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Recreational Marijuana is Legal in California – Now What?

On November 8, Californians approved Prop 64 – the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA” or “the Act”), legalizing recreational marijuana use for adults 21 and older, effective November 9, 2016. While many cities and counties have ordinances or other regulations governing medical marijuana, such ordinances and regulations may be insufficient to cover “nonmedical” marijuana, governed by AUMA.

AUMA creates a licensing and regulatory system for nonmedical commercial marijuana activities, including sales, distribution, cultivation, manufacturing, and testing. The regulatory structure is similar to the one created under the Medical Cannabis Regulatory and Safety Act, passed in 2015. AUMA expands the duties of the Bureau of Medical Cannabis Regulation, Department of Consumer Affairs, Department of Food and Agriculture, and Department of Public Health. The Act also imposes taxes on commercial sales and cultivation of nonmedical marijuana.

While AUMA preserves substantial local control over the regulation of public consumption, outdoor cultivation, and commercial marijuana activities, it still impacts local governments in numerous ways. Below are highlights of how AUMA affects local governments and some possible “next steps” for a city or county.

1) Review land use ordinances and make any necessary changes to comply with AUMA’s requirements.

AUMA allows for local governments to reasonably regulate-but not entirely ban-the personal cultivation of up to six marijuana plants within a private residence. The term “private residence” includes a house, an apartment, a mobile home, and an enclosed and secure greenhouse (that is not visible from a public area) on a residential property. If your city or county has an ordinance that allows cultivation, check the language to ensure that the ordinance includes reasonable regulations, sufficient to allow safe indoor growth of marijuana. Also, check that your definitions are consistent with AUMA’s definitions. If your city or county only has a general nuisance ordinance prohibiting outdoor cultivation, and the city or county would like to continue to prohibit outdoor cultivation, consider adopting a land use ordinance that would expressly prohibit outdoor cultivation.

2) If your city or county has a cultivation ordinance, review it to ensure that the cultivation of nonmedical marijuana is included.

Under AUMA, local governments retain total control over outdoor cultivation of nonmedical marijuana. Local governments may therefore allow outdoor cultivation, regulate it, or entirely prohibit it. Although many cities currently have regulations relating to medical marijuana, the language should be updated to include nonmedical marijuana.

3) Assess regulation of commercial marijuana activity.

A city or county may maintain control over the regulation of commercial marijuana activities, and may prohibit such uses under AUMA. Again, land use ordinances should be reviewed, with possible changes necessary to ensure that both medical and nonmedical marijuana commercial uses and activities are included.

A city or county may also tax such activities on top of the state taxes imposed by AUMA. Such tax regulations should also be reviewed to ensure they include nonmedical marijuana commercial activities.

4) Review your local smoking ordinance.

AUMA allows a city or county to prohibit the smoking and possession of marijuana in any buildings owned, leased, or occupied by the city or county. It also generally prohibits the smoking of marijuana in public places, in moving vehicles, and within 1,000 feet of schools, daycare, and youth centers when children are present. Most local smoking ordinances include marijuana in the definition of “smoke,” yet a review should be done to ensure that any prohibitions align with policy desires on smoking.

5) Check your employee handbook.

Under AUMA, employers, including local governments, may prohibit the use, possession, transfer, transport, display, growth, and sale of marijuana in the workplace to maintain drug-free workplace policies. Most alcohol and drug-free policies will cover marijuana use and possession, but a review should be conducted in consultation with your employment counsel. Employers may consider notifying employees that drug-free workplace policies will continue to apply, despite the passage of AUMA.

6) Analyze the role of marijuana in your community.

Now that recreational marijuana is legal in California, your city council or board of supervisors may want to re-evaluate its approach to marijuana. Consider whether the ordinances that currently regulate marijuana are consistent with the overall approach of the community. It may be necessary to seek input from your decision-makers, law enforcement, businesses, and the community on the role of marijuana.

Meyers Nave attorneys provide advice for local government clients on all issues related to marijuana, including land use regulations, taxation, licensing, and labor and employment matters.