, while using marijuana or under its influence.
• Individuals cannot smoke, vape, or use any “combustible marijuana product” while in cars, bikes, boats, etc.
• You still cannot legally buy weed in states where it’s legal, such as Michigan, and bring it into Ohio.
• Individuals are still barred from purchasing and owning firearms if they consume marijuana.
• There is no guarantee that adult-use recreational marijuana businesses will be available where you live, and municipalities can still approve ordinances to prohibit these businesses.

This article was written by Terry Smith, a consultant working with Warren Law Firm, & Eden Marketing.

In 2020, Terry left The Athens NEWS in Athens, Ohio, after editing that award-winning publication for 34 years. His columns and editorials have placed first in the Ohio News Media Association’s annual weekly newspaper awards in recent years. Before returning to Athens and his alma mater, Ohio University, in 1986, Smith reported for newspapers in Ohio, Arizona, Idaho, Colorado and West Virginia. He is currently freelance editing and writing from his home in Southern Ohio.

Featured Image by Esla Olofsson; inset image by Grav; and Richard Tea.