Financial institutions remain wary of dealings with legal marijuana businesses

Many banks say FinCEN’s guidelines do not go far enough in protecting them from federal prosecution

So now that marijuana has been legalized in certain U.S. states, are the lives of marijuana sellers in these areas completely stress free? Not quite yet, they say, and their dealings with financial institutions are to blame.

Despite operating as legal businesses since the beginning of the year, many of these companies still cannot find banks willing to accept them as clients. Many of the banks are worried that they will run afoul of federal regulations that prohibit banks from accepting money gained from illicit transactions, despite reiteration from the Department of Justice that this is not a priority.

The Financial Crimes Enforcement Network (FinCEN) released guidelines on Feb. 16 for interactions between banks and legal marijuana businesses, but in practice, those regulations have perhaps added more confusion. Lenders say that the guidelines do not go far enough to ensure that financial institutions will not be prosecuted under federal law, and they also provide unwanted new requirements to screen customers for marijuana ties.

The FinCEN guidelines strongly prioritize preventing illicit activities related to marijuana sales. In the guidelines, FinCEN references a memo released by Department of Justice Deputy Attorney General James M. Cole and says, “The Cole Memo reiterates Congress’s determination that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.”

With type of stigma surrounding even legalized marijuana businesses, many financial institutions simply do not want to put up with the hassle. “Most banks are trying to avoid this and mitigate it if they inadvertently find a customer with a marijuana-related business,” said Chuck Johnston, president of North Valley Bank in Thornton, Colo., to the Wall Street Journal (WSJ).

Pot shops that spoke with the WSJ expressed similar worries. Morgan Carr, co-owner of the Wellspring Collective pot shop in Denver, said that he recently lost his bank account for the seventh time, and he needs to hire a private security firm in order to pay his massive taxes in cash. “The money I am using to pay those taxes is the exact same money that I can't even deposit into my own account,” he added.

So what’s the next step? Stronger regulation is one potential outcome, but following FinCEN’s February guidance, the federal government has been silent on the matter. FinCEN said that it believes its guidelines are having the intended effect, with FinCEN director Jennifer Shasky Calvery saying in March that the agency had received dozens of suspicious activity reports related to marijuana businesses.

However, U.S. Attorney General Eric Holder has come out in favor of bank access, saying in January, “There’s a public safety component to this. Huge amounts of cash, substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited, is something that would worry me, just from a law enforcement perspective.”

 

For more on legal marijuana in legal news, check out these most recent InsideCounsel articles:

Treasury releases rules for banking with marijuana money

Marijuana laws fodder for compliance mayhem

AG Eric Holder says legal marijuana businesses should have bank access

Marijuana an increasingly attractive investment opportunity despite unclear financial regulations

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Zach Warren

Zach Warren is Assistant Editor of InsideCounsel magazine, where he oversees online content submissions and administers InsideCounsel's enewsletters. Zach specializes in new media and multimedia...

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