California Cities Sue to Reverse Regulations by the Bureau of Cannabis Control to Allow Cannabis Delivery

By Tammye McDuff

Delivery regulations are undermining local control enacted by voters who passed Proposition 64.

The City of Downey has joined a diverse coalition of 25 local governments in a lawsuit against the California Bureau of Cannabis Control [BCC].

The lawsuit, filed by attorneys at Churchwell White LLP, seeks to invalidate recent regulations by the BCC that violate the will of voters and the law by claiming to allow delivery of commercial cannabis statewide even in those communities that have regulated or banned commercial cannabis.

“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,” said Mayor Rick Rodriguez, “We want to make sure that Proposition 64 is implemented consistent with the way it was voted on and passed by voters, to ensure the state does not take away local control.”

In November 1996, California voters approved Proposition 215, which decriminalized specified uses of medical cannabis. In 2015 the Medical Cannabis Regulation and Safety Act was adopted and in November 2016 California voters approved Proposition 64 which gave cities the control to regulate and tax adult use of marijuana, legalizing the recreational use of cannabis under state law. October 2017, Downey City Council unanimously passed regulations related to recreational marijuana use in Downey, including limiting personal cultivation to six plants and banning commercial dispensaries.

The local governments initiating the lawsuit against the BCC are: 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.

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 ‘cannabis] delivery employee may deliver to a physical address anywhere in the state…’  Mayor Pro Tem Blanca Pacheco stated, “Proposition 64 promised to allow cities the ability to regulate or prohibit any or all commercial cannabis activities within their community, which is one of the main reasons why many voters supported this proposition. The new regulation[s] by the BCC seeks to break that promise.”

The Plaintiffs assert that the BCC ignored the specific language of Proposition 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.

“We don’t want marijuana in our city. Our residents are clear about that,” said Rodriguez, “This skirts that original agreement in Proposition 64. We feel lied to. It’s a broken promise.”