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Can a City or County Make It a Crime to Cultivate or Use Medical Marijuana?

ThinkstockPhotos-183575355Since the legalization of medical marijuana in California 20 years ago, some cities and counties have found ways to keep it out. Are their land use powers still powerful enough to do it?

Like many counties and cities in California, Fresno County exercised its land use power in 2014 to ban the dispensing, cultivation, and storage of medical marijuana in all its zoning districts and to classify any violation of this ban as a public nuisance. This ordinance was specifically in line with California Supreme Court precedent, which had concluded the year before that state medical marijuana laws don’t preempt local ordinances declaring that all dispensaries of medical marijuana are public nuisances per se. See City of Riverside v Inland Empire Patients Health & Wellness Ctr. (2013) 56 C4th 729, 738.

But Fresno County went further: It also attempted to recriminalize the dispensing, cultivation, and storage of medical marijuana, despite California state law clearly allowing persons using medical marijuana an affirmative defense against criminal prosecution in state court. See Health & S C §11362.5.

Naturally, Fresno’s bold move raised eyebrows, and a medical marijuana patient challenged the entire ordinance. In Kirby v County of Fresno (2015) 242 CA4th 940, a court of appeal in the Fifth Appellate District issued a Solomon-type decision on the challenge, which had been dismissed by the trial court on a demurrer. The court, following supreme court precedent, concluded that the ban on dispensing and cultivation adopted under Fresno’s authority to regulate land use didn’t conflict with California’s Compassionate Use Act (CUA) or its Medical Marijuana Program (MMP). But it also found that the ordinance provision classifying the cultivation of medical marijuana as a misdemeanor was preempted by California’s extensive statutory scheme addressing crimes, defenses, and immunities relating to marijuana, and so it allowed the challenge to proceed on that narrow ground.

None of this was particularly surprising to attorneys tracking medical marijuana cases in California. One question is whether the much-heralded amendments to medical marijuana laws at the state level, passed last summer by the California legislature and signed by the governor, will change the land use powers of local governments on their ability to ban medical marijuana activity. The answer is clearly “No,” because as part of the new law, the Medical Marijuana Regulation and Safety Act (MMRSA) (Bus & P C §19315(a)) effectively codified the decision in City of Riverside by expressly stating that the MMRSA doesn’t “supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.”

Keep up with this complex and changing area of law by visiting CEB’s research hub for marijuana law, which provides attorneys nationwide with ethical and substantive education to assist them in giving the highest form of professional representation to clients navigating the cannabis industry. Also check out CEB’s CLE program Current Issues in Medical Marijuana Regulation, available On Demand.

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