California, cities battle over marijuana home-delivery rule

FRESNO, Calif. (AP) — California faced off in court Thursday against some of its own cities that want to overturn a government rule allowing home marijuana deliveries statewide, even into communities that banned commercial pot sales.

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In a potential setback for at least some of the cities, the judge tentatively sided with the state in questioning whether some of the communities have standing to bring legal action, because they do not have local ordinances in place that conflict with the state regulation.

Without that, “there is no dispute,” Fresno Superior Court Judge Rosemary McGuire wrote in a tentative ruling.

The dispute between the state and 25 of its local governments raises a foundational question in the legal marijuana economy: Who is in charge, the state bureaucracy that oversees the marketplace, or local governments where pot is grown and sold?

The local governments — Beverly Hills, Riverside, Santa Cruz County and 22 other cities — filed the lawsuit in April 2019, asking the court to invalidate the home-delivery rule that “permits commercial cannabis deliveries to any physical address in the state.”

The League of California Cities and police chiefs had complained that unrestricted home deliveries would create a chaotic market of largely hidden pot transactions, while undercutting local control guaranteed in the 2016 law that broadly legalized marijuana sales in the state.

Marijuana companies and consumers had pushed for home deliveries because vast stretches of the state have banned commercial pot activity or not set up rules to allow legal sales, creating what’s been called cannabis “deserts.” Residents in those areas are effectively cut off from legal marijuana purchases.

Nothing will be decided soon. The next hearing in the case was scheduled for mid-November.

In court papers, state attorneys had argued the case was hypothetical, and thus not appropriate for resolution by the court. They pointed out some cities either do not have a local ordinance regarding deliveries, or do not ban deliveries.

“This Court would be required to make substantial assumptions about events which may, or may not, occur at some future point,” the state argued.

That argument was largely echoed in the judge's tentative order. She wrote that cities “must submit evidence to show that they have an ordinance in place which is contrary to” the state regulation. Those that cannot will be dismissed from the case, she said.

Arthur J. Wylene, general counsel for Rural County Representatives of California, an association of state counties, said the judge “wants to be convinced that there is a real, live dispute between all of the parties with regard to this (state) regulation.”

“Courts don’t decide hypothetical questions,” Wylene said.

The state Bureau of Cannabis Control declined comment.

Elizabeth Ashford, a spokeswoman for the online delivery marketplace Eaze, said in a statement that Gov. Gavin Newsom's administration is “standing up for cannabis access, jobs and tax revenues, which is exactly what voters wanted when they passed Proposition 64,” the state law that authorized broad legal sales.

Because pot remains illegal on the federal level, it cannot be sent through the U.S. Postal Service. But people can get it delivered to their door in California. Under state rules, all cannabis deliveries must be performed by employees of a licensed company.

There are about 400 active licenses to deliver pot.

The delivery rule sought to clarify what had been apparently conflicting regulations about where marijuana can be delivered in California.

The 2016 law said local governments had the authority to ban non-medical pot businesses. But state regulators pointed to the business and professions code, which said local governments “shall not prevent delivery of cannabis or cannabis products on public roads” by a licensed operator.

In addition to Beverly Hills, Riverside and Santa Cruz County, plaintiffs include the cities of Agoura Hills, Angels Camp, Arcadia, Atwater, Ceres, Clovis, Covina, Dixon and Downey. Also participating are McFarland, Newman, Oakdale, Palmdale, Patterson, Riverbank, San Pablo, Sonora, Tehachapi, Temecula, Tracy, Turlock and Vacaville.

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Blood reported from Los Angeles