Friday, February 8, 2019
Page 3
Court of Appeal:
County May Ban Cannabis Businesses Without Voter Assent
Opinion Says Contrary Language in the Explanation of the 2016 Marijuana Legalization Initiative In the Statewide Voter Information Guide Cannot Be Given Effect Because It Is Erroneous
By a MetNews Staff Writer
The Fourth District Court of Appeal has decided to give no effect to the advisement in the 2016 Voter Information Guide that a purpose of Proposition 64—which the electorate approved—was “to ban marijuana businesses by a vote of the people within a locality.”
Appellants invoked that language in challenging a preliminary injunction obtained by the County of Riverside pursuant to an ordinance banning the sale of cannabis in unincorporated areas. The ordinance contravenes Proposition 64, they argued, because it was not enacted “by a vote of the people.”
Justice Marsha G. Slough of Div. Two said in an unpublished opinion, filed Wednesday:
“The problem with appellants’ argument is the prefatory remarks, or any language requiring voter approval of local bans, does not appear in the relevant statute Proposition 64 enacted (and Sen. Bill No. 94 later amended).”
Statute Authorizes Prohibition
She pointed out that Proposition 64—the California Marijuana Legalization Initiative—spawned Business & Professions Code §26000 which specifies that a locality may “completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction.”
Slough remarked:
“That provision plainly gives Riverside the authority to enact an ordinance...completely banning cannabis dispensaries, medical or otherwise.”
The appellants maintained that the language in the Voter Information Guide evidences the intent of the measure, which should take precedence over the statutory language.
“Established principles say otherwise,” Slough wrote. “Only when the statutory language is ambiguous do we look to the uncodified preamble of a ballot initiative, and we certainly may not rely on the latter to contradict the former.”
Proposed Distinction Rejected
The would-be cannabis sellers argued that the reference in §26000 to localities being allowed to “prohibit” marijuana businesses connotes something less than a total “ban.” The jurist responded:
“We are unpersuaded. Prohibit and ban are synonyms, but even if they weren’t, the Legislature made its intention clear by qualifying prohibit with ‘completely.’ “
The preliminary injunction must fall, the appellants asserted, because the Board of Supervisors voted on Aug. 29,2017, to lift the ban.
“This is simply false,” Slough said.
The board instead voted, in the aftermath of the passage of Proposition 64, to maintain the existing ban “until the County adopts a comprehensive regulatory framework for medical and adult-use cannabis.”
She explained:
“In other words, Riverside has not repealed the ban, it has only indicated it may someday develop a regulatory framework that allows cannabis dispensaries to operate in the unincorporated areas of the county. But until that day comes, the ban remains in place.”
The case is County of Riverside v. Freedom Won LLC, E069294.
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