By Christopher Glew
In 2011, medical marijuana patients and providers were greeted with a new piece of legislation restricting the location of cooperatives, collectives, dispensaries or other providers of medical marijuana. The new legislation can be located in the California Health and Safety Code under Section 11362.768. The basic premise of this new law is to prevent any medical marijuana provider from locating within 600 feet of a school, (“school” being defined as kindergarten through grade 12, public or private. The definition excludes colleges, daycare and at-home schooling.) Since this law is brand new, it will of course be some time before it is interpreted by the courts and the meaning will likely alter. The process has actually already started as a number of cities are utilizing this section to challenge the location of medical marijuana establishments. It is important to follow how these cases are handled by the courts as they wind their way through the litigation process. The lineage of cases stemming from the interpretation of this code could significantly impact issues like grandfathering, definitions of medical marijuana providers, scope of local plenary powers and a host of other critical legal points. Several of the new sub parts are worth examining in more detail at this time.
The first part to immediately become familiar with is the introductory language regarding who this new law applies to.
(a) This section shall apply to individuals specified in
subdivision (b) of Section 11362.765.
(b) No medical marijuana cooperative, collective, dispensary,
operator, establishment or provider who possesses, cultivates, or
distributes medical marijuana pursuant to this article shall be
located within a 600-foot radius of a school.
Subsection (a) indicates that this new law applies only to individuals specified in subdivision (b) of 11362.765. It has been argued that this section only concerns caregivers and individual patients. A plain reading of that section clearly indicates that it is in fact the case. The impact of this is critical because, if reviewing courts agree, 11362.768 would effectively be null and void with respect to medical marijuana providers as we know them. Subsection (b) is very important as well. There has always been some debate, spurned by critics of medical marijuana, that collectives and cooperatives were not proper definitions for any provider. The argument was that all providers are in fact just illegal distributors/drug dealers of marijuana. Before this new section came into effect, the only reference to the terms collective and cooperative as specific entities could be found in the Attorney General Guidelines. The new piece of law is the first time we see a codified reference to these entities that can no longer have their existence questioned. The additional point to note is that they effectively describe a host of separate descriptions for medical marijuana providers. This listing will eventually require some further piece of legislation or examination by the courts to define these entities.
Another aspect of this new law is the inclusion of language regarding local plenary powers regarding regulation of these facilities. There exists a strong debate with regards to the scope or even existence of local authority to regulate, zone, ban, license, etc. medical marijuana providers. There has been virtually no definitive statutory reference to these local powers until now.
(f) Nothing in this section shall prohibit a city, county or city
and county from adopting ordinances or policies that further
restrict the location or establishment of a medical marijuana
cooperative, collective, dispensary, operator, establishment or
provider.
(g) Nothing in this section shall preempt local ordinances,
adopted prior to January 1, 2011, that regulate the location or
establishment of a medical marijuana cooperative, collective,
dispensary, operator, establishment or provider.
This language is certainly not a clear outline of local plenary power regarding medical marijuana distribution facilities. However, this section will be argued by conservative opponents of medical marijuana as a legislative intent to broaden and expand the local government’s right to zone, ban, and regulate these facilities.
This new law will have a significant impact on medical marijuana distribution. The extent to which this new language will affect the existence of medical marijuana providers is yet to be fully determined. I strongly encourage all those involved in the MMJ community to read and become familiar with this new piece of the medical marijuana puzzle.
Christopher Glew is a Southern California attorney who specializes in medical marijuana law and is a partner with the Law Offices of Glew & Kim. You can reach him at (714) 648-0004 or through www.themarijuanalawyer.com.
