PROPOSITION 64 AND STATE LICENSING/CITY REGULATION OF MARIJUANA BUSINESSES

As you know on November 8, 2016, the voters of the State of California passed Proposition 64, the Adult Use of Marijuana Act (AUMA) by 58%.  On June 27, 2017, Governor Brown signed Senate Bill 94 into law.  Senate Bill 94 repealed the Medical Marijuana Regulation and Safety Act.  The state licensing which will be available by January 2018 will be based upon Proposition 64, the Adult Use of Marijuana Act.

The Medical Marijuana Regulation and Safety Act which has now been repealed was friendlier to the cities.  MRSA required a city license before an application for a state license could be submitted.  AUMA is different.  AUMA only says that the state license should not “conflict” with local (city and county) regulations.

It is important to understand that the new state licenses relate only to state marijuana and related laws.  With a state license whether it be for cultivation, transportation, and manufacturing or for a dispensary, there can be no criminal prosecutions.  There can be no search warrants.  There can be no arrests.  This is much different than the marijuana laws under which the police departments could obtain search warrants to basically close down a dispensary or to cut down all the plants in a cultivation even if the dispensary or cultivation complied with state law.  The medical marijuana laws provided an “affirmative defense”.  AUMA provides immunity from criminal charges.

Another point which is important to understand is that the state licenses under AUMA, which relate only to state laws, still allow the cities and counties to enact and enforce their zoning regulations.  AUMA, however, imposes new requirements on the cities (and counties) that effects how the cities and counties use their zoning against marijuana businesses.  AUMA contains language that says that a vote of the people within a locality is required for a city or county to completely ban or prohibit marijuana activities.  There would be a lot of arguments in court about this.  The cities are not accepting this language in AUMA.  The cities want to maintain control through the city council.

I think that the most important change in the state law which effects the ability of cities and counties to regulate is the fact that AUMA, for the first time, declared that the regulation of marijuana in the State of California is a matter of “statewide concern”. 

I was in the Riverside County Superior Court on Friday.  The judge was very interested in our argument that AUMA by declaring marijuana to be a matter of statewide concern implicates the “Regional Welfare Doctrine” of California zoning law.  Again, I am a former city planning director and have written many zoning ordinances and regulations.  When cities enact zoning laws they are of course required to consider the need for the zoning regulation and the fairness of the zoning regulation.  For land uses or activities which have statewide or regional impacts, zoning law requires that the city council or board of supervisors make specific findings regarding the regional impacts of their zoning regulation.  For regulation of marijuana by the cities and the counties this requirement to consider the regional impacts and to make findings is huge!  The “Regional Welfare Doctrine” will change how each city and county in California have been regulating marijuana (dispensaries and cultivations) without considering the regional impacts and the regional needs for marijuana.  Again, this is huge. 

 We have over 20 lawsuits now in court against cities and counties in Southern California over their zoning regulations which do not comply with the new state laws.  Please call or send me an email if you want more information what we are doing in court to make the cities and counties comply with the new state laws.  Cities that are not complying with the new state laws, including the “Regional Welfare Doctrine”, will not be able to close down marijuana businesses.  City regulations which do not comply with state laws cannot be enforced.

We are using these new state laws and lawsuits against the cities to protect the marijuana businesses which I represent.

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