The California Cannabis Countdown: The City of Emeryville

Emeryville cannabis laws

California has a long and complicated history with cannabis. In 1996, California voters made it the first U.S. state to legalize medical marijuana, and in 2003, the state expanded the right to collectives and cooperatives. But until recently the “Wild West” of U.S. cannabis lacked robust statewide regulations which left California cannabis companies subject to unclear rules and risk of federal shutdowns. We finally got these regulations through the Medical Marijuana Regulation and Safety Act that took effect on January 1, 2016 (more here). However, the state ultimately left control in the hands of local cities and counties (more here). At last count, California has 58 counties and 482 incorporated cities across the state, each with the option to create its own rules or ban marijuana altogether. In this “California Countdown” series, we will be writing on who is banning, who is waiting, and who is embracing the change to legalize marijuana — permits, regulations, taxes and all. For each city and county, we’ll discuss its location, its history with cannabis, its current laws, and its proposed laws, all to give you a clearer picture of where to locate your cannabis business within California, how to keep it legal, and what you will and won’t be allowed to do.

Welcome to the California countdown.

Emeryville is one of the newest California cities to consider ordinances allowing for medical marijuana businesses to operate within its boundaries. This marks a reversal for the city, which up until now prohibited all medical marijuana activities. Comments made by city council members during their March 15th meeting were largely in support of the proposed ordinances and were based on several factors including access for patients and the potential for local tax revenue. By next month, Emeryville residents could be receiving deliveries of medical marijuana directly to their homes.

Location. The city of Emeryville is located in Northern California, specifically within Alameda County and between the cities of Berkeley and Oakland. It is home to Pixar, Peet’s, Jamba Juice, and several biotech and software companies.

History with Cannabis. On August 17, 2006, Emeryville adopted a complete ban (Ordinance No. 06-007) of all medical marijuana activities within the city including dispensaries and both personal and commercial cultivation. At the time, the ban did not clearly cover delivery services.

On January 19, 2016, following the enactment of California’s Medical Marijuana Regulation and Safety Act (MMRSA), Emeryville adopted an urgency ordinance (Ordinance No. 16-001) to explicitly prohibit the delivery of medical marijuana within the city. At the same time, the city introduced an ordinance (Ordinance No. 16-002) to repeal and replace its existing regulations to more closely resemble the MMRSA. During that meeting, the City Council requested a study session to determine whether it should reconsider its complete ban on medical marijuana.

Current Law. Currently, all activities related to medical marijuana are stilled prohibited in Emeryville. Following the amendment to include delivery services, Section 5-28.04 of the city’s Municipal Code states:

“Marijuana cultivation, marijuana processing, marijuana distribution, which includes delivery as defined in Business and Professions Code Section 19300.5(m), and marijuana dispensaries shall be prohibited activities in the City, and no person shall conduct or engage in said activities, except where the City is preempted by Federal or State law from enacting a prohibition on any such activity or prohibiting a person from conducting or engaging in any such activity.”

Thus, Emeryville does not have any permitted dispensaries, cultivators, or delivery services operating within the city.

Proposed Law. On March 15, 2016, the Emeryville City Council met and discussed the findings of the study session requested in its January meeting. In the corresponding memorandum, the City Attorney reviewed the regulations of neighboring jurisdictions and the provisions of the MMRSA, and asked the City Council for direction on the following questions (which provide valuable insight into the issues California cities and counties are concerned about as they consider how to regulate medical marijuana businesses):

  1. Commercial Cultivation:
    • Should the City allow for commercial medical marijuana cultivation?
    • If yes, should commercial medical marijuana cultivation be allowed at the maximum size under state law?
  2. Limited Cultivation:
    • Should medical marijuana cultivation by a qualified patient or his or her primary caregiver be allowed as an incidental use to a residential use?
    • If yes, should limited medical marijuana cultivation be allowed by right or subject to a permit, e.g., an administrative permit?
  3. Recreational Marijuana: If recreational marijuana use becomes legal under state law, does the City Council want to consider allowing for commercial cultivation for recreational marijuana?
  4. For each business, distributor, manufacturer or testing, should the City allow for the business as it relates to medical marijuana?
  5. For each business, distributor, manufacturer or testing, should the City allow for the business as it relates to recreational marijuana?
  6. Brick and Mortar Medical Marijuana Dispensaries: should medical marijuana dispensaries be allowed?
    • If no, should medical marijuana dispensaries located outside of the City be allowed to deliver within the City?
    • If yes, how does the City Council envision the character of a medical marijuana dispensary, e.g., clinic vs. wellness center or both?
    • If yes, should the medical marijuana dispensary be allowed to deliver within the City?
  7. Mobile Medical Marijuana Dispensaries: should medical marijuana dispensaries that provide delivery-only service to patients be allowed within the City?
  8. Recreational Marijuana Dispensaries: If recreational marijuana becomes legal under state law, should the City allow for recreational marijuana dispensaries?
  9. Is the City Council interested in pursuing a specific business tax on medical marijuana, and on recreational marijuana, if recreational marijuana becomes legal under state law?
  10. Should the smoke and / or vapor from medical marijuana be regulated differently than the smoke of tobacco and other products?
  11. Should the smoke and/or vapor from recreational marijuana be regulated differently than the smoke of tobacco and other products?
  12. If yes to either question above, should smoking and/or vaping of marijuana in multi-unit residential buildings be regulated differently from smoking in single family houses?

In response, the council requested an urgency ordinance to immediately legalize deliveries of medical marijuana. The ordinance would not allow for marijuana delivery companies to be headquartered within city limits at this time, but instead provides clarification to existing delivery services in nearby cities and counties that they are authorized to deliver medical marijuana to patients in Emeryville. Council Member Davis expressed concern that delivery services have refused to deliver to Emeryville due to lack of clarity and that as a result patients are suffering. The request for an urgency ordinance was approved unanimously and could be effective as of the next council meeting, which takes place in less than a month on April 19th.

The council also discussed issuing a permit for a single medical marijuana dispensary to serve its population of roughly 10,000 people.  (The City Attorney’s memo noted that a proposed optimal ratio is one dispensary for every 10,000 in population.) They asked for more details on possible locations for the dispensary such that it could be converted to a recreational marijuana business at a later time. Finally, the council decided that it would keep its prohibition against marijuana cultivation, citing to space constraints, but is considering regulations to allow for marijuana labs which could make Emeryville a cannabis laboratory hub, in line with its existing biotech industry.

We’ll be waiting to hear the council’s thoughts on April 19th as Emeryville could soon be home to one lucky dispensary and multiple cannabis labs.  For now, medical marijuana delivery services in neighboring areas should take note that Emeryville may be open for cannabis business in the very near future.