Applicants who qualify for commercial cannabis licensure during Phase II of the City of L.A.’s cannabis licensing process only have until September 13 to get their applications into the Department of Cannabis Regulation (“DCR”). This phase of licensing is reserved for existing, non-retail, social equity applicants. To get a license during this phase, the DCR requires proof of operation in the City prior to January 1, 2016, proof of service to an “Existing Medical Marijuana Dispensary” prior to January 1, 2017, and proof of eligibility as a Tier 1, 2, or 3 social equity applicant. For more on Phase II eligibility, see here and here.
I wrote earlier this month about the unusual business relationships our L.A. cannabis business lawyers are seeing born out of social equity in L.A. It’s pretty clear that lots of applicants will go for Tier 3 social equity status (i.e., where a Tier 3 incubates a Tier 1 or 2 social equity applicant). In that situation, the Tier 3 social equity applicant has to sign a social equity agreement with the City, but little to no detail on the content of that agreement exists in the law. In addition, licensees would be extremely unwise not to maintain social equity business agreements between themselves in order to ensure mutual performance and compliance. In turn, this post is dedicated to covering the details that should be included in social equity agreements between licensees:
- Mandatory Assistance.
- Capital. Under L.A. cannabis laws and regulations, Tier 3 social equity applicants must provide “capital . . . to Persons who meet the criteria to be a Tier 1 Social Equity Applicant. . .” L.A. does not mandate a minimum capital allocation. In turn, it is extremely important to specifically define in the private social equity agreement the amount of money and how often it will be paid to the Tier 1 social equity applicant. The contract should also address what occurs between the parties in the event the City mandates a higher amount to be paid from the Tier 3 to the Tier 1. This mandatory financing will also render the Tier 3 a “financial interest holder” of the Tier 1 under state law, so the disclosure process to the state of that fact should be addressed in the parties’ agreement.
- Leased Space. Tier 3s also have to provide certain amounts of leased space, rent-free as well as prorated utilities to Tier 1s. The amount of space the Tier 3 must secure for the Tier 1 is dictated by license and type and size as set by LA law. Current state law prohibits licensees from subleasing to each other (and state law dictates that only one license per “premises” is allowed), so any solid private social equity agreement will address the fact that the Tier 1 has to have its own lease for its own premises where the Tier 3 will pick up the rent and ensure prorated utilities. This situation opens all kinds of contingencies relative to the Tier 1 lease regarding default in rent payments by the Tier 3, indemnities, ongoing compliance with state and local laws by the Tier 1, and the list goes on and on. Additionally, if any build out or code compliance is necessary for the space, the question of who bears that cost and for how long and/or who has creative control over the process should also be negotiated.
- Business, Licensing and Compliance Assistance. A Tier 3 must also provide to both Tier 1s and 2s “business, licensing, and compliance assistance.” These terms are not defined by LA, so their meaning is currently up to the licensees and should be clearly defined in the private social equity agreement. For example, will the Tier 3 undertake the entire application process or just a portion of it on behalf of the Tier 1 or 2? Will the Tier 3 cover all licensing expenses on the state and local level? Will the Tier 3 allocate a certain amount of hours per week or month to ensure that the Tier 1 or 2 is in full compliance with both state and local law?
- There is no State Social Equity Program; Loss of Licensure. Where there is no state social equity program, the Tier 1 or 2 will still be personally responsible for compliance with MAUCRSA at all times. In turn, the parties need to discuss and agree on what will happen if the Tier 1 or 3 violates MAUCRSA in a way that jeopardizes the standing of their licenses. The same goes for material defaults of L.A. law and regulations.
- Social Equity Restrictions. Under L.A.’s social equity laws, a social equity applicant can’t really behave like a normal business. There are a slew of situations in which, before acting, the social equity applicant has to check in with the DCR. As a result, the private social equity agreement should force the Tier 1 or 2 into constant compliance with specific social equity reporting and vetting as required by local laws.
- Relationship of the Parties. Like any contract ever, the parties should be clear that their social equity relationship doesn’t otherwise create any partnership, joint venture, or agency relationship where one party can bind or create liabilities on behalf of the other.
- Term; Termination. The City of LA mandates that a Tier 3 “incubate” a Tier 1 or 2 for no less than a term of three years. On grounds for termination, the parties should contemplate a mutually beneficial code of conduct that goes to compliance with LA and state laws and regulations as well as maintaining respective social equity status.
- Taxes. Despite their local social equity relationship, each license is still responsible for the remittance of cultivation and/or excise taxes to the California Department of Tax and Fee Administration. Any contractual code of conduct between social equity applicants should make clear that each licensee bears the burden of tracking and paying its own taxes.
- Disputes. There are likely going to be many legal disputes between Tier 3s and their Tier 1 and/or 2 incubees. For one reason or another, it’s likely that either licenses won’t issue, construction will be stalled, and/or their will be material breaches to the detriment of either or both parties. We’ve already seen this occur in the Oakland social equity program. Therefore, Tier 3 social equity situations call for a clear protocol of what to do in the event of disputes. For more on the cannabis corporate disputes we’re seeing, see here.
Even though social equity is fairly heavily regulated in L.A., government cannot cover all the business details between parties (nor should it). That’s where a well thought out, written agreement becomes incredibly important in order to curb risk and get the parties in line for success or for a more orderly break-up in the event that things don’t work out.