The Trump Administration has indicated it intends to crack down on states that allow recreational marijuana.  As reported in the Sacramento Bee on February 23, 2017, Trump Administration Press Secretary Sean Spicer has threatened “greater enforcement” of federal law on this subject.  It’s not yet clear what, when, or how such enforcement will occur.  Spicer noted only those matters are things “the Department of Justice will be further looking into.”

For California cities and counties, this announcement comes at a pivotal time.  With the passage of Proposition 64 in November 2016, marijuana may now lawfully be used, within certain limits, for recreational use.  Many cities and counties have been considering, or plan to consider, new or amended ordinances in light of this fundamental change in law.  Generally, Proposition 64 allows local agencies to enact ordinances that:

  • Regulate (or ban) outdoor marijuana cultivation;
  • Regulate indoor marijuana cultivation;
  • Regulate (or ban) retail marijuana establishments; and
  • Regulate (or ban) door-to-door deliveries within municipal limits.

(For a more thorough summary of what cities and counties can do in light of Proposition 64, see our Daily Journal article or the League of California Cities resource pages here and here.)

After Proposition 215 was enacted concerning the use of marijuana for medical purposes—and especially after state implementing legislation was enacted in 2003—many cities and counties enacted outright bans on marijuana dispensaries and cultivation.  While a number of agencies have enacted similar bans on commercial marijuana cultivation and establishments in light of Proposition 64, many expect cities and counties to take a more lenient approach concerning recreational marijuana uses.  Because of the regulatory apparatuses Proposition 64 provides, coupled with a comprehensive regulatory scheme the Legislature enacted in 2015, the thinking is that local agencies now have better tools to get control of the problems that led to the earlier bans.

In light of the Trump Administration’s statements, cities and counties may now have to rethink this position. It is not clear yet how aggressively the Administration will pursue states that allow recreational marijuana usage.  And more importantly for cities and counties, it’s not clear what enforcement, if any, the federal government would pursue against local governments within those states that choose to regulate marijuana as a means of land use control.  Press Secretary Spicer’s statement today indicates only that some Department of Justice guidance may be forthcoming.

At this stage, cities and counties should monitor this situation closely.   In years past, the federal government had threatened to prosecute cities that allow and tax marijuana establishments.  Technically, the California Government Code also prohibits cities from enacting laws contrary to federal law, which still makes all possession, transactions, and cultivation of marijuana felonies.  There is no reason to believe at this point that cities and counties that wish to regulate, rather than ban, recreational marijuana uses will entirely lose the right to do so.  But it could very well be that the Administration would seek to limit the types of regulations that could be adopted, especially if agencies wish to impose marijuana taxes intended to raise revenue.

This is definitely a situation to watch.