Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Friday, January 31, 2014

Local governments and marijuana policy

I'm late in joining the exchange between Doug and Rob on local control of marijuana policy.  A couple of years ago, I chaired a City of San Diego task force on local regulation of medical marijuana.  In California, there is very little state-wide regulation of medical marijuana (approaching zero.)  And, in the absence of state control, it has been up to localities to fill the void.  

The San Diego City Council established the task force on which I served in 2009 and we gave the City our recommendations in 2010.  Although the City Council passed an ordinance based in large part on our recommendations, it was rescinded after a backlash from dispensary owners (who used a quirky signature gathering procedure that we have to force Council's hand on the issue).  Today, San Diego has no medical marijuana ordinance and dispensaries operate in a gray area here (to the extent they are able to operate at all.)

My experience on the task force convinced me more than ever of the value in state-wide regulation when it comes to marijuana policy.  There are many aspects of marijuana policy that cities and counties are really not equipped to handle.  And plenty of others that can be addressed locally but are much more efficiently handled at the state level.  

That said, I do think there is real value in local control on some points.  I lean towards Doug's view that cities and counties should be permitted to ban retail sale of marijuana in Colorado and Washington, for example.  I think this sort of local control would be likely to help reform efforts overall, since residents in deeply prohibitionist counties and cities might be less concerned about statewide legalization if they can prevent "pot shops" from operating where they live.  (My position is much different when it comes medical marijuana, where I've found that the sickest patients with the greatest need are the ones who suffer most when they don't have access to local dispensaries.)    

When local control goes beyond land use and retail stores, however, then Rob's concern about the complexity of a dis-uniform regime becomes much more persuasive to me.  It is one thing for a city or country to be able to ban retail marijuana sales (or regulate hours of operation, zoning, outdoor signage, etc.)  It's quite another if cities can regulate, for example, the THC content in products that are sold.  Or, even more problematic, if a locality had the power to ban transportation of marijuana or to re-criminalize personal possession by adults.  For a state-wide regulatory scheme to function well, a marijuana manufacturer in one part of Washington needs to be be able to transport marijuana across the state without being subjected to a patchwork system of transportation regulations and outright transportation bans.

In California, an appeals court recently held that localities can ban all medical marijuana cultivation--even a single plant.  The ruling, if adopted by other appeals courts (or the California Supreme Court), could leave patients in many parts of the state without any legal way to access marijuana.  I think that is a serious problem and at-odds with the intent of California's Proposition 215.  

All this is to say, when it comes to localism, I think the devil is in the details.  On some points, like banning the retail sale of recreational marijuana, the benefits of local control may justify the costs.  But on other items, like THC content or product labeling, I think state-wide uniformity is critical.  

http://lawprofessors.typepad.com/marijuana_law/2014/01/local-governments-and-marijuana-policy.html

Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink

Comments

Great insights!

Posted by: Doug B. | Feb 1, 2014 5:53:00 AM

Nice post, Alex. I agree that California dropped the ball when it comes to regulating (as opposed to merely legalizing) marijuana, and it’s left too much control and responsibility in the hands of local authorities. Although I agree that localities should have some power over marijuana, I don’t see the point of giving them as much control over the drug as you suggest (at least if they’re operating against the backdrop of a more robust state regulatory regime). Namely, why allow them to ban the distribution of marijuana altogether, especially if – as is the case – they cannot ban simple possession or use? Allowing them to ban sale but not use (as you and Doug suggest) suggests there must be some externality associated with sales of marijuana, as opposed to use of the drug. What is this externality? If the real point of banning sales is to reduce access and ultimately use (which Doug suggests is the case), why not just allow localities the right to ban possession and use directly? And if the whole point is to enable localities to restrict access in order to restrict use, why even bother? If national, uniform prohibition hasn’t been especially effective at restricting access, why would we expect that prohibition of sales (not even possession) at the county level would do anything at all to restrict access, especially if all the neighboring counties allow marijuana?

Posted by: Rob Mikos | Feb 1, 2014 9:39:39 AM

These points are all well taken. I think it's true that many--perhaps most--local bans are the result of opposition to legalization generally. Although I do think there is a segment of folks who are OK with legalization in the abstract but don't like the idea of stores in their city/community (believing that the stores bring local advertising/access/and promotion.) I can see a plausible argument that making folks drive 20 minutes to the neighboring county/city could result in somewhat lower use rates than if stores were more accessible. Whatever the reason for local opposition, however, I think that it makes for good politics (if not necessarily policy) to let cities and counties ban recreational retail outlets in a system of legalization (at least right now.)

To my mind, the biggest difference between letting localities ban retail outlets and letting them ban possession is that the latter would subject users to an impossible patchwork system. If a state has "legalized marijuana," users will justifiably have the expectation that they can legally possess small amounts of marijuana state-wide. I think letting localities undermine that would be too much--users would be unfairly trapped if they unwittingly stepped across county lines and the state would suffer since costly arrests and prosecutions would continue. By contrast, if localities can ban retail outlets, the main impact on users is that they just have to drive a bit further if they want legal access. Neither CO nor WA legalizes sales outright--everyone knows they will need to navigate the licensing process to open up shop. So allowing local bans of retail outlets does not upset expectations the same way permitting local possession bans would.

All that said, I can see the merits on the other side. And, I would be especially concerned if a huge percentage of localities enacted retail bans. E.g., if 95% of cities/counties banned retail, meaning that most people in the state would have to drive hours to buy marijuana legally, then local bans could reach a point of effectively nullifying legalization. But, apart from that risk, I tend to agree with Doug that letting reluctant localities come around as they see the benefits in other parts of the state has some upside (at least politically) without a huge downside. And, most of the downside (missing out of the taxes, tourism boost, etc.) falls on the locality banning the stores. (Again, I think the calculus is different for medical marijuana, where asking patients to a neighboring county/city is a much bigger burden than asking that of recreational users.)

Posted by: Alex Kreit | Feb 4, 2014 6:10:05 PM

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