Kate Harveston* California recently approved legal marijuana sales for medical and recreational use by adults. But a conflict between state and local law recently led 24 cities and one county in California to sue the state over a new rule allowing the delivery of cannabis to people’s doorsteps.
The jurisdictions suing the state claim each locality possesses the right to determine how legal cannabis companies will be regulated. They base this claim on a conflicting state rule dictating that local jurisdictions can enforce how legal cannabis businesses operate. The court now must decide which rule takes precedence and best achieves one of the stated goals of legalization: legal weed weakening the black market’s grip on the substance.
A Brief History of the Legal Conflict Surrounding Cannabis
Conflicting rules governing the legality of cannabis are far from new. Way back in 1996, when California first voted to legalize cannabis for medical purposes, the state rule conflicted with federal law concerning the substance.
The conflict continues to this day. Although former Attorney General Jeff Sessions (right) pledged to reverse the Obama-era rule of respecting state laws, states where cannabis is legal continue to operate business-as-usual even though possessing, selling or cultivating the substance remains illegal under federal law.
In California, the rules surrounding the sale and distribution of cannabis present an even murkier legal quagmire. Well before cannabis became legal statewide, local jurisdictions created their own rules on how to deal with arresting people for these offenses.
In 1975, former San Francisco mayor George Moscone introduced Senate Bill 95, making the possession of less than an ounce of cannabis a misdemeanor. In 1979, the Berkeley Marijuana Initiative II made the sale, cultivation or possession of cannabis the lowest priority for law enforcement officers.
Many of the early initiatives, as well as more recent ones, cite the high cost of keeping people behind bars for minor cannabis offenses as reasons to legalize the substance. Keeping an inmate incarcerated in the state costs over $81,000 per year — a burden many taxpayers consider onerous, given the non-violent nature of most offenses. Regardless of the underlying reasons, however, the possession, sale and cultivation of cannabis by adults aged 21 and older became legal for recreational purposes on January 1, 2018.
When the recreational use of cannabis first passed, local municipalities retained the right to control how these legal marijuana retailers conduct their business.
Over 100 state-licensed delivery companies exist. However, cities and counties could refuse to allow such businesses to deliver in their jurisdiction. This rule resulted in confusion for many in the industry, as delivery personnel had to consult complicated maps indicating where they could and could not go.
Confusing Enforcement Rules
Even among those sworn to uphold the law, the rules made enforcement confusing and potentially unfair. Members of the California Highway Patrol expressed frustration over the difficulty of enforcing the rules, as seen in a recent case where two former officers who now operate a legal cannabis business were pulled over and arrested.
The California Office of Administrative Law moved to eliminate some of the confusion in January by upholding a Bureau of Cannabis Control rule stating licensed delivery companies could provide service anywhere in the state. The measure raised the ire of local jurisdictions who wanted such businesses to obtain a local license in addition to state certification.
Under current state law, legally licensed delivery vehicles may contain no more than $5,000 worth of cannabis. Additionally, these vehicles may not advertise in any way that they carry the substance, as such markings could look like welcome mats to thieves. Delivery drivers, like their customers, must be at least 21 years old.
On the consumer side, individuals can smoke or otherwise use cannabis in private without the worry of law enforcement knocking on their door. Those choosing to purchase through a delivery service must present identification, and only the person who placed the order can sign for the product. Using cannabis in public areas, schools or anywhere tobacco smoking is banned remains prohibited.
The localities suing the state over the new rules feel the measure goes against the intent of the voters when they approved legalization. They argue overruling local rules surrounding the substance represents big government superseding their authority.
Proponents of the state rule argue making delivery illegal in some cities but not in others creates too much confusion in what is already a gray legal area. Additionally, they express concern that those unable to order cannabis via delivery may turn to the black market. Despite legalization, California still has a thriving black market, and a sizable percentage of cannabis in the state comes from such sources.
The Potential Impact of the Future Court Ruling
If the court decides that the state law does supersede local ordinances, cannabis activists will claim it as a victory for the movement. Should the court side with the local authorities, however, businesses, consumers and law enforcement alike will need to wade through more paperwork. Cities, however, will obtain the ability to add to their coffers by charging local licensing fees for canna-companies.
The law surrounding cannabis legalization seems to change almost daily, and judges and attorneys alike scramble to keep up. Future suits will continue to create new precedents. Whatever the court decides, it’s fascinating to watch history occur before our eyes.
Kate Harveston is a young writer pursuing a career in journalism. She holds a Bachelors in English and minored in Criminal Justice, so she enjoys writing about anything related to politics, law and culture. If you would like to read more of her work, you can visit her blog, Only Slightly Biased