LOCAL CALIFORNIA REGULATION OF MEDICAL MARIJUANA COLLECTIVES AND COOPERATIVES (DISPENSARIES)
Since the passage of Proposition 215 in 1996, the Compassionate Use Act and the legalization of the medical use of marijuana, hundreds of counties and cities in California have faced the issue of whether to permit, ban or regulate hundreds of medical marijuana collectives and cooperatives that continue to spring up throughout California. The issue of local treatment of the so-called medical cannabis “dispensaries” ** – whether storefronts or mobile collectives and cooperatives - continues to be fiercely contested and quagmired in controversy fueled by discrepancies and the lack of clarity in the law. On one hand, the California medical cannabis community including patients, activists and medical marijuana criminal defense attorneys point to the obvious observation that without a wide availability of storefront retail-style dispensaries access to safe and accessible medical marijuana is non-existent and meaningless. By contrast, many law enforcement agencies and prosecutors continue to put up relentless, often ruthless, opposition to dispensaries by raids, crackdowns and bad faith civil and criminal prosecutions based on dishonest arguments that California medical marijuana laws prohibit establishments of dispensaries. As of August 2012, this battle and controversy has remained far from being resolved. The raids and crackdowns by local, state and federal police are continuing while California Courts of Appeal have responded to ongoing legal battles between local prosecutors and criminal defense and other medical marijuana attorneys by issuing numerous confusing and contradictory rulings which are begging to be resolved once and for all by the California Supreme Court.
** The proper legal terms for medical marijuana establishments, including retail-style storefronts, engaged in distribution of medical marijuana are “collectives” and “cooperatives.” The California medical marijuana laws, including various provisions within the California Health & Safety Code, require such establishments to be organized as either collectives or cooperatives. A “dispensary” is a colloquial, general or generic term that has no specific legal meaning. Every establishment calling itself a dispensary must either be a collective or a cooperative.
California cities and counties have adopted several different approaches to dealing with medical cannabis dispensaries. Broadly speaking, these approaches can be classified into four (4) distinct scenarios. All California cities and counties have either a dispensary ban, moratorium, regulating ordinance or no medical marijuana related ordinance at all.
Medical Marijuana Dispensary Ban. Many counties (unincorporated areas) and hundreds of cities in California have taken a hard line approach towards medical marijuana collectives and cooperatives by adopting strict zero tolerance bans on storefront retail style as well as other types of distribution of medical marijuana. Some local governments that are particularly hostile to medical marijuana have imposed civil as well as criminal sanctions for operating a dispensary. Such draconian bans have been upheld by various courts who ruled that local governments in California have broad discretion and authority in regulating and even prohibiting certain undesirable businesses and property uses. The question whether bans are consistent with California medical marijuana and other state laws remains to be decided.
Medical Marijuana Dispensary Moratorium. Some counties and cities have opted for a wait-and-see approach and have adopted moratoria as opposed to permanent ordinances either banning or permitting local dispensaries. Some local California governments have simply chosen to wait until the California Supreme Court or California legislature issue clarifications relating to the status and legality of dispensaries under California law. A moratorium can be best described as a temporary ban because a moratorium is in fact a ban except it has a finite duration and expires on its own terms after a definitive period of time, unless replaced or modified by some kind of amendment or subsequent ordinance. Moratoria can vary in duration and typically last from 30 to 180 days.
Medical Marijuana Dispensary Regulating Ordinance. Some California cities and counties issued local ordinances permitting and regulating medical cannabis dispensaries. Regulating ordinances are double-edged swords. While allowing the establishments and operation of collectives and cooperatives, including retail style storefronts, regulating ordinances restrict, often very severely, how dispensaries can operate. Often, a local ordinance will impose strict numerical limits and geographical restrictions on the number and location of the dispensaries that will be allowed to open.
No Local Medical Marijuana Regulation. Many California cities and counties have not adopted any specific ordinances regulating medical marijuana collectives and cooperatives. This kind of scenario results in a situation where there is no ban or no specific permission to establish a dispensary. Ostensibly, a no-local-ban situation should mean dispensaries should be allowed to operate since they are legal under California state law. However, the situation is almost never that simple as counties and cities have found numerous legal and practical ways to prohibit and to shut down dispensaries. For example, many counties and cities have simply refused to issue business licenses and permits to dispensaries and used existing municipal zoning codes, as well as state nuisance laws for example, to prosecute and shut down dispensaries by filing civil lawsuits or directing local police to conduct raids and criminal investigations.
Two Orange County cities – Dana Point and Lake Forrest – have in recent years seen extensive civil litigation brought by local city governments seeking to shut down collectives and cooperatives there. Numerous dispensaries opened in Dana Point and Lake Forrest because there was no regulatory scheme banning or regulating medical marijuana and no requirement to even obtain a business license. However, both cities lashed out against dispensaries with aggressive civil lawsuits on the grounds that dispensaries were not permitted under the zoning laws and constituted a nuisance.
Our website contains specific information on some of the local California dispensary regulations. Our very narrow and selective list and description of how some of the cities and counties our law firm is familiar with have dealt with the issue of medical marijuana represents just a fraction of the hundreds of various local regulations adopted throughout California. This website does not seek to be definitive or authoritative with respect to this type of information. Our main goal is to provide educational content and to enable our clients and the public to stay out of trouble and remain safe and legal. Consequently, we advise you that the information provided here might be out of date as dozens of new local medical marijuana and dispensary ordinances are passed every month. If you are interested in current up-to-date information relating to a specific California city or county we urge you to call our office or to double-check the information by conducting an independent and thorough research.
Information posted on this website regarding specific local regulations of medical marijuana collectives and cooperatives includes the following California counties and cities:
• Lompoc, Santa Barbara County
• Mammoth Lakes, Mono County