Common Questions Under Proposition 64, The Adult Use Of Marijuana Act

By Stephen A. McEwen

Will cities need to change their marijuana definitions?

Yes.  The AUMA makes changes to the marijuana definition in Health and Safety Code section 11018.  These changes would have the effect of broadening the scope of the marijuana definition.  Cities should revise their own marijuana definitions accordingly to avoid any potential loopholes.

What will be the impact of the AUMA’s provision regarding personal cultivation?

The AUMA will make it lawful for individuals to cultivate up to six marijuana plants and to possess the marijuana produced by the plants.  (Health & Safety Code § 11362.1(a)(3).)  However, in order to avoid a situation in which multiple marijuana users move into a private residence together and establish a large personal grow operation, the AUMA states that no more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence or upon the grounds of that residence at one time.  (Health & Safety Code § 11362.2(a)(3).)   

What does the AUMA’s personal cultivation rules mean for multi-unit dwellings?

Under section 11362.2(b)(5), the term “private residence” includes “a house, an apartment unit, a mobile home, or other similar dwelling.”  Theoretically, each separate dwelling unit in a multi-unit building could have up to six marijuana plants growing at any one time, provided that plants are cultivated within the boundaries of the residential unit.  Of course, a private landlord has discretion to prohibit cultivation completely.  (Bus. & Prof. Code § 11362.45(h).)

What can cities do regarding personal cultivation?

Under the AUMA, local control over private cultivation will be more limited than it is under existing medical marijuana laws.  Cities can completely prohibit private outdoor cultivation, but they cannot prohibit cultivation within a private residence or within a fully enclosed and secured residential accessory structure.  (Health & Safety Code § 11362.2(b)(1).)  Rather, cities can “enact and enforce reasonable regulations that reasonably regulate” personal indoor cultivation.  (Health & Safety Code § 11362.2(b)(1).) 

The AUMA does not define what constitutes a reasonable regulation of personal cultivation.  However, the term “reasonable regulation” would likely include the following: prohibitions on nuisance odors, local permit requirements, and fire and safety inspections.  A city could also require that indoor cultivators obtain the landlord’s consent, if applicable.

Please note that if the federal government legalizes marijuana, the AUMA provision that allows cities to ban private outdoor cultivation will no longer be operative and cities will only be able to reasonably regulate private outdoor cultivation to the extent such cultivation satisfies state law requirements.

What can cities do regarding the use of recreational marijuana?

Very little.  State law defines crimes and penalties regarding personal use of controlled substances, including marijuana, and regulates drug paraphernalia, thus preempting local regulations over these topics.  As the Court of Appeal observed in Kirby v. County of Fresno 242 Cal.App.4th 975, the UCSA “is regarded as so comprehensive, thorough and detailed in defining drug crimes and specifying penalties as to manifest the Legislature’s intent to preclude local regulation of such crimes and penalties.”  (Kirby, supra, 242 Cal.App.4th at p. 957.)  Furthermore, cities cannot prohibit marijuana use or possession in light of Health and Safety Code section 11362.1(a), which states that it is lawful under state and local law for individuals to possess certain amounts of marijuana and marijuana products and to “[s]moke or ingest marijuana or marijuana products.” 

The AUMA imposes certain statewide restrictions on where people can use recreational marijuana.  Under proposed Health and Safety Code section 11326.3(a), individuals may not engage in the following activities:

  • Smoking or ingesting marijuana or marijuana products in any public place;
  • Smoking marijuana anywhere smoking tobacco is prohibited;
  • Smoking marijuana within 1,000 feet of a school, day care center, or youth center, unless in or upon the grounds of a private residence and the smoke is not detectable at the school, day care center, or youth center when children are present.
  • Smoking or ingesting marijuana while operating a motor vehicle, boat, vessel, aircraft or other vehicle used for transportation
  • Smoking or ingesting marijuana while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft or other vehicle used for transportation.

Cities can further restrict recreational marijuana use by enacting or expanding prohibitions on smoking tobacco.  In addition, cities can prohibit marijuana use in buildings that are owned, leased, or occupied by the government.  (Health & Safety Code § 11362.45(g).)

Despite the broad restriction against smoking or ingesting marijuana or marijuana products in any public place in Health and Safety Code section 11362.1(a)(1) and the state’s workplace smoking restrictions, a city could choose to “allow for the smoking, vaporizing, and ingesting of marijuana or marijuana products on the premises of a retailer or microbusiness licensed under” the AUMA, so long as access is restricted to person 21 years of age or older, the marijuana consumption is not visible from any public place or non-age restricted area, and alcohol and tobacco consumption is prohibited on the premises.  (Bus. & Prof. Code § 26200(d).)

What are cities’ regulatory options for commercial marijuana businesses under the AUMA?

Proposed Business and Professions Code section 26200 provides that cities may “completely prohibit the establishment or operation of one or more types of businesses licensed under” the AUMA.  Therefore, as under existing medical marijuana laws, cities will have a wide range of regulatory options under the AUMA to deal with recreational marijuana land uses.  These options include an express ban on all or some of the business permitted under the AUMA or a regulatory scheme for commercial marijuana businesses.

A marijuana regulatory ordinance could include locational restrictions, the requirement of a regulatory permit that is subject to annual renewal, and the imposition of various safety-related operating requirements.  Locational restrictions may include the designation of certain zoning districts as permissible locations, separation requirements to avoid clustering of marijuana land uses, or a limit on the number of local marijuana permits that can be issued.  The AUMA expressly permits cities to establish an allowable ratio of retail, microbusiness, or non-profit licenses to the population in the census tract.  (Bus.  Prof. Code § 26051(c)(2).)

Operating requirements can be extensive and include the following: the use of licensed security guards, designated hours of operation, prohibition against sales of alcohol and/or tobacco and on-site alcohol and/or tobacco consumption, installation of adequate odor control devices and ventilation systems, and limitations on access to minors.

Please keep in mind that local jurisdictions have discretion to adopt standards, requirements, and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections that are more stringent than those established by the state for marijuana businesses.  (Bus.  Prof. Code § 26201.)

Cities that issue permits for marijuana businesses should expect to be inundated with permit inquiries and/or applications.  With the amount of money that is at stake, unsuccessful applicants will likely look for potential ways to attack the city’s selection and evaluation process. Those cities, therefore, should give careful consideration to how they are going to process applications for marijuana businesses.  Local ordinances should provide clear guidelines as to what information is required in the application, what grounds constitute a basis for denial of a permit, the type of permit to be issued (CUP or renewable regulatory permit), and who is responsible for making the decision on issuing the permit.  Some cities vest the decision making authority in the city manager, police chief, or other staff members.  Others leave the ultimate decision to the city council.

For cities that choose to allow recreational marijuana dispensaries, either as retailers, microbusinesses, or nonprofits, are there any state-mandated operational requirements?

Yes. Retailers, microbusinesses, and nonprofits must “implement security measures reasonably designed to prevent unauthorized entrance into areas containing marijuana or marijuana products and theft of marijuana and marijuana products from the premises.”  (Bus. & Prof. Code § 26070(c).)  These security measures must include prohibiting loitering, establishing limited access areas, and storing all finished marijuana and marijuana products in a secured and locked room, safe, or vault, except for limited amounts of marijuana used for display purposes or immediate sale. (Ibid.)

For cities that choose to allow recreational marijuana businesses, how does the 600-foot locational restriction work?

Proposed Business and Professions Code section 26054 provides, “No licensee under this division shall be located within a 600-foot radius of a school providing instruction in kindergarten or any grades 1 through 12, day care center, or youth center that is in existence at the time the licensee is issued, unless a licensing authority or a local jurisdiction specifies a different radius.”  This section mirrors the 600-foot restriction for medical marijuana establishments set forth in Health and Safety Code section 11362.768.  The 600-foot radius is measured by drawing a straight line from the boundary of the property on which the marijuana licensee is located to the boundary of the property on which the school, day care center, or youth center is located.

Can a city choose to remain silent regarding recreational marijuana and rely on permissive zoning principles to prohibit or restrict recreational marijuana land uses?

Relying on permissive zoning principles will be a risky strategy.  Under permissive zoning principles, the omission of any particular land use from local zoning regulations is the equivalent of an express ban unless the planning director or other designated official finds that the proposed use is substantially the same in character and intensity as those land uses listed in the code.  (See City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433-436.)  If the city can make this finding, such a use is subject to the permit process and zoning requirements which govern the land use category in which it falls.

In the past, medical marijuana establishments have argued that they fall within various land use categories and descriptions, such as pharmacies, retail sales, nurseries, and agriculture.  Based on the unique nature of most medical marijuana activities and the potential for negative secondary effects, cities have generally been successful in court in defeating such similar use arguments.  For example, in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, the court held that “medical marijuana dispensaries and pharmacies are not ‘similarly situated’ for public health and safety purposes and therefore need not be treated equally.”  (Id. at p. 871.)  In reaching this conclusion, the court observed that the presence of large amounts of cash and marijuana at medical marijuana dispensaries makes them attractive targets for crime.  (Ibid.)  In County of Tulare v. Nunes (2013) 215 Cal.App.4th 1188, the court concluded that a medical marijuana collective did not qualify as an “agricultural” land use because “marijuana is a controlled substance and is not treated as a mere crop or horticultural product under the law.”  (Id. at p. 1205.)  In City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, the court rejected a similar argument that a medical marijuana dispensary was substantially similar to the listed commercial use classifications for personal services, retail sales, pharmacies and medical supplies.  (Id. at p. 1091.)  The court concluded that a medical marijuana dispensary did not fit within the definition of these land use classifications and observed that the city had consistently interpreted its zoning code as prohibiting medical marijuana dispensaries.  (Ibid.)

These cases have been very helpful for cities dealing with medical marijuana land uses, but they may not be effective with regard to recreational marijuana under the AUMA.  The AUMA states expressly that “marijuana is an agricultural product.”  (Bus. & Prof. Code § 26067(a).)  In addition, the AUMA specifically describes recreational marijuana dispensaries as “retailers.”  (Bus. & Prof. Code § 26070.)  These provisions may undermine cities’ attempts to rely on permissive zoning principles to prohibit or control recreational marijuana.  Cities will need to look very carefully at their zoning codes to evaluate whether regulations of agricultural land uses, nurseries, and retail sales are sufficient to address recreational marijuana uses.  In most situations, such regulations will not be sufficient to address the unique issues raised by marijuana.

Cities, therefore, should be very cautious in relying on permissive zoning to prohibit or control any marijuana land use.  As more people try to enter the lucrative marijuana industry, cities relying on the permissive zoning approach could see repeated requests for similar use determinations.  These case-by-case requests could result in time-consuming administrative hearings and costly and uncertain litigation.  There is potential for marijuana advocates to challenge similar use determinations depending on the wording of individual municipal codes.  For these reasons, cities that want to ban all or some marijuana activities may want to consider adopting express prohibitions.  Furthermore, cities that want to allow recreational marijuana should adopt an express regulatory ordinance.

Does the AUMA allow non-profit marijuana businesses?

Yes.  While the AUMA does not currently set forth a non-profit marijuana licensing category, it directs the Bureau of Marijuana Control to “investigate the feasibility of creating one or more classifications of nonprofit licenses.”  (Bus. & Prof. Code § 26070.5(a).)  The BMC must complete this investigation by January 1, 2018.  (Ibid.)  In the interim period, cities may issue “temporary” local licenses to nonprofit entities that primarily provide “whole-plant marijuana and marijuana products and a diversity of marijuana strains and seed stock to low income persons.”  (Bus. & Prof. Code § 26070.5(b).)  In doing to, the city must do the following:

(1)      Confirm that the temporary license applicant is a registered nonprofit;

(2)      Impose conditions and regulations on the temporary license “to protect public the health and safety” and “require compliance with all environmental requirements” under AUMA;

(3)      Notify the BMC of any temporary local licenses; and

(4)      Certify to the BMC that the nonprofit licensee will not generate annual gross revenues in excess of $2 million.

What can cities do about recreational marijuana distribution and transportation?

Cities cannot prohibit recreational marijuana distribution and transportation on public roads.  (Bus. & Prof. Code § 26080(b).)

What can cities do about recreational marijuana deliveries by marijuana businesses to individual customers?

The best interpretation of the AUMA is that a city could prohibit delivery of marijuana to locations inside the City as an exercise of its constitutional police power and land use authority.  The AUMA states that “[a] local jurisdiction shall not prevent delivery of marijuana or marijuana products on public roads by a licensee acting in compliance with” the AUMA and “local law as adopted under Section 26200.”  (Bus. & Prof. Code § 26090(c).)  This is similar to the restriction in the Medical Marijuana Regulation and Safety Act that prevents cities from prohibiting delivery services from using public streets to pass through the city.        

When should cities adopt ordinances to address recreational marijuana?

A city could reasonably wait until after the election to adopt an ordinance regarding recreational marijuana.  An ordinance passed after the election will be effective and enforceable.  As noted above, the state is not going to issue licenses for recreational marijuana businesses until January 1, 2018.  Cities that wait until after the election to address private cultivation will not be preempted by state law from adopting reasonable regulations regarding private cultivation.  The AUMA expressly recognizes the authority of local governments to adopt reasonable cultivation regulations, which may include a complete ban on private outdoor cultivation.  (Health and Safety Code § 11362.2.)  There is no deadline by which cities must adopt such local regulations. Ordinances regarding recreational marijuana businesses should follow the notice and public hearing requirements set forth in Government Code section 65853.

Can cities adopt interim urgency ordinances to address recreational marijuana businesses and private cultivation?

Yes, a city could enact an interim urgency ordinance under Government Code section 65858 to address both recreational marijuana businesses and private cultivation.  Government Code section 65858 authorizes the adoption of an interim urgency ordinance to protect the public health, safety, and welfare, and to prohibit land uses that may conflict with land use regulations that a city’s legislative bodies are considering, studying, or intending to study within a reasonable time.

 

Reprinted with permission from Burke, Williams & Sorensen, LLP.


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