Medical Marijuana Land Use Issues: Dispensaries, Collectives, Cooperatives, Outlets & Taxes - What’s a Community to Do?
In November 1996, California voters through the ballot initiative process passed Proposition 215, the Compassionate Use Act of 1996, which decriminalized the cultivation and use of marijuana by seriously ill people upon a doctor’s recommendation, although it cannot be legally prescribed. With few exceptions, federal law under the Controlled Substances Act prohibits the use of marijuana for any purpose, and continues to classify it as a banned substance without any medicinal value. On January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act (MMP), became law and mandated all CA counties to establish and participate in the program. Among other things, MMP requires the CA Department of Public Health to establish and maintain a program for the voluntary registration of qualified medical marijuana patients and their primary caregivers through a statewide identification card system to identify that cardholders are able to cultivate, possess, and transport certain amounts of marijuana without being subject to arrest, so long as certain conditions are met. In February 2007, the California State Board of Equalization (BOE) issued a Special Notice confirming its policy of taxing medical marijuana transactions, as well as the requirement that businesses engaging in such transactions must hold a seller’s permit in order to make sales. According to the BOE notice, having a seller’s permit does not allow unlawful sales; it merely provides a way to pay any sales tax that may be due.
Although 13 states have some form medical marijuana laws, there are no State or federal guidelines on land use issues for these businesses. Under mounting political pressure to allow marijuana dispensaries and/or outlets within their municipal jurisdictions, cities and counties are struggling to find appropriate land use strategies to regulate how, when and where such new businesses can operate while balancing community concerns against real and imagined risks associated with marijuana outlets. Initial responses at the local level vacillate between two extremes: some localities quickly implemented bans or moratoriums that pushed out any dispensary businesses, while others simply required a business license. This is a very exciting area of land use that is evolving very rapidly right now.
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