When California legalized recreational marijuana use in 2016, one group of investors called upon the state to set local limits. These limits, called medical certification zones, would allocate pot shop licenses to select, local businesses that are committed to an industry that is politically complicated. But that plan has been upended by a newly discovered variation in the law.
Despite what the law says, according to the state’s annual Cannabis Monitoring Report released earlier this month, local jurisdictions are still using this provision as an arbitrary means to block more pot shops from opening. Overall, 83 percent of the state’s 650 licensed pot shops were operating or on the verge of operating in June 2018, according to the state report. But in medical certificate zones, only 30 percent were operating or in the planning stage.
That is, in part, because local governments appear to be violating the law itself.
The 420 Patients Action Network, an organization that advocates for medical cannabis patients, is among those whose members are watching carefully, as recreational pot shops proliferate across California. It has spent the last few years lobbying local government officials across the state. “There are 26 municipalities where we have folks that are being told that there are no medical certification zones,” said Ron Jamison, president of 420.
Such restrictions are problematic because they are ultimately up to local government officials. They do not clearly define what the terms “local government” and “medical certification zones” mean. And it is unclear what happens when state and local governments exceed their limits. Local governments that have exceeded their limits face penalties, but those penalties may be difficult to enforce. And local governments that are clearly violating the law could face the state Attorney General’s Office, which could force them to apply the same discipline to state-licensed stores.
By contrast, states that have legalized recreational marijuana have decided that local governments should set local caps on the number of pot shops. In Colorado, retail sales of pot began in 2014, and by the end of that year, the state had legalized sales for anyone over 21. Local governments voted to cap the number of shops, which amounted to at least 1,000 within seven cities.
But when the state started issuing new licenses in 2018, there were only 742 retail sales permits issued. In January, a federal judge held that cannabis dispensaries that had remained open to sell medical marijuana in Colorado’s medical certificate zones for years were subject to penalties. Last week, a federal judge in San Francisco required nearly all marijuana dispensaries in California’s local zones to get a license. But such enforcement is further out of reach.
Even if cities and counties can better define the boundaries of medical certification zones, they will have to grapple with the long-term effects of growing pot use in California.
Tina Post, a law professor at American University in Washington, said patients and medical marijuana users who applied for medical certification for medical use, and did not receive it, had been left out of a system that now appears to be state-licensed but sold for recreational use.
“That breaks the earlier promise of protecting patients,” said Post, who has been advising the state about the effects of cannabis legalization. “It is an insidious violation of patients’ rights.”