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The Marijuana Laws Are A-Changin’ In California

The Marijuana Laws Are A-Changin’

Back in 1964 when Bob Dylan sang “The Times They Are A-Changin’,” marijuana was called the “killer weed” and even simple possession was a felony in California carrying a sentence of one to ten years. Now over 60 years later, the citizens of California will decide whether to legalize the recreational use of marijuana. The wheels of change grind slowly.

California was the first state to enact laws allowing the regulated sale, cultivation, and use of medical marijuana. Since then, other states have pushed forward and made the recreational use of marijuana legal. Recreational use is now legal in Oregon, Washington, Colorado, and Alaska, as well as the District of Columbia. California has its own ballot initiative, which will be before the voters in the 2016 elections. If the initiative passes, the recreational use of marijuana will become legal.

As of now, however, only qualified medical marijuana sale, cultivation, and use is permitted under California law. On October 9, 2015, in what is the most far-reaching imposition of regulations affecting the 20-year old California medical marijuana laws, known as the Compassionate Use Act of 1996 (CUA), Governor Jerry Brown signed a bill, the Medical Marijuana Regulation and Safety Act (MMRSA). Among other new regulations, MMRSA clarifies how medical marijuana can be sold and sets up a licensing scheme for medical marijuana dispensaries. Included in the bill is a provision that gives local municipalities until March 1, 2016 to enact local regulations that would govern the sale of medical marijuana in local jurisdictions or yield to the state laws. As a result, many municipalities have been scrambling to enact their own more restrictive local laws governing the sale of medical marijuana.

In a recent decision by the Fifth District Appellate Court (Kirby v. County of Fresno (Cal. Ct. App. – Dec. 1, 2015) a local Fresno regulation that restricted the personal cultivation of medical marijuana was found to be in conflict with the California Supreme Court’s holding that provisions of the CUA impose an obligation on local law enforcement agencies and officials. The City of Fresno enacted an ordinance in 2014 that prohibited all medical marijuana activity, including cultivation, as a nuisance or misdemeanor. Diana Kirby, who lives in Fresno, and was qualified as a medical marijuana patient, was cited by the city of Fresno for cultivating medical marijuana for her own use.

The Fifth District Appellate Court held that municipalities cannot criminalize possession and cultivation of medical marijuana in direct contravention to the Compassionate Use Act, which specifically provides that a qualified medical marijuana patient cannot be arrested for possession or cultivation of medical marijuana as long as the amount of marijuana is within the amounts allowed by the law. (Health and Safety Code §11362.72(e).)

Returning to the MMRSA, among its provisions are regulations regarding the cultivation of medical marijuana. Since the California Supreme Court held that cultivating medicinal marijuana in California in the amounts allowed by law is not a criminal act, any new regulations enacted by municipalities in advance of the March 1, 2016 deadline that makes illegal all cultivation of medical marijuana would be subject to challenge under this holding. However, the decision did not foreclose the possibility of enacting fines under zoning laws, which is certainly one way municipalities could effectively make it impossible to cultivate or use medical marijuana in that municipality.

The upshot is that as municipalities write regulations in advance of the March 1, 2016 in an effort to, in effect, ban medical marijuana use, cultivation, or sale, the regulations cannot make such acts a crime. However, It all may be for naught as the legislator that wrote the MMRSA bill is introducing emergency legislation to remove the March 1st deadline from the bill. Governor Brown has indicated that he will sign the emergency legislation. And it is possible that recreational use will become legal in California after the 2016 vote. However, even if voters approve the 2016 initiative to make recreational use legal, municipalities will still have the power to regulate or even totally prohibit outdoor marijuana cultivation (but not indoor cultivation), processing, sales and deliveries (unless the delivery is just passing through the jurisdiction) as these exceptions are written into the proposition.