Interplay of California State, County, and City Laws

Q: I belong to a Northern California collective, and I grow medical marijuana plants for the benefit of other patient members of the collective, but I can’t figure out which laws I have to comply with.  State law seems to say something different than my local county and city regulations.  Which laws do I need to follow in order to stay in compliance?

A: As of right now, all of them.  The Compassionate Use Act of 1996 itself places no per se limitation on the quantity of a) dried cannabis, or b) marijuana plants per patient, leaving the determination of quantity to licensed physicians, to whatever quantity is “reasonably related” to their medical needs.  California Health and Safety 11362.5; People v. Kelly (2010) 47 Cal.4th 1008, 1049.  The Medical Marijuana Plan passed in 2004 places limitations on the amount of cannabis and plants patients and primary caregivers possess, including:  “no more than eight ounces of dried marijuana per qualified patient”, and “no more than six mature or 12 immature marijuana plants per qualified patient”.  H&S §11362.77(a).  However, as the California Supreme Court noted in Kelly, the Medical Marijuana Plan cannot place any limit on a patient’s right to possess medical marijuana, dried or plant, to the extent that it would deprive the patient of present a defense in court to criminal charges for growing or possessing marijuana.  So a patient must comply with the limitations of the Medical Marijuana Plan, but only to an extent using more dried marijuana or growing more marijuana plants is reasonably related to their medical needs.

What about county regulations?  Not many counties contain any specific limitations or prohibitions of growing marijuana collectively.  However, many counties contain either restrictions on the number of storefront medical marijuana dispensaries, and some counties restrict them entirely.  Normally, those counties that do permit storefront dispensaries but install strict requirements pursuant to a use permit application for a location.  For example, in Stanislaus County, the permit for a storefront dispensary requires high grade security on the building location, including cameras, a secure front area where patients come in, and approval by the county Sheriff as to the floor plan, location and legality of the operation.  Stanislaus County Code, Sec. 9.86.110.  Patients seeking to cultivate through a storefront dispensary must comply with any and all applicable county regulations, as counties have the power to place reasonable zoning and use restrictions on dispensaries.  City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1158.

The same logic applies for regulations by incorporated cities.  When operating any collective or dispensary location within a city’s limits, it is the ordinance of the city which sets forth the rights and limitations to grow or dispense medical marijuana, not the code of the county in which the city lies.

How strict can the regulations be?  Generally, the same rules which apply to any local ordinances apply to those governing the growth and dispensing of medical marijuana:

Under article XI, section 7 of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” “`If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.’ [Citations.]” Kruse, 177 Cal.App.4th at 1168-1169, citing Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.

In short, counties and cities may enact regulations on medical marijuana to an extent that they are not pre-empted by state law.  Recently, Assembly Bill 1300, approved by Governor Brown on August 31, 2011, makes this common law rule explicit with respect to medical marijuana, by permitting county and municipal agencies from adopting and enforcing ordinances that regulate the establishment of collectives and cooperatives.

For better and for worse, this complex interplay of state, county and city regulations creates a confounding labyrinth of pitfalls for any patient cultivating or planning to open a dispensary.  In order to know the fullest extent of your rights, contact a skilled legal professional so you can make the most informed decisions possible in this area of uncertainty. 

Beck Law P.C. offers an entire scope of California Medical Marijuana services to medical marijuana clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.

Beck Law P.C. can furnish the experience and knowledge to help guide you through the legal aspects of your current situation, needs or plans. Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.


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