How California Senate Bill 1186 Will Expand Medical Delivery Statewide
by Omar Figueroa and Lauren Mendelsohn
February 15, 2023
A new law in California named the Medicinal Cannabis Patients’ Right of Access Act, in effect now with key provisions which become operative on January 1, 2024, will require cities and counties across the state to regulate medical delivery-only retailers or face lawsuits. Significantly, Senate Bill 1186 will forbid local prohibitions on medical delivery-only retailers, and will allow medical delivery-only retailers to operate from local jurisdictions that currently prohibit medical delivery. (Note: this is a different issue than the issue of cities seeking to invalidate state regulations allowing delivery of cannabis to homes in local jurisdictions that ban commercial cannabis activity, which was litigated in a lawsuit dismissed in late 2020.)
Senate Bill 1186, authored by Senator Scott Wiener, prohibits local jurisdictions across California from banning medical cannabis delivery businesses starting in 2024. According to the digest prepared by the Legislative Counsel:
This bill would enact the Medicinal Cannabis Patients’ Right of Access Act, which, on and after January 1, 2024, would prohibit a local jurisdiction from adopting or enforcing any regulation that prohibits the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers by medicinal cannabis businesses, as defined, or that has the effect of prohibiting the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers in a timely and readily accessible manner and in types and quantities that are sufficient to meet demand from medicinal cannabis patients within the local jurisdiction, as specified. The bill, on and after January 1, 2024, would provide that the act may be enforced by an action for writ of mandate brought by a medicinal cannabis patient or their primary caregiver, a medicinal cannabis business, the Attorney General, or any other party otherwise authorized by law.
As discussed in our previous blog post on Senate Bill 1186, a previous version of the proposed law would have granted delivery bans a seal of approval under state law, and would have empowered cities and counties to “limit the sale of medicinal cannabis to storefront retail sale only at one or more licensed retail sale premises within the local jurisdiction.”
This proposal was rejected, and local jurisdictions cannot limit the sale of medicinal cannabis to storefront retail sale only but must allow delivery only medical cannabis retailers to operate from the local jurisdiction.
The new law, the Medicinal Cannabis Patients’ Right of Access Act, has been codified by adding Chapter 26 to Division 10 of the Business and Professions Code.
Specifically, starting on January 1, 2024, SB 1186 unequivocally prohibits local jurisdictions from banning medical cannabis retail delivery businesses:
(a) A local jurisdiction shall not adopt or enforce any regulation that prohibits the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers, or that otherwise has the effect of prohibiting the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers by licensed medicinal cannabis businesses in a timely and readily accessible manner, and in types and quantities that are sufficient to meet demand from medicinal cannabis patients within the local jurisdiction, including, but not limited to, regulation of any of the following that has the effect of prohibiting the retail sale by delivery of medicinal cannabis:
(1) The number of medicinal cannabis businesses authorized to deliver medicinal cannabis in the local jurisdiction.
(2) The operating hours of medicinal cannabis businesses.
(3) The number or frequency of sales by delivery of medicinal cannabis.
(4) The types or quantities of medicinal cannabis authorized to be sold by delivery.
(5) The establishment of physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted by a licensed nonstorefront retailer, except that this paragraph shall not be construed to require the establishment of additional physical premises in a local jurisdiction that allowed medicinal cannabis retail as of January 1, 2022, and in which at least one physical premises engaged in the retail sale of medicinal cannabis, whether storefront or delivery, is already established.
(b) Nothing in this chapter shall be construed to prohibit the adoption or enforcement of reasonable regulations on retail sale by delivery of medicinal cannabis, including, but not limited to, reasonable regulations related to:
(1) Zoning requirements that are not inconsistent with subdivision (a). If compliance with subdivision (a) would otherwise require a local jurisdiction to authorize a physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted, this paragraph shall not be construed to alter that requirement.
(2) Security or public health and safety requirements.
(3) Licensing requirements.
(4) The imposition, collection, and remittance of any applicable state or local taxes upon retail sales occurring within the local jurisdiction.
(5) Regulations consistent with requirements or restrictions imposed on cannabis businesses by this division or regulations issued under this division.
(c) Nothing in this chapter shall be construed to limit or otherwise affect the ability of a local jurisdiction to adopt or enforce any regulations on commercial cannabis operations other than retail sale by delivery of medicinal cannabis in the local jurisdiction.
(d) This section shall become operative on January 1, 2024.
(1) A medicinal cannabis patient or their primary caregiver who seeks to purchase medicinal cannabis or medicinal cannabis products within the local jurisdiction.
(2) A medicinal cannabis business that seeks to offer medicinal cannabis for sale within the local jurisdiction.
The law may also be enforced via an action brought by the Attorney General, or by any party otherwise authorized by law. §26323(a)(3)-(4). Keep your eye on Senate Bill 1186, as it will alter the regulatory landscape across California and turn medical cannabis deserts into green oases.
According to the California Department of Cannabis Control, as of February 2023, 56% of all cities and counties across the state prohibit all cannabis business types, including medical delivery:
The Medicinal Cannabis Patients’ Right of Access Act presents an opportunity to the 56% of California municipalities that continue to prohibit medical cannabis deliveries originating from their local jurisdiction: enact reasonable regulations for medical cannabis delivery businesses at the local level by the end of December 2023, or face lawsuits by medical cannabis patients, caregivers, and businesses starting on January 1, 2024.
On a related note, the Department of Cannabis Control announced a new grant opportunity for cities and counties to expand access licensed retail facilities; information about the Local Jurisdiction Retail Access Grant program can be found here. This program is intended to support local governments in establishing cannabis retail licensing programs:
This grant program aims to provide consumers with reliable access to regulated, tested cannabis in the legal market, and reduce demand in the illicit market. By supporting local governments in establishing cannabis retail licensing programs, this grant also seeks to reduce the size of the illicit market and establish sufficient cannabis retail stores statewide to meet existing consumer demand.
We will discuss the Local Jurisdiction Retail Access Grant program in more detail in a subsequent post soon.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding the Medicinal Cannabis Patients’ Right of Access Act or other cannabis-related laws, please contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.
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