Under Prop 64, city and county governments will be able to ban almost all cannabis activity except for personal cultivation of up to six plants in an enclosed structure and consumption, both by an adult at least 21 years old. Otherwise, local governments in California are free to restrict cannabis businesses from operating within its jurisdiction, levy restrictions it determines to be appropriate on what cannabis businesses it does allow, and prohibit outdoor personal cannabis cultivation. For example, a county may allow dispensaries, but prohibit on-site consumption, so that customers may not ingest the cannabis at the dispensary. Should a city or county opt to ban all cannabis businesses it will, however, forego the tax revenue from Prop 64.
In anticipation of cannabis sales going live in January 2018, most counties and other local governments in California have established ordinances determining how much cannabis activity will be allowed within their jurisdictions. For example, Placer County allows indoor and outdoor cultivation of up to six plants, but with some specific requirements. All outdoor cultivation must have fencing to make it not visible to the public or neighbors, and must be set back at least 100 feet from all property lines. Further, Placer County prohibits all commercial sale, manufacturing, delivery, and dispensaries of cannabis, allowing only delivery of medicinal products by a “primary caregiver” to a “qualified patient.” Similarly, Sacramento County does not allow cannabis businesses, including dispensaries, in its unincorporated areas. As another example, the City of Folsom prohibits all outdoor cultivation of cannabis plants. If a city within a county adopts a cannabis ordinance that embodies more restrictive policies than the county requires, the city’s more restrictive laws control within its boundaries.
It probably comes as no great surprise then that conflicts can arise between different cities and counties, since they are given such great leeway within the state to customize their cannabis restrictions. One issue that arises is the legality of cannabis delivery services that necessitate travel through a city or county that bans cannabis delivery, to get to and from areas that do not prohibit such activity. Local governments are able to regulate delivery services as part of their normal business restrictions of cannabis activities under Proposition 64. It has not yet been officially resolved whether local governments can entirely prohibit the presence of cannabis delivery vehicles within their jurisdictions, even if those vehicles are not delivering or picking up cannabis within the city or county at issue. Delivery services already exist for medical cannabis, and these businesses are ready to deliver recreational cannabis as well beginning in January 2018. Other issues are bound to arise as local governments build regulatory schemes.
Kendall Fisher is Editor in Chief of the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.