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California Local Governments File Lawsuit to Reverse Cannabis Delivery Regulations that Undermine Local Control Enacted by Voters Who Passed Proposition 64

25 local governments seek to invalidate a regulation allowing the delivery of commercial cannabis within communities that have regulated or banned deliveries under Proposition 64

April 8, 2019
On behalf of a geographically diverse coalition of local governments, attorneys from Churchwell White LLP filed a lawsuit last week against the California Bureau of Cannabis Control (BCC).
 
The lawsuit seeks to invalidate recent regulations by the BCC that violate the will of voters and the law by purporting to allow delivery of commercial cannabis statewide even in those communities that have regulated or banned commercial cannabis.
 
“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,” says Walter Allen III, council member for the City of Covina. Allen further stated that, “the BCC’s actions in adopting this regulation burden local governments in jurisdictions that have regulated or banned commercial cannabis deliveries.”

The 25 local governments initiating the lawsuit against the BCC are, the: County of Santa Cruz, Cities of Agoura Hills, Angels Camp, Arcadia, Atwater, Beverly Hills, Ceres, Clovis, Covina, Dixon, Downey, McFarland, Newman, Oakdale, Palmdale, Patterson, Riverbank, Riverside, San Pablo, Sonora, Tehachapi, Temecula, Tracy, Turlock, and Vacaville (Plaintiffs).
 
The lawsuit filed in Fresno Superior Court alleges that BCC Regulation 5416(d) is invalid because it eliminates the ability of cities and counties to regulate commercial cannabis deliveries within their communities, a key promise in Proposition 64, which legalized commercial cannabis activities in California. Regulation 5416(d) states that “[a cannabis] delivery employee may deliver to any jurisdiction within the State of California...”
 
“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. This betrays the promise made to the voters in Proposition 64,” says Supervisor Ryan Coonerty, chair of the Board of Supervisors of Santa Cruz County, and former mayor of the City of Santa Cruz.
 
The Plaintiffs assert that the BCC ignored the specific language of Prop. 64, in Business and Professions Code sections 26090 and 26200, guaranteeing cities and counties the right to regulate or prohibit the operation of recreational and commercial cannabis deliveries within their communities. Business and Professions Code section 26200 provides that nothing shall limit the authority of cities and counties to regulate or completely prohibit commercial cannabis activities within their jurisdiction.
 
Mayor Rick Rodriguez of the City of Downey questions the state agency’s decision to enforce Regulation 5416(d). “The BCC is exceeding its authority in adopting a regulation that ignores the right of cities and counties to regulate commercial activity within its borders,” says Rodriguez.
 
“The BCC is creating a new cannabis policy at the voters’ expense, placing the public at risk,” says Robert Thompson, police chief of the City of Dixon.
 
“This lawsuit is not pro- or anti- cannabis. We are left with no choice but to challenge these regulations because they violate key provisions of local control promised to voters when they passed Proposition 64,” said John Mirisch, mayor of Beverly Hills. “By usurping local ordinances, these regulations interfere with local governments’ ability to enact local regulations that may be necessary to protect the public safety and public health.”
 
According to the Plaintiffs, the regulations:
  • Violate the promise made to voters who passed Proposition 64.
    • In the Legislative Analyst Office official summary that appeared in the ballot pamphlet mailed to all California voters, reads: “Under the measure, cities and counties could regulate nonmedical marijuana businesses. For example, cities and counties could require nonmedical marijuana businesses to obtain local licenses and restrict where they could be located. Cities and counties could also completely ban marijuana-related businesses.”
    • In the ballot arguments also sent to all registered voters, Prop. 64 proponents promised voters that Prop “64 preserves local control.”
  • Remove a central pillar of the local enforcement model of Prop. 64, opening up all communities to cannabis deliveries despite any local ordinances — passed by elected city officials or by local voters – that prohibit or limit commercial cannabis activity; and
  • Eliminate any opportunity to implement regulatory local ordinances a community deems necessary to protect public safety and public health. 
“By disregarding local governments’ reasonable regulatory authority on cannabis deliveries, the BCC has imposed a one-size-fits-all approach to cannabis regulation,” said Carolyn Coleman, executive director, League of California Cities. “This regulation does not reflect California’s diverse population and wide spectrum of viewpoints on this topic and undermines the foundational promise of Proposition 64 that each city would be able to allow, regulate or prohibit commercial cannabis activities within their community.”

Read the full complaint online. For more information about the County of Santa Cruz et al. v. Bureau of Cannabis Control et al. litigation, please visit www.simplca.com.
 
About SIMPL
 
The Safe Implementation of Marijuana Policy for Local Government (SIMPL) is a coalition of California city and county jurisdictions that have come together to ensure that Proposition 64, which legalized commercial cannabis activities in California, is implemented in a manner consistent with the way it was considered, voted on and passed by voters.


 
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