Calif. Judge Tosses Suit Challenging Statewide Delivery

By Willis Jacobson
Nov 19, 2020

A California judge rejected a legal challenge to an ordinance that allows licensed cannabis deliveries throughout the state – regardless of local bans on retail licensing. The judge found there is no conflict between the state law and the laws of the municipalities that brought the lawsuit.

On Tuesday, Fresno County Superior Court Judge Rosemary McGuire ruled in favor of the California Bureau of Cannabis Control (BCC), which adopted a policy in 2018 allowing deliveries anywhere in the state. A group of 25 local governments challenged that law, arguing in their lawsuit that the BCC’s policy violates their ability to regulate cannabis commerce within their own borders.

Judge McGuire, who delayed a bench trial in the case in August so she could receive further briefing, wrote in her order dismissing the suit (read it here) that the court agreed with the BCC that the policy does not directly contradict or preempt local ordinances because the BCC policy does not require local jurisdictions to do anything nor does it prohibit them from doing anything.

“Because the regulation has no application to plaintiffs, the court agrees with the BCC that [the state law] and plaintiffs’ ordinances do not occupy the same field and are not in conflict,” the judge wrote.

Without that conflict, she wrote, “this matter is not ripe for adjudication.”

With the dismissal of the suit, licensed deliveries can continue throughout the state under the BCC policy. If a deliverer goes into a jurisdiction that has set its own bans, the state will not be involved in any enforcement efforts.

Santa Cruz County is the lead plaintiff in the now-dismissed lawsuit, which was first filed in April 2019. Among the other plaintiffs are the cities of Beverly Hills, Palmdale, Riverside and Temecula.

The plaintiffs had argued that when voters approved Proposition 64, the 2016 ballot measure that legalized REC in the state, they did so with the promise that each community would be able to set its own regulations or bans. The BCC’s delivery policy, they argued, burdened those local governments that had already set their own regulations.

Judge McGuire found that wasn’t the case, though, and that the plaintiffs incorrectly assumed that the BCC’s policy commands them to allow cannabis deliveries in violation of their own ordinances. She wrote that the BCC regulations are minimum standards for licensees and that local jurisdictions may establish additional standards and regulations, such as delivery bans, though it will be their job – and not the BCC’s – to enforce those local regulations.

“As the BCC points out, contradiction with the regulation cannot be established merely because plaintiffs’ local ordinances impose constraints that the state law does not,” the judge wrote.

Some within the industry were quick to celebrate the ruling, which was welcomed by many delivery drivers and industry advocates.

The Southern California Coalition, a trade association, sent an email Thursday hailing the “triumph” of the delivery services and expressing hope that the cost of an appeal, combined with what they suggest is a high likelihood of losing that appeal, will deter further action in the case.

The ruling, which maintains the status quo, is not expected to have any significant effect on current business or consumer activity.

Business owners and many consumers supported the BCC’s delivery policy when it was first proposed, in large part because so many jurisdictions had prohibited cannabis commerce and they felt that access would become difficult without delivery services.

About 80% of California’s 482 cities do not permit REC sales, according to the L.A. Times.

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