As California prepares to allow the retail sale of recreational marijuana, or cannabis, on January 1 per voters’ passage of Proposition 64 in 2016, SCVNews takes a look at the sometimes conflicting cannabis laws on the federal, state and local levels.
California voters approved the ballot initiative, also known as the Control, Regulate and Tax Adult Use of Marijuana Act, by a 57 percent margin on November 8, 2016, and the state will begin licensing commercial nonmedical cannabis sales statewide on January 1, 2018.
Proposition 64 also established the California Bureau of Cannabis Control within the Department of Consumer Affairs to be the lead agency overseeing all things cannabis in California.
California was the first state to legalize marijuana for medical use in 1996 when voters passed Proposition 215, also known as the Compassionate Use Act. Next week, California will become the seventh state to legalize cannabis for adult recreational use, too (recreational cannabis is also legal in Washington D.C.). Almost three-fifths of the states – 29 – now permit medical and/or adult-use recreational cannabis.
But federal and state marijuana laws have remained in conflict for the more than two decades since California voters approved Proposition 215.
Further, Proposition 64 allows municipalities to establish local regulations that may add another layer of conflict between federal, state and local jurisdictions.
Federal: Schedule 1 Drug
The U.S. government classifies cannabis as a Schedule 1 controlled substance under the federal Controlled Substances Act, the same as heroin and LSD. While enforcement of federal laws against possession was not a priority in the last few years of the previous presidential administration, marijuana remained a Schedule 1 drug.
Current Department of Justice chief Jeff Sessions has made it clear on numerous occasions he does not abide the rescheduling of cannabis or relaxing the enforcement of federal laws in any state that now permits medicinal or recreational cannabis.
For Californians, this means federal authorities may continue to seize even small personal-use amounts of cannabis found on people or in vehicles entering the U.S. from Mexico as well as at other Border Patrol checkpoints around the state’s interior.
Nor is possession or consumption of cannabis allowed on federal lands, like national parks, and it’s unlawful to take cannabis across state lines, even if you’re en route to another state where it’s legal.
“It’s going to be the same after January 1, because nothing changed on our end,” Ryan Yamasaki, an assistant chief of the Border Patrol’s San Diego sector, told The Associated Press. “If you’re a federal law enforcement agency, you uphold federal laws.”
California Law in 2018
California’s Adult Use of Marijuana Act permits the following as of January 1:
* Personal possession by adults 21 years of age and older up to 28.5 grams of cannabis leaf or flower or eight grams of concentrated cannabis;
* Cultivation of up to six cannabis plants for personal use, kept in a secured, non-public space;
* Sale of recreational cannabis by retailers who obtain a license;
* Employers may ban use of cannabis by employees;
* Property owners may forbid cannabis possession on their property (subject to normal tenant laws for renters).
The state law prohibits:
* Public cannabis consumption (on-site consumption at licensed premises will be permitted at a later date);
* Smoking or vaping cannabis in any non-smoking area or within 1,000 feet of a school, daycare or youth center while children are present, except privately at a residence;
* Possession of cannabis on school grounds;
* Possessing an open container of cannabis while driving or riding as a passenger in any motor vehicle, boat or airplane;
* Manufacture of concentrated cannabis with a volatile solvent;
* Possession of any cannabis product by a minor under the age of 21.
Possession of more than an ounce of cannabis remains a misdemeanor punishable by a $500 fine and/or six months in jail if convicted. Other offenses, including growing more than six plants, transporting more than an ounce, unlicensed sale or distribution for compensation, or possession with intent to sell, are all now misdemeanors, downgraded from felonies (except in certain aggravating circumstances).
Use of medicinal cannabis continues to be legal for California residents 18 years and older who have a current physician’s recommendation, a valid county-issued medical marijuana ID card, or serve as a primary caregiver.
Proposition 64 calls for testing of cannabis to ensure quality-potency and that growers and manufacturers are not using dangerous pesticides or other harmful chemicals.
Until July 1, 2018, retailers can legally sell cannabis products produced before the testing requirements took effect. However, any cannabis that has not been tested will need to be clearly labeled as such.
Testing will be required for all cannabis products cultivated or manufactured after January 1. Requirements for testing will be phased in over the next year, starting with contaminants that pose the greatest health risks.
Per Proposition 64, as the state’s lead agency for medical and adult-use cannabis, the California Bureau of Cannabis Control is responsible for licensing cannabis retailers, distributors, testing labs and microbusinesses, and working toward a smooth transition to the legal market. The Bureau’s first chief is Lori Ajax.
Other California agencies have responsibilities supporting the CBCC’s effort:
* The Department of Consumer Affairs will license and oversee marijuana retailers, distributors, and microbusinesses;
* The Department of Food and Agriculture will license and oversee marijuana cultivation, ensuring it is environmentally safe;
* The Department of Public Health will license and oversee manufacturing and testing, ensuring consumers receive a safe product;
* The California Department of Tax and Fee Administration (formerly the State Board of Equalization) will collect the special marijuana taxes, and the Controller will allocate the revenue to administer the new law and provide the funds to critical investments.
The CBCC posted a package of informational documents on its website on December 7 as the January 1 deadline loomed.
Law Enforcement Challenges
Legalization of recreational cannabis is of particular concern to state and county law enforcement officials, who anticipate an increase in people driving under the influence of drugs.
From 2005 to 2015, the percentage of drivers in fatal collisions who had an impairing drug other than alcohol in their system increased from 26.2 percent to 42.6 percent, according to National Highway Traffic Safety Administration statistics.
As long ago as 2012, a roadside survey showed more California drivers tested positive for drugs that may impair driving (14 percent) than did for alcohol (7.3 percent). Of the drugs, cannabis was most prevalent, at 7.4 percent, slightly more than alcohol.
More recently, the L.A. County District Attorney has provided specialized training to L.A. County Sheriff’s deputies in determining what substances – or combination of substances – might be impairing a driver.
While field sobriety tests and legal blood limits have long been in place for alcohol-related DUI cases, at present there is no such reliable field test for cannabis available yet to law enforcement officials.
Another challenge: DNA tests of human saliva or hair samples show that THC, the ingredient in cannabis that produces euphoria, can linger in the nervous system for weeks after the euphoric effect has worn off. The science of what exactly constitutes impaired driving after smoking or ingesting cannabis remains to be determined.
A bill introduced by state Assemblyman Tom Lackey (R-Palmdale) in September 2017 would assign the California Highway Patrol as the lead agency to coordinate enforcement of “offenses involving the transportation of cannabis across local jurisdictions and offenses involving interstate commerce, including, but not limited to, violations of Sections 11360 and 11361 of this code and Section 23152 of the Vehicle Code.”
County Maintains Ban
Los Angeles County Supervisors have banned all cannabis businesses in the unincorporated areas of the county.
The ban will remain in place until officials “adopt a comprehensive regulatory framework for cannabis businesses,” according to the county’s Office of Cannabis Management, created in late 2016.
Joe Nicchitta is the countywide coordinator for the OCM, reporting to the county’s CEO. Nicchitta previously worked at the County Counsel’s Office as counsel to the Regional Planning Commission, Regional Planning Department, Arts Commission, Natural History Museum and Los Angeles County Museum of Art.
While Los Angeles, Long Beach and West Hollywood are among the incorporated cities in L.A. County that permit commercial cannabis operations, the Supervisors have also prohibited those in unincorporated county territory.
County officials held public discussions throughout the county including in Castaic in 2016 to gather citizen feedback about recreational cannabis before the Supervisors decided on the ban.
Earlier this month, the Supervisors adopted an ordinance for cannabis businesses to establish health and safety standards for employees involved in preparing and selling cannabis products.
The OCM also released a set of proposed cannabis policies for unincorporated areas of the county. The policies seek to “prioritize the protection of public safety and health as well as the quality of life in our communities,” according to the OCM website. The Supervisors are tentatively scheduled to consider the policies in January.
City of L.A. to Regulate and Tax
Medical marijuana dispensaries have been permitted in the city of Los Angeles since voters passed Proposition D four years ago. At present, there are nearly 800 licensed dispensaries in the city limits.
On December 6, the Los Angeles City Council voted unanimously to regulate and tax recreational cannabis cultivation and sales in 2018, projecting as much as $50 million a year in tax revenue.
L.A.’s new rules require cannabis-related businesses to obtain a city permit before they can apply for the state licenses they need to open for business in the new year.
Retail cannabis shops will be prohibited within 750 feet of schools, libraries and public parks, and growers or manufacturers must operate at least 600 feet away from such sites. All cannabis-related businesses must be in areas of L.A. that are zoned commercial or industrial, not residential. The number of licensed retail stores will be limited, and businesses will be required to verify their customers are 21 years or older.
L.A. now has a Department of Cannabis Regulation, headed by Executive Director Cat Packer, former policy director for the nonprofit Drug Policy Alliance.
Packer told the L.A. Times on December 22 that recreational users shouldn’t expect licensed shops to be open January 1, or that they can just go buy cannabis products at a medical cannabis dispensary.
“We are starting a process,” Packer said<. “This is something that is not going to happen overnight.”
The city won’t start taking applications from potential retailers until January 3, with the existing Proposition D-compliant medical cannabis dispensaries getting first priority. Next will be existing growers and manufacturers. Last will be entrepreneurs just now getting into the industry.
City of Santa Clarita Expands Moratorium
The city of Santa Clarita has long prohibited medical marijuana dispensaries or deliveries within city limits.
Soon after Proposition 64 passed, the City Council expanded its moratorium to include manufacturing, distributing or selling cannabis or cannabis products in the city.
And last month, the city adopted an ordinance extending the moratorium pertaining to marijuana cultivation and non-medical marijuana facilities.
However, Santa Clarita’s ban does not prohibit citizens from growing up to six marijuana plants per residence indoors, as allowed by Proposition 64.
According to its 2018 Legislative Platform, Santa Clarita officials will continue to “oppose legislation that seeks to limit or eliminate municipal authority to regulate or ban commercial growing, processing, licensing, sale or transport of cannabis or cannabis products for recreational or medical use.”
Per Proposition 64, recreational cannabis sales will be subject to state and local sales taxes plus an excise tax.
Medical cannabis patients with an ID card issued on a county-by-county basis by the state Department of Public Health will be exempt from the new taxes. But a paper recommendation from a physician alone will not qualify a medical cannabis patient for a sales tax exemption.
Because federal law still equates cannabis with heroin and LSD, and banks are regulated by the federal government, banks have been reluctant to serve the cannabis industry in California.
According to a Marijuana Daily Survey published in December 2015, 70 percent of businesses in the cannabis industry run on cash. The cannabis industry is projecting it will generate $7 billion a year by 2020.
Recognizing the need to handle and account for massive amounts of cash as the Adult Use of Marijuana Act takes effect, a group of California bankers is proposing a central cannabis banking clearinghouse.
Such a bank would provide safety for retailers and further accountability for regulators and tax collectors.
The 17-member Cannabis Banking Working Group is headed by California Treasurer John Chiang, also a candidate for governor, and who sent a letter to the U.S. president-elect in December:
“Of primary concern to my office are the limits federal rules place on the cannabis industry’s ability to effectively participate in the state and nation’s banking system,” Chiang wrote. “This conflict between federal and state rules creates a number of difficulties for states that have legalized cannabis use, including collecting taxes, increased risk of serious crime and the inability of a legal industry under state law to engage in banking and commerce.”
As California joins other states permitting medicinal and/or recreational cannabis, and the federal government keeps cannabis on Schedule 1, it remains hazy how the conflicts between federal, state and local jurisdictions will be resolved.