When the federal government issued guidance regarding banking regulations for legal marijuana businesses on Feb. 14, the news was initially hailed as a historic moment for pro pot supporters.
But the buzz on the streets changed after closer scrutiny of the new guidance from the U.S. Treasury Department's Financial Crimes Enforcement network and an accompanying Feb. 14 Department of Justice memo.
The documents lay out additional policing responsibilities beyond those typically imposed by the Bank Secrecy Act and warn that financial institutions - and marijuana merchants - could be prosecuted if they don’t adhere to the eight federal priorities laid out in 2013 memo by Department of Justice.
“This is a unique and complex issue, and only legislative change can fully and completely address it,” FinCEN Director Jennifer Shasky Calvery told attendees Feb. 20 at the Florida International Bankers Association Anti-Money Laundering Conference in Miami. “We believe that FinCEN's approach best balances the multiple competing interests currently at play.”
With 21 states and the District of Columbia now allowing some form of legal marijuana use, the Washington-based National Cannabis Industry Association predicts legal marijuana sales will top $2.5 billion this year.
However, most businesses are forced to operate on a cash basis because banking laws have not kept pace.
Even with the new guidelines, credit unions are taking a guarded approach.
Critics say one major concern is that guidance can be changed more easily than law, especially if federal drug enforcement priorities change under a new presidential administration.
The Northwest Credit Union Association on its website summed up the concern by stating: “The DOJ can reverse their stance on looking the other way at any time.”
Surprisingly, Colorado, the first state to legalize recreational use, is not leading the way with marijuana banking services, according to industry insiders,
“Without a change in the federal law, this doesn't really change anything from our perspective or from the perspective of our members,” said Scott Earl, president/CEO of the Denver-based Mountain West Credit Union Association.
Read more: Washington-based credit union considers marijuana business accounts ...
In Washington, which legalized medical marijuana in 1998 and is preparing to distribute licenses for recreational stores in March, some institutions, including the $1.3 billion Numerica Credit Union in Spokane Valley, are exploring the complicated issue.
“Our primary concern is about community safety in regard to businesses operating with a large amount of cash on a daily basis, so Numerica is evaluating how to best serve members who have a marijuana business,” said Kelli Hawkins, communications manager for the 100,000-member institution.
“Numerica believes that an important facet to safety in our communities is to allow legitimate licensed businesses to be able to deposit their funds in a safe and secure institution,” Hawkins said. “To do this, we have to take our time and evaluate the process and procedures required, keeping our members’ best interests in mind.”
Numerica has already established several rules to govern its decisions, she said.
“If we make the decision to open marijuana business accounts, we will only accept deposits from licensed businesses,” Hawkins said.
“As with every decision that we make, Numerica is evaluating the risks associated with accepting these deposits, and is discussing with our regulators and the Washington Liquor Control Board (which will oversee the legal marijuana licenses) methods to mitigate those risks,” she explained. “In order to make a decision about opening deposit accounts for marijuana businesses, Numerica must slowly and carefully review the issues, establish procedures to determine what marijuana businesses to accept and establish limits on the amount of deposits.”
Numerica is not accepting those deposits now, Hawkins said, and it will take quite a while for the credit union to establish the parameters for this program.
“As we do with all business decisions, Numerica intends to enter this business slowly and safely,” she added.
Read more: State law disparities complicate legal issues ...
Another complication for depository institutions is that regulations for legal marijuana businesses vary widely by state.
For example, experts say, Washington’s medical marijuana system does not meet the eight federal priorities defined by the DOJ.
“The state legislature is working on proposals to merge medical marijuana within the recreational marijuana law, but until that happens medical marijuana businesses will not be able to obtain banking services that complies with the guidance,” said Scott Jarvis, director of the Washington Department of Financial Institutions.
Currently in Washington, medical marijuana stores and recreational marijuana stores are set up under entirely different sections of the state code.
“The medical marijuana market, which was first established after an initiative passed in 1998, has very little regulation,“ said Phil Gardner, a spokesperson for U.S. Rep. Denny Heck (D-Wash.).
Heck, along with Rep. Ed Perlmutter (D-Colo.) and a bipartisan group of 23 members, introduced the Marijuana Business Access to Banking Act (H.R. 2652) last year, which would create protections for FIs that provide services to marijuana-related businesses. The bill is in committee.
“Technically, the medical marijuana stores are not even stores at all – they’re collective gardens and patients acquire marijuana by becoming members of a collective garden,” Gardner explained. “You don’t even need a license from the state to open a collective garden/storefront. Since the regulations on the medical marijuana market are so loose, they don’t comply with the guidance laid out by the feds, and these stores are currently not going to be able to have access to banking services.”
In contrast, the state’s recreational marijuana market is tightly regulated under the provisions set out under Initiative 502, passed by voters in November 2012.
“Storefronts established under this regime should be able to have access to banking and credit union services under the new guidance laid out by the federal government,” Gardner said. “The Washington State Legislature is attempting right now to reconcile these two regimes. This would mostly take the shape of changing the medical marijuana laws to regulated them more like the recreational marijuana market.”
“However, not all states are in this same situation. For example, I believe medical marijuana stores in California are licensed by the state and may be able to have access to banking services,” he added.
For Washington institutions like Numerica, that means moving slowly.
“If we do choose to open deposit accounts for marijuana businesses, we will not be accepting funds from medical marijuana businesses,” Hawkins said. “We will only accept funds from I-502 licensed businesses.”
Jarvis said other state-chartered credit unions and banks in Washington are “reviewing the guidance with an interest in providing account services to those holding recreational marijuana licenses.”
“I would suggest there is guarded optimism that some or many entities and individuals that receive licenses from the Washington State Liquor Control Board will be able to obtain account services,” Jarvis said. “Lending, however, remains more problematic. It was not directly addressed by the guidance and federal prudential regulators have yet to opine on the guidance or the matter of lending.”
“Ultimately, it will be individual banks and credit unions that make individual decisions whether or not to provide banking services to this industry,” he added.