Author: Jennifer McGrath

Lawyer Jennifer McGrath is a former City Attorney with over 20 years of legal experience. Her law office provides legal support and guidance on California Cannabis Law to members of the cannabis community as well as Cities and Counties in navigating the emerging State and local regulation of both medical and recreational marijuana in this rapidly changing environment.
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State Medical Marijuana Programs Protected by Congress

US Congress Rohrabacher Farr Amendment

State medical marijuana programs have again been protected by the U.S. Congress despite a request by Attorney General Jeff Sessions that the protections be removed (see Jeff Sessions Letter).  Congress and the President signed off on the fiscal year 2018 omnibus funding legislation which keeps medical marijuana protection in place through September 30, 2018.

Rep. Earl Blumenauer, co-chair of the Congressional Cannabis Caucus, said:

“While I’m glad that our medical marijuana protections are included, there is nothing to celebrate since Congress only maintained the status quo.  These protections have been law since 2014.  This matter should be settled once and for all.  Poll after poll shows that the majority of Americans, across every party, strongly favor the right to use medical marijuana.”

“Instead, Attorney General Jeff Sessions is doubling down on the failed War on Drugs and Republican leadership in Congress—led by Chairman Pete Sessions—is stonewalling.  They’re ignoring the will of the American people by blocking protections for state adult-use laws and cannabis banking.  They even refused our veterans access to lifesaving medicine.”

The 2018 omnibus funding legislation extends the Rohrabacher-Blumenauer Amendment (Rep. Dana Rohrabacher, R-California, and Rep. Earl Blumenauer, D-Oregon) which prohibits the use of federal funds to prevent certain States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.  That language was initially passed by Congress in 2014 as the Rohrabacher-Farr Amendment (H.Amdt.748) and is now known as the Rohrabacher-Blumenauer Amendment.

Because the provision is included as part of a Congressional spending package and does not explicitly amend the US Controlled Substances Act, members must re-authorize the amendment annually.  This is the ninth time the amendment has been temporarily extended by Congress.

The Rohrabacher-Blumenauer Amendment was supported by a bipartisan group letter to House and Senate leadership from 66 Congress members including Rep. Dana Rohrabacher and Rep. Earl Blumenauer.

Also in support of the Rohrabacher-Blumenauer Amendment was a letter from California State Treasurer John Chiang.  Read more about state cannabis law at California Cannabis Law.

In August, 2016, the Ninth Circuit Court of Appeals in United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016), unanimously ruled that the Rohrabacher-Farr Amendment bars the federal government from taking legal action against any individual involved in medical marijuana related activity absent evidence that the defendant is in clear violation of state law.

(Update: On May 17, 2018, for the first time ever, the US House Appropriations Committee approved inclusion of the Rohrabacher-Farr amendment in the Commerce, Justice, Science (CJS) appropriations bill for fiscal year 2019.  On June 12, the US Senate Appropriations Committee also approved a base CJS appropriations bill with the Rohrabacher-Farr amendment included.)

Contact us to learn more about California state or local cannabis regulations, cannabis regulatory compliance, and cannabis litigation.

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Marijuana Licensing Update: City of Los Angeles

Marijuana Laws

As the Phase 1 permit window for Los Angeles Proposition D compliant Existing Medical Marijuana Dispensaries (EMMD) is about to close, the City of Los Angeles has not yet publicly announced the opening of the Phase 2 cannabis permit application window.

A Phase 2 applicant is a “Non-Retailer Commercial Cannabis Activity” who was “engaged prior to January 1, 2016, in the same Non-Retailer Commercial Cannabis Activity that it now seeks a License for and provides evidence and attests under penalty of perjury that it was a supplier to an EMMD prior to January 1, 2017.”  The LA marijuana business premises must also meet Los Angeles zoning and sensitive use requirements without any fire or life safety violations and pass a pre-license inspection.  Among other operational requirements, all outstanding Los Angeles City business tax obligations must be paid, and the City must be indemnified from any potential liability.  See the full text of the Los Angeles Municipal Code re Cannabis (Article 4 to Chapter X of the Los Angeles Municipal Code).

The immediate concern for Phase 2 Los Angeles marijuana business applicants is that the window for applications under Phase 2 closes on April 1, 2018, yet the City of Los Angeles has not announced when a Phase 2 LA marijuana business applicant can file an application.  The application period narrows every day for pre-existing non-retail Los Angeles cannabis businesses.

In addition, the City of Los Angeles has not yet publicly announced when the Phase 3 application process for general Los Angeles marijuana business applicants will begin or end.  However, the question becomes, what additional cannabis business locations, if any, will be available to Phase 3 LA City marijuana business applicants.  Of course, without a local license, marijuana businesses are precluded from applying for a California state cannabis license.

While most people familiar with the regulation of cannabis businesses are accustomed to zoning limitations and proximity to sensitive use regulations, the City of Los Angeles codified another marijuana regulation that will ultimately limit the number of LA cannabis businesses regardless of zoning or proximity restrictions – Undue Concentration.

Simply put, a Phase 3 marijuana business applicant may comply with all Los Angeles land use and zoning restrictions, but not receive a permit based on Undue Concentration of a particular type of marijuana license in a specific LA Community Plan area.  See the City provided Los Angeles Cannabis License Capacity list of maximum number of cannabis businesses per type including retail, microbusiness, cultivation, and manufacturing.

The City of Los Angeles states that this is a “Soft Cap”; however, an applicant for a cannabis business permit located in an area of Undue Concentration must request the LA City Council find that approval of the cannabis license application would serve public convenience or necessity.

Los Angeles is the largest US City in the United States to legalize recreational use cannabis businesses, but it remains to be seen how that legalization will progress.

Contact us to learn more about California state or local cannabis regulations, cannabis regulatory compliance, and cannabis litigation.