No Weed On Wheels In Los Angeles, Rules California State Appellate Court

Unfortunately, cannabis deliveries in Los Angeles are just not allowed -- at least for now.

Hilary Bricken

Hilary Bricken

Last week, a California Court of Appeals upheld a preliminary injunction granted more than a year ago against cannabis delivery app Nestdrop. The injunction prohibits Nestdrop from facilitating marijuana deliveries in Los Angeles. For more on L.A.’s medical marijuana dispensary regulations, see here.

I have been following the crackdown on Uber-like medical marijuana delivery services in California primarily because there is so much interest from tech entrepreneurs in developing and providing these types of services. Unfortunately, cannabis deliveries in Los Angeles are just not allowed — at least for now.

A couple of weeks ago, my firm wrote about the lawsuit filed by the City of Los Angeles against another marijuana delivery service, Cosmic Mind (a/k/a SpeedWeed), and we at that time reminded everyone that the City’s position against marijuana deliveries had not changed. Now the City has a California Appellate Court decision in its back pocket to justify its continued crackdown under its local marijuana law, Proposition D.

Breaking down the Court’s decision is straightforward. The Court agreed with the City’s argument that Proposition D, under which medical marijuana businesses must qualify for limited immunity to operate legally, contemplated that only fixed establishments, not vehicles, would be able to assert that immunity. The Court broke down the construction of the ordinance, and noted incongruities that would arise if the city were to allow medical marijuana delivery. For instance, it would be impossible for a vehicle navigating the city to abide by the requirement that medical marijuana businesses must be located more than 1,000 feet from schools, and more than 600 feet from public parks, public libraries, religious institutions, child care facilities, youth centers, alcoholism or drug abuse recovery or treatment facilities, or any other medical marijuana businesses. And further, under the ordinance, the distance between medical marijuana businesses is to be measured property line to property line, an example of one of many provisions in the ordinance that indicates delivery services were never intended to receive immunity.

But the intriguing argument made by Nestdrop’s attorneys that the California Vehicle Code preempts Proposition D was not fully fleshed out by the Court in its published opinion. Though the Appellate Court did not review this preemption issue because Nestdrop failed to raise it before the trial judge, it gifted us a bit of dicta letting us know that it would have rejected this argument had it actually dealt with it.

Vehicle Code section 21 states that “a local authority shall not enact or enforce any ordinance or resolution on the matters covered by this code, including ordinances or resolutions that establish regulations or procedures for, or assess a fine, penalty, assessment, or fee for a violation of, matters covered by this code, unless expressly authorized by this code.”

Sponsored

Nestdrop’s argument was that this code provision preempted Proposition D to the extent that the City ordinance prohibited vehicular deliveries. The Court rejected this argument, without going into much detail, because the Vehicle Code, which does not address medical marijuana or deliveries of medical marijuana, creates no conflict between state and local law. Further, the Health and Safety Code explicitly grants local governments the right to use their police powers to regulate or ban medical marijuana establishments.

Ultimately, the Court found that the City of Los Angeles met its burden of establishing a likelihood of proving Nestdrop violated Proposition D, which does in fact prohibit the delivery of medical marijuana. The Court’s affirmation that immunity for marijuana establishments is tied to a particular location could have broad sweeping implications for other types of events where medical marijuana is distributed and consumed. With the City Attorney stating that the City has thus far filed 365 cases against 1,444 defendants related to medical marijuana, keeping tabs on the City’s enforcement priorities is critical for LA-area MMJ stakeholders and qualified patients, alike.


Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

Sponsored