State says marijuana can be delivered anywhere; cities want authority to block them.
One county and 24 cities are suing the California Bureau of Cannabis Control over a rule that permits marijuana deliveries throughout the state, even if local governments have banned the industry.
The lawsuit, filed late Thursday, April 4 in Fresno Superior Court, aims to overturn the state regulation so that cities and counties can block or restrict marijuana deliveries in their borders.
“Californians voted to allow recreational and commercial cannabis with the specific promise that each community would be able to regulate or even ban it within their community,” said Walter Allen, council member for the city of Covina, which is involved in the suit. “The BCC’s actions in adopting this regulation burden local governments in jurisdictions that have regulated or banned commercial cannabis deliveries.”
Other Southern California cities involved in the lawsuit include Riverside, Arcadia, Temecula, Downey, Beverly Hills, Agoura Hills and Palmdale. Santa Cruz County is also suing the bureau, along with the cities of Angels Camp, Atwater, Ceres, Clovis, Dixon, McFarland, Newman, Oakdale, Patterson, Riverbank, San Pablo, Sonora, Tehachapi, Tracy, Turlock and Vacaville.
The Bureau of Cannabis Control declined to comment on the lawsuit Friday, according to agency spokesman Alex Traverso.
No one disputes that state law says cities and counties can block all marijuana businesses from being based in their boundaries. What’s at issue is the interpretation of a BCC regulation formally adopted in January that spells out where delivery services can drop off their goods.
Until January, the state’s cannabis industry was operating under emergency regulations that simply said cities couldn’t stop marijuana delivery services from using public roads. That was interpreted by some city attorneys to mean that even though municipalities couldn’t prevent licensed deliveries from passing through their jurisdictions, they could ban them from actually making stops in their towns. A number of California communities passed or renewed bans on delivery services based on that interpretation.
But a permanent regulation — released by the bureau in June and enacted in January — clarified the law this way: “A delivery employee may deliver to any jurisdiction within the State of California.” The agency said at the time that it always intended for the regulation to allow for deliveries throughout the state.
That rule was one way to help all serious medical marijuana patients access products. It was also a way to compensate for the fact that just 14 percent of California cities and counties actually permit recreational cannabis stores in their borders, according to a Southern California News Group database of local policies. That means some residents live 100 miles or more from the closest licensed marijuana shop.
Some cities, counties, law enforcement officials and the League of California Cities immediately began voicing concerns over the BCC’s delivery regulation. They argued that it took away their right, guaranteed by voter-approved Proposition 64, to govern how the cannabis industry operates within their borders.
“The BCC is fundamentally changing Proposition 64, eroding local control and harming our local cannabis businesses by allowing commercial cannabis deliveries in every jurisdiction in California,” said Ryan Coonerty, chair of the Board of Supervisors of Santa Cruz County. “This betrays the promise made to the voters in Proposition 64.”
Beverly Hills Mayor John Mirisch insists the lawsuit isn’t pro- or anti-cannabis, but is about maintaining local control. City officials have mentioned wanting to be able to regulate deliveries from outside businesses, and they’ve cited concerns about not being able to confirm who is a legitimate delivery driver or a potential increase in robberies of delivery vehicles.
Defenders of the state’s current policy note the BCC already has strict rules that govern all marijuana delivery services. They can only use unmarked vehicles carrying less than $5,000 worth of product at a time, for example, to ward off thefts. Drivers have to carry a copy of their employer’s current license so they can be identified as legal services. They can only deliver marijuana to a physical address on private property, and not to any schools, day care centers or other youth facilities. They also must have GPS systems that let officials track and record their operations.
Traditionally, local governments only have regulatory power over land use issues and public nuisances, pointed out Dale Gieringer, director of the California chapter of the advocacy group NORML.
“To invalidate home delivery of any legal product whatsoever is really well beyond the line,” he said. “I think they are stretching local authority to an outrageous and unprecedented extent.”
Attempts to block medical marijuana deliveries are particularly concerning, Gieringer said, since many patients have mobility issues and live far from licensed dispensaries.
“It’s absolutely outrageous for local governments to say they cannot have their medicine delivered to them,” he said.
The 246-page lawsuit is poised to be the second legal test of how far cities can go in regulating marijuana rights under Prop. 64.
A Fontana resident sued his city in 2017 over a strict policy for people who wanted to grow cannabis at home for personal use, as allowed under Prop. 64. The city ordinance required residents to pay a $411 and agree to home inspections, background checks and more.
In November, a San Bernardino Superior Court judge ruled Fontana had gone too far. He struck down the $411 fee and ordered the city to revise the policy so it didn’t include such restrictive mandates.
Fontana complied in February, dropping the fee for growing marijuana at home to $25.