California cannabis has a problem: roughly 80% of jurisdictions in the state prohibit cannabis stores of any kind, despite voters approving full legalization with Prop 64 (the Adult Use of Marijuana Act, now the Medicinal and Adult Use Cannabis Regulation and Safety Act, or MAUCRSA) in 2016 by nearly 60%. The result has been “cannabis deserts,” large areas of the state where people do not have access to legal cannabis storefronts at all, and instead have to resort to the illegal market.
But that’s not all—after the state said in its finalized regulations earlier this year that cannabis licensees could deliver to any jurisdiction in California regardless of whether or not it was legal under local law, a coalition of California cities sued the state’s Bureau of Cannabis Control. The cities argued that the state’s interpretation goes against one of the promises of Prop 64, which was that local jurisdictions would have the power to prohibit or restrict cannabis businesses within their jurisdictions. Supporters of the regulation claim the opposite—that local bans on delivery frustrate one of the purposes of MAUCRSA, which is to provide increased access to safe, legal cannabis for all California residents. Also, as the state points out, the statute says in black and white, “A local jurisdiction shall not prevent delivery of cannabis or cannabis products on public roads by a licensee,” and there’s no way to reconcile that language with a city being able to block deliveries.
Back to cannabis deserts. That delivery lawsuit is ongoing, and if the state wins it will at least provide some relief to cannabis-barren areas. But in the meantime, any hope of a large-scale fix to the cannabis desert problem has hit a big roadblock. California legislators had been considering AB 1356, a bill that would have mandated that every jurisdiction where Prop 64 passed with at least 50% of the vote would have to allow at least one cannabis retail store—medical, adult-use, or a mix—for every 15,000 residents. However, the bill would create an exception: if a local jurisdiction submits (or has already submitted) an ordinance or resolution to its voters to authorize or prohibit cannabis retail activity, and the voters do not vote to authorize it by more than a simple majority it (or if they vote by simple majority not to allow it, in the case of a proposed prohibition), then that local law would control and no retail cannabis operations would be required.
Now, that bill has now been shelved. It required a 2/3 vote to pass, and the bill’s sponsor determined that it did not have enough support, plus it was facing strong oppositions from cities and counties that argued it would have usurped their power to exercise local control—a core promise of Prop 64. But is that really what AB 1356 would have done? It would only apply to jurisdictions where the will of the voters in 2016 was to legalize adult-use cannabis business activity, and the bill would still give local jurisdictions the right to ask their voters again for a thumbs-up or thumbs-down on cannabis businesses.
That leads to a bigger question about MAUCRSA and cannabis legalization in California generally: did Prop 64, while giving power to cities and counties to prohibit and restrict cannabis activities, also reserve power for local legislative bodies to prohibit cannabis businesses—even when contrary to the will of their own voters? Our firm is currently fighting that fight in Kern County, where the Board of Supervisors attempted to implement a cannabis ban by legislation after the voters had expressly rejected it by referendum.
AB 1356’s sponsor says he intends to reintroduce it next year, and the delivery lawsuit is still pending, but for now the cannabis deserts will stay dry until someone finds a compromise solution.
