Murchison & Cumming LLP

Judge Orders Municipalities to Show Standing in Order to Sue CA Bureau of Cannabis Control

August 7, 2020

By: Kelly Hayes

On Thursday, a Judge ordered a one (1) month continuance to allow 25 municipalities to provide evidence showing their issues are "ripe" against California's Bureau of Cannabis Control ("BCC"). The BCC is California's lead enforcement and licensing agency for commercial cannabis retailers, delivery services, distributors, testing laboratories, and microbusinesses.

California Superior Court Judge Rosemary McGuire wrote in her tentative ruling:

"[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy...The ripeness doctrine prevents the courts from issuing purely advisory opinions or engaging in premature adjudication of abstract disagreements...A controversy is 'ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made."

"Here, plaintiffs' challenge to California Code of Regulations, title 16 section 5416, subdivision (d) is not ripe under the two-pronged test set forth by the California Supreme Court in Pacific Legal, which calls on a court to evaluate (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration."

Last year, the County of Santa Cruz and many other jurisdictions joined together to sue California's Bureau of Cannabis Control over it's Regulation relating to the Delivery of cannabis in local jurisdictions, which provides in part that:

"A delivery employee may deliver to any jurisdiction within the State of California provided that such delivery is conducted in compliance with all delivery provisions of this division." [16 CCR § 5416(d) emphasis added].

The municipalities argued that Section 5416(d) impinges on their rights to local control, which was granted to them by voter initiative Proposition 64, and "per se damages California localities, both as to any present conflicting or inconsistent ordinance and as to any future ordinance, presently contemplated or not."

Yesterday, Judge Rosemary McGuire disagreed with Plaintiff's arguments.

"Accordingly, the parties are ordered to brief the issue of ripeness with regard to each and every plaintiff and to submit such briefing according to the schedule...Plaintiffs that do not have standing are invited to withdraw. Plaintiffs that allege standing must submit evidence to show that they have an ordinance in place which is contrary to California Code of Regulations, title 16 section 5416, subdivision (d). Plaintiffs must also point to the exact place in record where the evidence is located (e.g., volume, page number, line number). Plaintiffs who cannot establish standing will be dismissed."

The 25 Jurisdictions listed as Plaintiff's include: County of Santa Cruz, City of Agoura Hills, City of Angels Camp, City of Arcadia, City of Atwater, City of Beverly Hills, City of Ceres, City of Clovis, City of Covina, City of Dixon, City of Downey, City of McFarland, City of Newman, City of Oakdale, City of Palmdale, City of Patterson, City of Riverbank, City of Riverside, City of San Pablo, City of Sonora, City of Tehachapi, City of Temecula, City of Tracy, City of Turlock, and the City of Vacaville. Email Kelly Hayes for more information or any other questions.

 

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