Why are cities trying to shut down cannabis delivery services?

Earlier this month, 24 California cities and one county filed a lawsuit against the state of California in Fresno County Superior Court seeking to invalidate state regulations allowing statewide cannabis delivery by license holders. The plaintiffs are local jurisdictions that all tried to prohibit recreational cannabis sales in their jurisdiction, including Santa Cruz County and the cities of Clovis, Ceres, Newman, Oakdale, Patterson, Riverbank, Turlock, Atwater, Sonora, Tracy, Angels Camp, Dixon, Vacaville, Agoura Hills, Arcadia, Beverly Hills, Covina, Downey, McFarland, Palmdale, Riverside, San Pablo, Tehachapi and Temecula. (Beverly Hills' decision to join in the lawsuit is difficult to understand, given that in August 2017 the city passed an ordinance expressly allowing medical cannabis delivery into Beverly Hills.)

The plaintiff cities argue that recreational cannabis deliveries into cities and counties that have prohibited cannabis sales violate Proposition 64, the voter initiative to legalize cannabis in California. Prop. 64 provided local jurisdictions the power to control how commercial cannabis is regulated within their borders. The main area of concern for city officials, residents and law enforcement is an alleged increase in criminal activity from delivery services entering into and conducting transactions within the city.

Specifically at issue in the lawsuit is how the Business and Profession Code should be interpreted in the context of licensed delivery services. Section 26090 of the code says that a "local jurisdiction shall not prevent delivery of cannabis or cannabis products on public roads by a licensee acting in compliance with this division and local law as adopted under Section 26200." Section 26200 provides that a local jurisdiction is allowed to "adopt and enforce local ordinances to regulate" cannabis businesses "including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related to reducing exposure to secondhand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction."

This litigation is ill-conceived despite statutory language that gives localities broad leeway to regulate any commercial cannabis activity within their borders. State law permits local jurisdictions to ban commercial cannabis storefront and non-retail operations within their borders, but it does not allow local governments to prevent people or companies holding valid licenses from delivering cannabis into their jurisdictions. Californians purchase and use cannabis in every part of the state. A delivery ban will not cause them stop using it. Cannabis has many benefits that cause people to continue seeking it; if local governments refuse to issue licenses, then most or all of the cannabis activity will simply shift from the regulated market to the illicit market, in which the operators comply with no regulations and pay no taxes. Delivery services will still operate, just without licenses. More illicit market dispensaries will proliferate and many residents will travel out of the local jurisdiction to purchase cannabis, taking money out of their own local economy.

Increased access to cannabis has other benefits as well. Opioid abuse is endemic among young people. Addicts are overdosing on fentanyl at alarming rates. Easy access to cannabis may help to reduce opiate deaths by giving people a safer alternative to opiates for pain management, and by making it easier to deal with withdrawal. Anyone who cares about harm reduction should not be trying to shut down opiate users' access to cannabis. Delivery services are vital for patients/consumers who are unable to acquire cannabis products due to lack of ability or mobility (lack of transportation, physical ability, sickness, etc.), and distance (in some areas patients have to travel up to 60 miles to the nearest dispensary). It also reduces the potential for driving under the influence (of cannabis, alcohol or prescription drugs) by avoiding the need for consumers to drive long distances outside prohibition jurisdictions in order to obtain cannabis.

The provisions of the Business and Professions Code at issue in the cities' lawsuit are not clear. They say a "local jurisdiction shall not prevent delivery of cannabis ... on public roads by a licensee acting in compliance with ... local law." They also say localities are allowed to "completely prohibit the establishment or operation" of any type of commercial cannabis activity. Continuing this litigation could turn into a mess. The state should put a simple end to it by amending the law to make clear that delivery license holders are allowed to delivery anywhere in the state.