Last week, Best Best & Krieger presented the first in a series of webinars on Proposition 64 and marijuana legalization in California. Such an interesting topic yielded many questions — some of which we have selected to answer below, including those not addressed due to time.
The series will continue on Dec.14 with a webinar on labor and employment issues related to marijuana legalization.
Q: If an existing ordinance bans outdoor cultivation entirely, must the city alter its regulatory scheme to allow for the growth of up to six plants?
A: No. The Adult Use of Marijuana Act allows cities to “completely prohibit” cultivation of marijuana outdoors pursuant to Health and Safety Code section 11362.2(b)(3). As a result, a city may choose to ban outdoor cultivation entirely, and any existing ordinance with a full outdoor cultivation ban can retain that aspect of its regulations. It should be noted that, if an existing ordinance pertains only to medical marijuana, it may need to be expanded to deal with recreational marijuana cultivation as well.
Alternatively, a city can, of course, choose to allow outdoor cultivation, and to regulate it as it sees fit given the risks posed. Because cities are entitled to ban outdoor cultivation entirely, there are no explicit limits to what regulations of outdoor cultivation might look like. Regulators should simply keep in mind that they cannot ban cultivation of up to six plants inside a private residence, or inside an accessory structure to a private residence. Instead, cities can only adopt “reasonable regulations to reasonably regulate” indoor cultivation pursuant to section 11362.2(a)(3).
Q: Does the new law require 1,000-foot separation from parks/schools or does that exist today?
A: Yes, the new law requires separation. AUMA creates a separation requirement in Health and Safety Code section 11362.3(a)(3), which indicates that nothing in AUMA permits any person to smoke marijuana or marijuana products within 1,000 feet of a school, day care center or youth center while children are present, except upon the grounds of a private residence or in accordance with Business and Professions Code section 26200 (which allows local governments to pass ordinances regulating marijuana uses), and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.
Smoking of marijuana can still occur on the grounds of a private residence within 1,000 feet of a school, day care center or youth center if it cannot be detected from those locations. Additionally, local enabling legislation could allow for marijuana use in public spaces or on private residences within a closer distance to these locations if the local government so desired. A local government can allow marijuana smoking in public, on-site consumption of marijuana at retailers or dispensaries, or can otherwise regulate public consumption as it sees fit, but absent an ordinance explicitly doing so, AUMA does not allow marijuana to be ingested in any “public place.”
Q: Is the personal indoor cultivation of up to six plants per person (who is 21 or older) or is it six plants period?
A: AUMA only requires that local governments allow the indoor cultivation of up to six plants period. Health and Safety Code section 11362.2(a)(3) provides “not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time.” Regardless of how many adults may be present in a private residence, California law does not allow the cultivation of more than six plants in any private residence at any time.
Q: Is an ordinance banning marijuana adopted in March 2016 sufficient to keep a ban in place post-Prop. 64?
A: It depends. A broad ordinance passed under Medical Marijuana Regulation and Safety Act would likely be sufficient to keep a ban in place, so long as it referred to marijuana generally, or both medical and recreational marijuana. An ordinance governing strictly medical marijuana would not be sufficient to keep a full ban in place post-Prop. 64. Additionally, any ban adopted under MMRSA should be evaluated to determine the cultivation provisions are in line with AUMA. Under MMRSA, all cultivation could be banned outright, but AUMA requires local governments to allow indoor cultivation of up to six plants in a private residence or accessory structure. If a previous ban prohibited all cultivation, it would need to be altered. Any ordinance passed with MMRSA in mind, or passed far in advance of AUMA, should be evaluated to determine whether it remains consistent with both state law and the best interests of the local jurisdiction.
Q: Can development agreements be entered into between cities and cultivators to establish fees to address any impacts resulting from additional policing and water impacts?
A: Yes. In addition to local taxes and potential grants from the state level to those jurisdictions allowing recreational marijuana uses, cities can enter into development agreements with specific marijuana business owners to further secure potential revenue necessary to offset new costs to the city as a result of allowing these uses.
Q: What are the upcoming webinar topics?
A: BB&K is planning to do at least four more webinars on marijuana legalization over the next few months, and more may be announced at later dates. Upcoming webinar topics may include:
If you would like to see a webinar detailing a topic not listed above, please reach out with ideas, and further webinars may be added based on interest.
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