False deadline sends cities and counties into banning frenzy
By Katie Podein
For almost 20 years, California cities and counties have called on the state Legislature to develop a regulatory framework for the medical marijuana industry. Finally, on Oct. 9, 2015, Governor Jerry Brown signed into law the Medical Marijuana Regulation and Safety Act (MMRSA), which provides a comprehensive system of control over the entire industry.
The unfortunate irony is that Californians have arguably seen more cities and counties ban medical marijuana with the passage of MMRSA than in the two decades since legalization. So while creating state-level regulation of medical marijuana may have been an important step forward, the frenzied pace at which local municipalities have passed ordinances to prohibit it is taking two steps back for cannabis legalization and normalization.
This article addresses the “drafting error” of MMRSA that caused the knee-jerk reaction by local officials and what the cannabis industry can do to mitigate the damage.
Deadline labeled a ‘drafting error’
The multitude of bans are mainly due to the March 1, 2016 deadline that local municipalities were initially given to enact their own rules governing medical marijuana cultivation. After that date, regulations would have been in the sole purview of the state.
Specifically, Assembly Bill 243 stated: “If a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana … then commencing March 1, 2016, the (Department of Food and Agriculture) shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county.”
The short deadline, coupled with the fear of losing the power to control cannabis in their jurisdictions, led cities and counties to take action in the fastest way possible — by banning all medical marijuana cultivation. Tim Cromartie, a legislative representative for the League of California Cities, told the Los Angeles Times, “In an abundance of caution, we have been advising our member cities to enact cultivation ordinances — in this case, a ban — to make sure they preserve their regulatory authority whether the cleanup bill goes through or not. A ban is the quickest and cleanest way.”
The adjectives “smartest” or “soundest” were not used. Taking the overly cautious approach to the League of California Cities’ advice, many municipalities also banned other cannabis activities, such as manufacturing and delivery, to ensure that the state would not become the sole authority over those areas as well.
The Legislative Fix
At the height of “Banapalooza,” as the California chapter of NORML has labeled it, assembly member Jim Wood, one author of MMRSA, drafted an open letter to city and county officials explaining that the wording and its deadline were a “drafting error.” Whether the actual language was the error or the effect of the language was the error, the California State Assembly acted quickly to fix the problem. On Jan. 29, Governor Brown signed AB 21 into law as an urgency measure, removing the March 1 deadline for cities and counties to pass cultivation ordinances. The bill also eliminates the clause that explicitly authorized local governments to prohibit patients and caregivers from cultivation, storage, manufacturing, transport and other medical marijuana activity.
Ideally, AB 21 will prompt cities and counties to carefully study this subject and draft regulations that best reflect the needs and wants of their residents and the community at large. Additionally, it will hopefully encourage the cities and counties that have recently banned cultivation and other medical marijuana activities to overturn these laws and pass more well-crafted regulations.
Unfortunately, by the time AB 21 went into effect, approximately 160 cities and counties had either enacted a ban or introduced a ban, amounting to nearly a third of the entire state prohibiting medical marijuana cultivation. The chance of cities and counties reversing their bans and replacing them with a regulatory framework in the immediate future is unlikely. Instead, most are taking the wait-and-see approach — waiting for state licensing to begin to see how other cities and counties handle regulation as the industry grows.
What Californians Can Do
California’s cannabis industry will likely take a noticeable hit in the upcoming months if local municipalities remain unwilling to allow medical marijuana in their communities. Not only do cannabis business owners need a location that hasn’t banned marijuana operations, but they also have to locate an appropriately zoned property and a landlord that will rent to them.
Moving forward, the cannabis industry must mitigate the fears of local officials and demonstrate that regulation of this powerful industry is feasible. This is critical to the success of the industry.
The top priority is to take action against the bans. Below are just a few steps you can take to help prevent medical marijuana from being banned further in California (or in any other state that is facing a similar threat):
– Check city and county websites for upcoming meeting agendas. Invite friends and family to the meeting and speak during the public comment portion. Your word will have an impact on local officials.
– If cities or counties are facing a ban, email local elected officials to let them know you oppose the ban and why. Request the letter be entered into the record at the next public meeting that discusses the ban.
– Contact local newspapers to inquire about writing letters to the editor or guest columns discussing the ban.
– Tell local officials you are willing to serve on or create a committee to study the issue and help develop regulations that will protect all interests at stake.
– Request officials to survey local residents for their opinions of medical marijuana before implementing regulations.
– If your city or county has banned cultivation and/or other medical marijuana activities based on the March 1 deadline, request that local officials reconsider the ban in light of AB 21. Cities are now allowed ample time to thoroughly research and study this issue before developing regulations.
– Keep in mind if the city or county has banned medical marijuana based on their police powers, the ban must be reasonably supported by the findings. Review the studies and data. Respectfully question local officials at the next meeting if the findings are lacking.
Katie Podein is an attorney with California Cannabis Law Group (www.califcannlaw.com). She assists clients in navigating California’s rapidly evolving cannabis market.