Last time we wrote about California’s Medical Marijuana Regulation and Safety Act (MMRSA), we delved into the issue of local law compliance for establishing “priority” licensing status pursuant to AB 266. But the MMRSA, in particular AB 243, has brought an additional layer of complexity to the local law issue in the form of a March 1, 2016 deadline for cities and counties to regulate medical marijuana dispensaries and cultivation, or to be subject to default state rules. AB 243 states:
If a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016, the [state] shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county.
Predictably, this language has city and county governments scrambling to retain local control over the regulation of medical marijuana. As we’ve seen in regulated states like Washington, Colorado and Oregon, deliberating, drafting and enacting local ordinances pertaining to marijuana often entails fierce debate among city and county council members that can drag on for months, or even years. It was common in Washington for localities to enact temporary, six-month moratoria on all commercial cannabis activity while bureaucrats completed impact studies, held public hearings, and drafted proposed regulations. And it was also common for localities to renew these six-month moratoria, often repeatedly, while council members struggled to reach a consensus.
The lesson here is that local law making takes time. Cities and counties face budget constraints and staffing shortages. Add to this that marijuana regulation is an often contentious issue on which most community members have an opinion, and it’s easy to see how regulation drafting and adoption takes a substantial amount of time.
The reaction of many California cities to this state-imposed deadline has been to simply ban medical marijuana dispensaries in their jurisdictions. The Los Angeles Times reports that 19 cities have recently banned dispensaries, including Antioch, Artesia, La Canada Flintridge, Newport Beach, Palm Desert and Pasadena. It’s a simple solution that allows local governments to retain control over marijuana establishments. But these bans create a multitude of problems, including inadequate patient access, inconsistency in regulation from city to city and county to county, and a scenario where the black market is allowed to thrive. They also tend to breed lawsuits.
Fortunately, however, Assemblyman Jim Wood, one of the authors of AB 243, recently stated that the March 1 cutoff was a “drafting error,” and that he intends to remove that deadline from the legislation. The governor’s office has confirmed its support of this revision, stating that “[t]he governor supports allowing local municipalities a reasonable amount of time to come up with regulations that work for their communities.”
The hope here is that extending the time frame for localities to draft and adopt ordinances would incentivize them to regulate rationally, rather than to hastily ban dispensaries in an attempt to retain control. But the legislature moves slowly too, and there is no guarantee it will adopt an amendment before the March 1 deadline. We wouldn’t be at all surprised to see many more California cities and counties jumping on board to ban cultivation and dispensing, “just in case” the emergency legislation falls through.
And that would be a shame.