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Medical Marijuana Clean-up Legislation Moves Forward

January 5, 2016
Assembly Member Jim Wood (D- Healdsburg) on Monday, Jan. 4, amended AB 21 to address a provision in his AB 243, one of the three bills Gov. Jerry Brown signed in 2015, that comprise the Medical Marijuana Regulation and Safety Act.
The provision in question, if allowed to remain unchanged, will prevent local governments from enacting ordinances or other regulations regarding medical marijuana cultivation. Without this critical clean-up bill, the provision will pre-empt local governments from enacting any kind of local cultivation regulation if they do not have one in effect as of March 1, 2016.

This effort reflects a commitment that Assembly Member Wood, one of the Assembly’s leaders on the issue, made in a Sept. 11, 2015 letter to delete this provision from law. He issued the letter after being alerted to the harm that the pre-emption provision would cause local governments, many of whom may be working to craft regulatory ordinances but need more time than that allotted by the March 1 deadline. Other cities are in the process of researching the issue to determine whether there is sufficient support locally for either some form of local regulation of medical marijuana, or an outright ban on cultivation and sales. Yet another group of cities have expedited the enactment of bans in recent weeks.
The League of California Cities® strongly supports AB 21 and the bill will be on the League’s 2016 Hot Bill list. The local pre-emption provision must be eliminated from statute, as it directly contradicts local control. It also conflicts with a critical component of AB 266 (the key measure among the trio of last year’s bills enacting medical marijuana regulation), that of dual licensing. Dual licensing requires both state and local governments to authorize medical marijuana business operations in any specific jurisdiction, and is modeled after the regulatory structure in Colorado.
The League intends to spare no effort to get AB 21 to the Governor’s desk; however, the bill’s outcome is not certain. It would be prudent for local governments that have not already done so to take steps to protect themselves from state pre-emption in the area of medical marijuana cultivation.
In a series of webinars and local informational briefings for city and local law enforcement officials, the League has advised its members that the best way of preserving their local regulatory authority in the area of medical marijuana cultivation is to enact a cultivation ban that is in effect as of March 1, even if only as a placeholder ordinance, and even if it must be done on an urgency basis. This will ensure that after March 1, locals will be free to revisit the issue at their leisure, and craft a different type of regulation if there is local will to do so. 
Bans are advised for two additional reasons:
  1. A local moratorium may not be sufficient to be considered a bona fide local regulation for purposes of avoiding state pre-emption; and
  2. Developing local regulations that have been vetted both by city attorneys and local residents, with an opportunity for input from both groups, may be a time-consuming process that goes well past the March 1 deadline. 
Additional information about the Medical Marijuana Regulation and Safety Act is available on the League’s website at www.cacities.org/medicalmarijuana.

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