Does California State Law Authorize Local Jurisdictions to Ban Retail Delivery of Legal Cannabis to Private Residences?


Authored By:  Khurshid Khoja  on  the Continuing Education of the Bar  Marijuana Law

Khurshid Khoja is a shareholder in Emerge Law Group, and the Principal of Greenbridge Corporate Counsel, a business and regulatory law firm representing the legal cannabis industry in California, Oregon, Washington, and Hawaii. He currently serves as the Vice Chair of the Board of Directors of the National Cannabis Industry Association (NCIA), serves as the Co-chair of the Policy Committee of the Minority Cannabis Business Association, and has previously served as General Counsel of the California Cannabis Industry Association (CCIA) and a founding member of its Board of Directors, as well as a co-founder of, and General Counsel to, the Emerald Growers Association (now the California Growers Association).

Visit his website Greenbridge Corporate Counsel

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The legalization of cannabis for adult recreational use in California has significantly increased the demand for cannabis product delivery to private residences. But the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”) recognizes the broad police powers of local jurisdictions, allowing them (1) through land use ordinances to ban entirely in all zoning districts the establishment of state-licensed cannabis businesses that would engage in retail, production, and distribution, and (2) to classify violations as public nuisances. How do these police powers apply to regulating the delivery of cannabis products?

A. MAUCRSA Does Not Address the Limits of Municipal Police Power Regarding Deliveries

As currently enacted, MAUCRSA is silent on the limits of municipal police power that may be exercised by cities and counties in connection with their authority to “ban the establishment and operation” of licensed cannabis businesses under Bus & P C §26200. While MAUCRSA affirms that local governments may continue to exercise their traditional police powers to choose which land uses to allow and which to prohibit, this silence has been interpreted by many local jurisdictions to expand the scope of those police powers—extending their land use authority past the front doors of private homes to prohibit the delivery of lawful consumer goods to their residents.

Certain local governments have acted on such interpretations by passing ordinances that not only (1) prevent cannabis delivery businesses from establishing a “licensed premises” within their borders (see Morgan Hill Mun C §9.16.030), but also (2) unduly restrict the access of their residents to legal, regulated cannabis by prohibiting any licensed cannabis delivery services from delivering to private residences (see Los Gatos Mun C §14.120.020(4)).

B. Total Local Bans on Delivery of Retail Cannabis to Residents are Arguably Expressly Preempted by State Law and Prohibited by Our State and Federal Constitutions.

Only the first type of ordinance is actually consistent with the express intent of MAUCRSA; the second type of ordinance is not only inconsistent with the intent and purpose of MAUCRSA, but also in direct conflict with judicial precedents on the constitutional limits on local police power.

In passing such delivery bans, local jurisdictions are asserting that when it comes to cannabis regulation and oversight, MAUCRSA gives local governments the right to exercise police powers (i) in conflict with individual rights established by California voters, (ii) in a manner that is both arbitrary and discriminatory, (iii) in a way that redefines traditional residential uses to abrogate fundamental constitutional rights, and (iv) without any reasonable relationship to a legitimate governmental purpose, or even a reasonable tendency to promote the public health, morals, safety, or general welfare of the community.

C. Proposed Regulations Would Expressly Preempt Total Local Bans on Delivery of Retail Cannabis to Residents.

Although Senate Bill 1302, introduced in 2018 by Senator Lara, would have addressed this delivery ban issue by explicitly limiting the exercise of local police powers and prohibiting local jurisdictions from adopting or enforcing “any ordinance that would prohibit a licensee from delivering cannabis within or outside of the jurisdictional boundaries of that local jurisdiction,” that bill is now on hold. Instead, the Bureau of Cannabis Control (BCC) recently issued proposed regulations that would have the same effect as SB 1302. Specifically, proposed 16 Cal Code Regs §§5415(a), 5416(d) would clarify the intent of MAUCRSA by allowing delivery employees of licensed retailers to make cannabis deliveries “to any jurisdiction within the State of California.” If adopted, BCC’s proposed clarification of the law would provide the seriously ill and disabled Californians with safe and reliable access to medical cannabis, and open up hundreds of new local markets to small and minority-owned delivery-only businesses (as well as big players like Eaze), creating more well-paying industry jobs and generating significant additional tax revenue, among other benefits.