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State Initiative to Legalize Marijuana One Step Closer to Ballot

The proponents of “The Regulate, Control and Tax Cannabis Act of 2010,” which would legalize marijuana for personal use by those twenty-one years of age or older, reportedly submitted over 700,000 signatures to the Secretary of State on January 28, 2010, in an effort to qualify the measure for the November 2010 ballot (“Initiative”).

The Secretary of State has eight business days from submission of the Initiative to perform a raw signature count, and then has up to sixty days to determine whether the Initiative has the 433,971 valid signatures necessary to be placed on the November ballot.

Summary of the Initiative

If passed, the Initiative would legalize “marijuana-related activities”, and would allow local governments to regulate those marijuana-related activities. Under the Initiative, persons twenty-one years of age or older may engage in “personal consumption” of marijuana in a residence or in “public establishments licensed for on-site marijuana consumption.” Additionally, individuals may possess, process, share or transport not more than one ounce (28.5 grams) of cannabis for that person’s individual consumption. The Initiative authorizes the state legislature or local governments to increase the permissible amount of marijuana for “personal consumption.” The Initiative also permits the state legislature to establish a statewide regulatory system for a commercial cannabis industry.

The Initiative would allow the consumption and sale of marijuana in “marijuana establishments” licensed by local governments, i.e., cities and counties. However, nothing in the Initiative, specifically mandates local governments to allow marijuana establishments within their respective jurisdictions. If a local government authorizes such establishments, it may limit the location, size, hours of operation, signs and displays of the establishments.

The Initiative would also allow the cultivation of marijuana by persons over the age of twenty-one, with the limit of no more than twenty-five square feet of marijuana per residence, or per parcel of property. While the Initiative empowers local governments to adopt ordinances and regulations regarding the cultivation of marijuana, local governments could not prohibit cultivation in its entirety. Pursuant to the Initiative, local governments may also adopt ordinances regarding the processing, distribution, transportation, sale and possession of marijuana. If a local government adopts an ordinance permitting the sale of marijuana at licensed establishments, the Initiative authorizes the imposition of taxes on marijuana-related activities. Any taxes on marijuana-related activities would be imposed or adopted consistent with applicable law. Under the Initiative, fees may also be imposed by the local agency to offset costs associated with marijuana regulation, permitting activities, and the direct and indirect costs incurred by the local government..

The Initiative will also impact employers in California: Employers will not be able to punish, fine or discriminate against individuals that engage in personal consumption of marijuana or cultivation of marijuana as permitted by the Initiative. Employers will retain the right, however, to address consumption of marijuana that affects an employee’s job performance.

Status of the Initiative

The Secretary of State will announce whether the measure has qualified for the ballot within sixty days from the date the raw signature count is verified. If this initiative is passed by a majority vote, it will take effect the day following the election, or November 3, 2010.

Local governments should follow the developments of this Initiative, and in the event that the Initiative passes, they may want to consider options in adopting regulations related to cultivation of marijuana and/or regulations licensing marijuana establishments within the community. Additionally, the Initiative is likely to impact local government regulations related to medical marijuana collectives or cooperatives as collectives or cooperatives may seek to expand and be licensed establishments serving all members of the public over the age of twenty-one.

The full text of the Initiative is available on the Secretary of State’s website. (A.G. File. No. 09-0024).