Does AB 1300 allow cities to ban dispensaries? Depends on who you ask
By David Burton
The Huffington Post called it the end of “the Wild West days of medical marijuana dispensaries in California,” while the LA Weekly cleverly declared that pot shops “can now be snuffed out in cities like L.A.”
But does Assembly Bill 1300, which Gov. Jerry Brown in September signed into law, really give California cities the power to ban dispensaries? According to experts, including a spokesman for the state legislator who wrote the bill, the answer is a tentative “no.”
What the bill does do is amend California Health & Safety Section 11362.7, the state code generated by Senate Bill 420 that essentially established the state’s Medical Marijuana Program. Nowhere in the amended language is the word “ban” (or, for that matter, “snuff out”) mentioned. Indeed, the relevant portion of the bill is just 32 words: “Nothing in this article shall prevent a city or other local governing body from . . . adopting local ordinances that regulate the location, operation or establishment of a medical marijuana cooperative or collective.”
According to a spokesman for the bill’s author, Assemblyman Bob Blumenfield (D-Van Nuys), the intent of the bill wasn’t to ban dispensaries, but to provide an answer to the endlessly litigated question of whether dispensaries are subject to local land-use controls, such as zoning laws. Dozens of California cities have either applied existing zoning laws or drafted new ones that prevent dispensaries from operating within their borders. Medical cannabis advocates argue such actions constitute de facto bans on cannabis shops, and in several cases have sued the cities for allegedly violating Proposition 215’s promise of patient access to cannabis medicine.
Now, when a dispensary operator claims Proposition 215 exempts him or her from city zoning laws because state law trumps local law, a city official can point to AB 1300 and say, “This is state law, and you’re not exempt.”
But the bill is mum on the question of bans, and for a reason, the spokesman said: With all the zoning-related lawsuits working their way through the legal system, that question will eventually be addressed by the courts. The spokesman stressed that, to his knowledge, Blumenfield has never taken a position on whether the Medical Marijuana Program itself is a good or bad thing.
Kris Hermes, spokesman for the medical cannabis advocacy group Americans for Safe Access, says that even with the uncertainty over the reach of AB 1300, the law could prove a blessing in disguise for patients.
“We opposed [AB 1300] on the basis that one of the interpretations of the bill could be that local governments have the authority to ban dispensaries within their city limits, but that’s only one interpretation,” he says. “Another certainly is that this bill is another piece of legislation that recognizes the legality of local distribution. We’re certainly going to use that in pending legislation. It will ultimately likely be up to the courts to decide whether localities can in fact ban dispensaries.
“We remain adamant that this activity is legal under state law and cannot be banned as a right,” he continued. “Local law cannot preempt state law in this regard.”
MOON OF ACTION
While Gov. Jerry Brown made news last month for signing AB 1300 into law, Moonbeam’s previously played a big role in California’s MMJ landscape. Three years ago as Attorney General, Brown issued an 11-page directive that spelled out the guidelines that dispensaries and collectives must follow. They include selling only to legitimate patients, operating as a nonprofit and securing cannabis from fellow cooperative members and not professional growers. “We are not out to harass legitimate clubs,” Brown said back in 2008.