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The Green Rush: Can City Regulations Keep Up?

MedicalMarijuanaMedallionThe Los Angeles Times calls it “The Green Rush,” referring to the newly-lucrative cultivation of premium marijuana to serve the “discriminating consumers who frequent medical cannabis dispensaries.”  California laws permitting medical marijuana have spawned an industry that has moved from remote, clandestine locations to our city centers. But what’s become a boom for growers and sellers is causing a headache for many city regulators.

Here are the three basic laws that govern the use, cultivation, transportation, and sale of marijuana in California:

  • the Compassionate Use Act of 1996 (CUA) (Health & S C §11362.5), which was approved by California voters as Proposition 215 in 1996,
  • the Medical Marijuana Program Act (MMPA or SB 420) (Health & S C §§11362.7-11362.83), which was adopted by the legislature in 2003, and
  • the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (Title II of which is the Controlled Substances Act (CSA) (21 USC §§801-904)).

The CUA makes certain state law criminal provisions on the possession and cultivation of marijuana inapplicable “to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Health & S C §11362.5(d). The CUA didn’t change the other state statutory criminal prohibitions related to marijuana, including those that bar transportation, possession for sale, and sale. People v Urziceanu (2005) 132 CA4th 747, 773, 33 CR3d 859.

The MMPA established a program to facilitate the identification of qualified patients and their designated primary caregivers via a voluntary identification card program, which counties must implement. Health & S C §§11362.71(b), 11362.72. It also provides that qualified patients and persons with valid identification cards, and their designated primary caregivers who associate “collectively or cooperatively” to cultivate marijuana for medical purposes, won’t be subject to state law criminal sanctions, including for sale of marijuana, on that basis. Health & S C §11362.775.

Under the MMPA, a “storefront” dispensary that is “truly operating as a cooperative or collective,” may be permissible. People v Hochanadel (2009) 176 CA4th 997, 1018, 98 CR3d 347. But just because it’s permissible under the MMPA doesn’t mean cities have to allow dispensaries.

Dispensaries still have to comply with local zoning regulations, which aren’t preempted by either the CUA or the MMPA. City of Claremont v Kruse (2009) 177 CA4th 1153, 1175, 100 CR3d 1. Because most zoning ordinances prohibit uses that aren’t explicitly permitted, when a city’s zoning ordinance doesn’t explicitly permit marijuana dispensaries, the city properly may enjoin such dispensaries. City of Claremont v Kruse (2009) 177 CA4th 1153, 100 CR3d 1.

The bottom line is that California law doesn’t “legalize” marijuana; rather, the laws provide only limited defenses to certain categories of individuals with respect to certain state criminal offenses and they don’t preempt or limit local regulation of medical marijuana uses through land use authority.

And there’s always the federal law wrinkle: the federal Controlled Substances Act doesn’t find any accepted medical use of marijuana and says it’s illegal to operate a storefront marijuana dispensary. U.S. v Oakland Cannabis Buyers’ Coop. (2001) 532 US 483, 491, 149 L Ed 2d 722, 732, 121 S Ct 1711.

Whether and to what extent the California medical marijuana laws affect local land use authority is clearly a developing area.  CEB provided expert views on this hot topic in its program Current Issues in Medical Marijuana Regulation, which will be available On Demand soon.

Regulation of medical marijuana is also discussed in various CEB books, including The California Municipal Law Handbook §§9.47-9.52 and California Land Use Practice §12.62.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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