Governor Signs Bill Giving Local Entities More Time to Either Outright Ban or Regulate Medical Marijuana in their Jurisdictions

After the Compassionate Use Act (CUA) became law by California voter initiative in 1996, the Medical Marijuana Program Act (MMPA) was enacted by the legislature to clarify the scope of the CUA and regulate the cultivation and distribution of medical marijuana. In a 2015 amendment to the MMPA, the law now particularly requires the licensing and regulation by both state and local entities of medical marijuana cultivation. It requires cultivators to obtain both a state license from the Department of Food and Agriculture and a license, permit, or other entitlement allowing cultivation from the local public entity (i.e., city, county, or city and county) where the cultivation will occur.

The 2015 amendment had also provided that if a local entity had not yet adopted land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, commencing March 1, 2016, the California Department of Food and Agriculture would be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county. But this provision was deleted just this week when Governor Brown signed urgency legislation, chaptered on February 3, 2016, and effective immediately. See Assembly Bill 21, Stats 2016, ch 1. 

This means that local entities now have more time to figure out their licensing requirements and procedures if they are open to the cultivation and distribution of medical marijuana in their jurisdictions.  However, there is a catch; if they desire instead to ban medical marijuana entirely, they now have more time to do that too.

The same bill (AB 21) actually strengthened local entity power to ban medical marijuana by adding a provision giving direct constitutional support to such a ban. More specifically, qualified patients and primary caregivers cultivating marijuana are exempt from state and local licensing requirements if specified conditions are met. But AB 21 revised this exemption provision, and it now also provides that such an exemption from licensing requirements “does not limit or prevent a city, county, or city and county from exercising its police authority” under Article XI of the California Constitution. This is a form of reverse preemption, and it will undoubtedly engender more litigation.

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