California Landlords and Legalized Use of Marijuana
Proposition 64, the California Marijuana Legalization Initiative, which passed on November 8, 2016, legalized the recreational use of marijuana in all of California. The law is codified in California Health and Safety Code Section 11362. In part the new law states that persons 21 years of age and older are legally allowed to possess, process, transport, purchase, obtain or give away (without compensation) up to 28.5 grams (appx one ounce) of non-concentrated cannabis and up to 8 grams of concentrated cannabis and possess, plant, cultivate, harvest, dry or process up to 6 living plants. Smoking was to remain illegal while driving a vehicle, anywhere smoking tobacco is, and in all public places.
Marijuana defined. “Marijuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the steilized seed of the plant which is incapable of germination” (H&SC 11018).
Cannabis and living plants may be stored within a person’s private residence, or on the private grounds of a private residence, in a locked space not visible from a public place by normal unaided vision. This includes single family residences and multi-family property.
The Bureau of Medical Cannabis Regulation was renamed the Bureau of Marijuana Control and became responsible for regulating and licensing marijuana businesses. Counties and municipalities were empowered to restrict where marijuana businesses could be located. Local governments were also allowed to completely ban the sale of marijuana from their jurisdictions.
Individuals under age 18 convicted of marijuana use or possession are required to attend drug education or a counseling program and complete community service. Selling marijuana without a license is punishable by up to six months in a county jail, a fine up to $500, or both. With Proposition 64’s approval, individuals serving criminal sentences for activities made legal under the measure became eligible for resentencing.
Proposition 64 created two new excise taxes on marijuana:
A cultivation tax of $9.25 per ounce for flowers and $2.75 per ounce for leaves, with exceptions for certain medical marijuana sales and cultivation.
A 15 percent tax on the retail price of marijuana. Taxes will be adjusted for inflation starting in 2020. Local governments were authorized to levy taxes on marijuana as well.
Medical marijuana patients keep their existing rights under Prop 215 to possess and cultivate as much as they need for personal medical use so long as they have a doctor’s recommendation, regardless of the Prop 64 limits for adult users. Beware though that local governments may still restrict cultivation via nuisance ordinances (except for the six indoor plant minimum allowed for personal use).
Consume marijuana in any public place ($100 infraction). (On-site consumption at licensed premises will be permitted at a later date.)
Smoke or vaporize marijuana in any non-smoking area or within 1,000 feet of a school, day care or youth center while children are present, except privately at a residence. ($250 fine)
Consume marijuana or possess an “open container” of marijuana while driving or riding as a passenger in any motor vehicle, boat, or airplane ($250 fine).
Possess or use marijuana on the grounds of a school, day care or youth center while children are present. ($100 fine).
Manufacture concentrated cannabis with a volatile solvent (except for state-licensed manufacturers).
Minors under 21 may not possess, use, transport, or cultivate marijuana, subject to a $100 fine for those 18 and older. Minors under 18 are subject to drug counseling or community service.
Possession of more than one ounce remains a misdemeanor punishable by $500 and/or six months in jail as at present. Other offenses, including cultivation of over six plants, transport of over an ounce, illegal sale or distribution for compensation, possession with intent to sell, etc., are downgraded from felonies to misdemeanors except in certain aggravating circumstances.
Rights NOT protected by Prop 64:
Owners may forbid the possession or use of marijuana on their property subject to normal tenant law for renters.
Employers may prohibit use of marijuana by their employees.
Many landlords have a provision in their lease that forbids their tenants from smoking in their rental unit and on the common grounds. It is a good idea to update that provision to limit or forbid the smoking and growing of marijuana on your rental property. The unintended consequences of legalizing marijuana smoking and growing are the smells, the second hand smoke, and the possibility of increased theft and the resulting property damage.