Local Restrictions on Personal Marijuana Cultivation Under the Control, Regulate and Tax Adult Use of Marijuana Act

will california cities be free to ban personal marijuana cultivation after (or if) the control, regulate and tax adult use of marijuana act is approved by voters in 2016?

Marijuana legalization in California appears to be on the horizon.  The Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) is gaining support across California.  The most recent version of the AUMA is available here.  Lieutenant Governor Gavin Newsom recently endorsed the AUMA, along with the Coalition for Cannabis Policy Reform, the California Cannabis Industry Association, Students for Sensible Drug Policy, and Law Enforcement Against Prohibition.  While many legalization initiatives have been introduced for inclusion on the November 2016 ballot, the AUMA appears to be the most viable of such initiatives. 

However, supporters of the AUMA in cities like Temecula and Murrieta fear that it leaves too much control to local governments, which may result in the enactment of city or county wide ordinances that will pull the teeth right out of the initiative.  Their criticisms aren't without historical justification.  

Following the passage of SB 420 in 2003 (The Medical Marijuana Program Act (MMP)), which enumerated defenses for qualified patients and primary caregivers engaging in collective or cooperative marijuana cultivation, conservative cities and counties throughout California began enacting local ordinances banning collectives, cooperatives, and dispensaries from operating in their city or county limits.  In fact, Riverside County as a whole enacted such a ban, as well as the cities of Temecula and Murrieta.  The California Supreme Court upheld these local bans in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., wherein the Court held that Prop 215 (Compassionate Use Act (CUA)) and the MMP do not preempt local ordinances banning medical marijuana dispensary facilities.  (City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729.)

Will the AUMA befall a similar fate?  Following its passage, will cities like Temecula and Murrieta be free to ban personal cultivation within their city limits?  Let's take an admittedly premature look.

Personal Marijuana Cultivation Under the AUMA

Introduction to the AUMA's Personal Cultivation Statutes

The AUMA will add section 11362.1 to the Health & Safety Code.  It provides that:

(a) Subject to Sections 11362.2. [Personal Cultivation Restrictions], 11362.3. [Personal Use Restrictions], and 11362.4. [Punishment for Violations], but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants . . . 

The AUMA will add section 11362.2 to the Health & Safety Code, which places restrictions on personal cultivation.  It provides:

(a) Personal cultivation of marijuana under paragraph (3) of subdivision (a) of Section 11362.1. [Personal Possession & Cultivation] is subject to the following restrictions:
(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b) of this section. 
(2) The living plants and any marijuana produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.
(3) 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. 
(b) 
(1) A city, county, or city and county may enact and enforce reasonable regulations to reasonably regulate the actions and conduct in paragraph (3) of subdivision (a) of Section 11362.1. [Personal Possession & Cultivation]. 
(2) Notwithstanding paragraph (1) no city, county, or city and county may completely prohibit persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1 [Personal Possession & Cultivation] inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure. 
(3) Notwithstanding paragraph (3) of subdivision (a) of Section 11362.1. [Personal Possession & Cultivation], a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under paragraph (3) of subdivision (a) of Section 11362.1. [Personal Possession & Cultivation] outdoors upon the grounds of a private residence.

Under the AUMA, Californians will be able to lawfully grow up to six indoor or outdoor marijuana plants.  Regardless, municipal governments are left free to enact local ordinances reasonably regulating personal marijuana grows.  However, while municipalities can completely prohibit outdoor grows, they cannot completely prohibit personal indoor marijuana grows. 

Despite the AUMA's rather strong language providing that no city, county or city and county can completely prohibit personal indoor marijuana grows, the AUMA specifically delegates authority to municipalities to create reasonable regulations regarding personal marijuana cultivation, including indoor personal marijuana cultivation.  If municipalities cannot completely prohibit indoor marijuana grows, but may enact and enforce reasonable regulations on such grows, what will these regulations look like?  Will they amount to functional bans on personal indoor marijuana grows as critics fear?  

Imagine a scenario where a city or county enacts a licensing or permitting scheme that amounts to a functional ban on personal marijuana cultivation.  For example, following the passage of the AUMA, Temecula enacts a local ordinance providing that personal indoor marijuana cultivation may only be conducted after obtaining a permit.  If Temecula only issues 5 permits for personal indoor marijuana cultivation in the city each year, will such an ordinance qualify as a reasonable regulation that doesn't completely prohibit personal indoor marijuana cultivation?  

Let's look at the case law regarding similar local prohibitions.  

Case Law Regarding Local Marijuana Ordinances and Preemption

City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. is instructive.  At issue was a City of Riverside zoning ordinance that provides "a medical marijuana dispensary . . ., a facility where marijuana is made available for medical purposes in accordance with the CUA . . ,. is a prohibited use of land within the city and may be abated as a public nuisance." (City of Riverside, supra, at p. 738.)  The defendants operated such a dispensary within Riverside's city limits. (Id. at 740.)  Riverside brought a nuisance action against defendants invoking the ordinance. (Id. at 740-1.) The defendants argued Riverside's ordinance is invalid because the local ban is in conflict with, and thus preempted by, the CUA and MMP.  (Id. at 738.)

The Court disagreed with the defendants.  The Court narrowly interpreted the CUA and MMP, and described them as "modest."  (City of Riverside, supra, at p. 744.)  In construing the CUA and MMP, the Court determined that the statutes merely exempt specific groups (qualified patients/primary caregivers) and specific conduct (cultivation, distribution, transportation of medical marijuana) from criminal liability.  (Id. at 753.)  It found that the CUA and MMP do not guarantee the "availability of locations where such activities may occur, [restrict] the broad authority traditionally possessed by local jurisdictions to regulate zoning and land use planning within their borders, or require local zoning and licensing laws to accommodate the cooperative or collective cultivation and distribution of medical marijuana."  (Id. at 753-4.)  As such, the Court held that the Riverside ordinance is not preempted by the CUA or MMP.  (Ibid.)

The Court went on to discuss duplicative preemption, "inimical" or contradictory preemption, and field preemption.  (City of Riverside, supra, at p. 754.)  The Court found that the local ordinance and statutes were not duplicative, but coextensive, where the statutes decriminalized specific activities and the ordinance specified that use of local property for those specified purposes was a local nuisance.  (Ibid.)  The Court then discussed "inimical" or contradictory preemption.  A local ordinance is "inimical" or contradictory to state statute when it requires what the statute forbids or prohibits what the statute demands.  The Court found that it was reasonably possible to comply with the CUA, MMP, and local ordinance by simply refraining from engaging in medical marijuana activities in Riverside altogether.  (Id. at p. 755.)  As to field preemption, the Court held that the CUA and MMP do not create a "comprehensive scheme or system directed at authorizing, controlling, or regulating the processing and distribution of marijuana for medical purposes, such that no room remains for local control."  (Ibid.)  

Relying on Great Western Shows, the Defendants urged the Court that "local governments, even if granted regulatory authority, may not wholly exclude activities that are sanctioned or encouraged by state law."  (City of Riverside, supra, at p. 760; citing Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853.)  However, the Court distinguished Great Western Shows, stating that the MMP, in contrast to the statutes at issue in Great Western Shows, do not create a "comprehensive scheme for the protection or promotion of facilities that dispense medical marijuana."  (City of Riverside, supra, at p. 760.)  The "sole effect of the [CUA and MMP's] substantive terms is to exempt specified medical marijuana activities from enumerated state criminal and nuisance statutes." (Ibid.) Those provisions do not "mandate that local jurisdictions permit such activities."  (Ibid; citing Great Western Shows, supra, at p. 868, and Nordyke v. King (2002) 27 Cal.4th. 875.)  

Will Local Ordinances Restricting Personal Marijuana Cultivation be Preempted by the AUMA?

Perhaps it is a bit too early to be addressing this issue, as the AUMA has yet to qualify for the ballot, much less be approved by California voters.  However, if the initiative is approved, which current polls suggest it will be, in a form closely resembling its current language, the issue of preemption will be a much closer call for any court that's called upon to address it.  

What's clear from the current language of the AUMA is that cities will be free to enact local ordinances banning personal outdoor marijuana cultivation sites.  There will not be any preemption issue with respect to outdoor personal cultivation because any such local ban would be coextensive and not in conflict with the AUMA.  

However, personal indoor marijuana cultivation sites is where the issue gets murkier.  Under the AUMA, cities and counties cannot enact local ordinances which completely prohibit personal indoor marijuana cultivation so long as the cultivation is performed as outlined in the AUMA (unless, perhaps, the city ordinance cites federal law, but that's for another blog post.)  But, what if a city enacts a local ordinance that amounts to a functional ban on personal indoor marijuana cultivation?

Again, let's use the hypothetical example cited above.  Following approval of the AUMA, let's say Temecula enacts a local ordinance providing that personal indoor marijuana cultivation is only allowed by permit.  The ordinance provides that Temecula will only issue five permits per year.  If an individual is unable to obtain one of the five permits, yet sets up a personal indoor cultivation site which is compliant with the AUMA, could Temecula sue to abate that individual's cultivation site as a nuisance?  If the defendant argued Temecula's local ordinance on personal indoor marijuana cultivation was preempted by the AUMA, what is the result?  

Below are a few factors that could swing the preemption issue in favor of the marijuana grower and away from cities.  The AUMA will make it much harder for cities throughout California to enact regulations that will functionally ban personal indoor marijuana cultivation.  Any such local ordinances will fall under much greater scrutiny than the ordinance at issue in City of Riverside.  

  1. In contrast to the "modest" language of the CUA and MMPthe AUMA explicitly allows individuals to lawfully grow six indoor marijuana plants; 
  2. The AUMA limits the broad authority traditionally held by local municipalities by providing that a municipality may not completely prohibit personal indoor marijuana cultivation, and that all regulations must be reasonable, whereas the MMP and CUA contained no such language;
  3. The Court in City of Riverside stated that conflict preemption exists where local law prohibits what a state statute demands, or where local law demands what state law prohibits.  However, conflict preemption also exists where "[l]ocal law prohibits activity that state law intends to promote . . ., even though it is possible for a private party to comply with both state and local law by refraining from the activity.  (City of Riverside, supra, at p. 764.)  A local ordinance similar to our hypothetical ordinance arguably would prohibit exercise of an activity that the AUMA intends to promote, i.e., personal indoor marijuana cultivation;
  4. The AUMA mandates some level of local accommodation from municipalities.  It specifically strips municipalities of the power to completely prohibit indoor personal marijuana cultivation;
  5. One of the stated purposes of the AUMA is to "[p]ermit adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits [§§ 11362.1, 11362.2] for use by adults 21 years and older as set forth in this Act."

If the AUMA is approved by California voters in 2016, the preemption issue will undoubtedly arise (perhaps in the context of the lingering federal prohibition of cannabis).  Conservative cities throughout Riverside County, such as Temecula, Murrieta, and Riverside will flirt with enacting regulations that may amount to a functional ban on personal indoor marijuana cultivation.  It will be up to the courts to determine whether such regulations are "reasonable" and whether they amount to "complete prohibitions."    

Posted by Mike Donaldson.