Federal Lawsuit Seeks to Halt Kern County Closure of Medical Cannabis Dispensaries
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Federal Lawsuit Seeks to Halt Kern County Closure of Medical Cannabis Dispensaries

Dispensary owners are hoping to beat a May 24 deadline to shut down.

April 23, 2019

Years of political infighting and legislative end-arounds have come to a boil in a federal lawsuit filed against Kern County in southern California.

In late January, a group of medical cannabis dispensary owners filed a lengthy civil complaint against Kern County public officials, alleging violations of constitutional rights to due process in the local business licensing regime. The named plaintiffs include Green Cross of North Bakersfield, owned by David Abassi; Big O Relief; Tanner-Vest Inc.; and a contingent of unnamed dispensary owners known as Citizens Against Corruption.

Read the full lawsuit below.

The county has stated that it will allow the 29 dispensaries operating within its jurisdiction to remain open until May 24 in order to recoup business costs before they must shutter or fall into local compliance and obtain a state license to remain open. Several dispensaries have directly appealed the decision and requested an extension until November 2019. All appeals have been denied by Kern County officials.

So far, Kern County has only issued local dispensary permits to three medical cannabis retail businesses. The local permit is a prerequisite to earning a state license. The process behind the local permitting scheme in Kern County is one point of contention in the federal lawsuit.

“Basically, the stay motion is asking the federal court judge to stop the county from shutting down dispensaries,” Abassi told Cannabis Dispensary. “[County officials] deny or selectively authorize people, or they stonewall and they don't let people get their permit. … When it comes to getting up to code or compliance and getting the permit, it's not going to happen. If you don't get the building permit, you can't move forward [with the state]. That's how they're doing it. They've weaponized code enforcement.”

Kern County is a broad expanse of land north of Los Angeles, which dips into the Mojave Desert and the San Joaquin Valley. The county seat, Bakersfield, boasts a population of 380,000, rising each year. But while the local economy is rooted largely in agricultural and energy production sectors, county supervisors have worked to keep cannabis businesses sidelined.

According to Cannabiz Media, most of Kern County’s cannabis businesses are found in California City. The unincorporated areas of the county, over which the Kern County Board of Supervisors presides, include several permitted cultivators, distributors and manufacturers.

Medical cannabis dispensaries, however, have been stuck in the gray area first brought to being by the 1996 Compassionate Use Act in California. In the county’s view, no local regulatory scheme has been approved; thus, those dispensaries remain unlicensed in the current post-Prop. 64 industry. (The county has never allowed adult-use dispensaries to operate.)

In the Citizens Against Corruption lawsuit, dispensary owners paint a picture of animosity that dates back more than a decade. In 2006, following years of a hands-off approach to the Compassionate Use Act’s business landscape, Kern County began overtly allowing medical cannabis dispensaries to operate.

Since then, the local cannabis economy has become complicated.

In 2010, the county placed a moratorium on any “new” medical cannabis dispensaries. Through subsequent legislation, the county further restricted zoning policy and eventually attempted to ban medical cannabis dispensaries outright. Voters pushed back via protest petition, and the county did not implement its ban.

In 2012, county officials repealed all previous medical cannabis legislation and put to voters a referendum known as Measure G, which allowed medical marijuana dispensaries only in industrially zoned areas of the county. The measure passed.

The Fifth District Court of Appeal later determined that the county had violated state elections code by repealing its earlier medical cannabis dispensary ordinance and putting a restrictive referendum before voters—a referendum that attempted to circumvent the will of the voters. The measure was invalidated.

The court ruled that Kern County “must not take additional action that has the practical effect of implementing the essential feature of the protested ordinance.” The protest petition had been aimed squarely at the attempted ban of medical marijuana dispensaries in 2010.

In essence, the appeals court stated that Kern County’s public officials may not try to ban medical cannabis industry operations again.

Nevertheless, a moratorium on new dispensaries has persisted. No dispensary has been allowed to open and operate since May 10, 2016, when county supervisors approved an ordinance that finally and formally enshrined a moratorium on new medical cannabis dispensaries. Those dispensaries grandfathered into operation are now facing an extinction event: The deadline to close up shop is set for May 24 of this year.

Kern County officials, according to legal filings, argue that the subsequent passage of Prop. 64 and the implementation of the Medicinal and Adult-Use Cannabis Regulation and Safety Act constituted a “change in the law,” which allowed the county to revisit its ban on medical cannabis sales.

District Judge Anthony Ishii will hold a hearing May 6 on the plaintiffs’ request to halt Kern County’s May 24 timeline to shutter local medical cannabis dispensaries.

Citizens Against Corruption et al v. Kern County et al by sandydocs on Scribd