Marijuana preemption conflicts between state and local governments

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Last updated: September 2, 2021

Ballotpedia covers preemption conflicts between state and local governments in several policy areas. Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. This page summarizes preemption conflicts over marijuana policy. To learn more about other preemption conflicts, click here.

Different takes on how best to balance public health, public safety, and economic concerns have prompted disagreements about marijuana legalization between city officials, state officials, and activists. Proponents of legalization say legalization generates revenue, facilitates safer marijuana use, and reduces strain on the justice system. Opponents cite public health and safety concerns, both for the user and for others due to secondhand smoke and driving under the influence.

As of May 2021, the use of marijuana for medicinal purposes had been legalized or decriminalized by state law in 36 states and Washington D.C. The use of state and local ballot measures to pursue marijuana legalization has sometimes prompted conflicts between activists and public officials.

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Marijuana preemption conflicts overview
Year	State	Summary
2021	Massachusetts	Massachusetts Supreme Court ruled that local bylaws requiring marijuana dispensaries to operate as nonprofits were preempted by state statute.
2019	California	Twenty-four cities sued the California Bureau of Cannabis Control arguing that a state policy on home delivery of marijuana violated state law, which allowed localities to ban marijuana establishments within their borders. The case was dismissed after the court found the local ordinance was not in violation of state regulations.
2019	California	California filed to join a lawsuit against Santa Cruz county seeking to prevent the county from enforcing an ordinance on marijuana delivery.
2018	California	Berkeley City Council voted to enact a marijuana sanctuary policy, which would bar city agencies and employees from assisting with the enforcement of federal marijuana law.
2017	Florida	A bill was passed legalizing and regulating medical marijuana in the state, preempting efforts by county governments to enact their own medical marijuana regulations.
2017	Tennessee	The state passed a law preempting ordinances to decriminalize marijuana in Nashville and Memphis.
2016	Kansas	The Kansas Supreme Court overturned a Wichita ballot measure that would have decriminalized the possession of marijuana.

2021

Massachusetts: State supreme court rules municipal bylaws preempted by state statute

In 2016, Ellen Rosenfeld sought a permit to open a nonprofit medical marijuana dispensary in Mansfield, Massachusetts. At the time, both Massachusetts law and Mansfield ordinances required dispensaries to operate as nonprofits. Rosenfeld's dispensary was, at the time, a nonprofit entity. In 2017 state law changed to allow dispensaries to operate as for-profit entities, and Rosenfeld converted her business into a for-profit business in 2018. The case was heard on May 3, 2021, and on August 30, 2021, the Massachusetts Supreme Court ruled that previously enacted bylaws permitting only nonprofit entities to operate medical marijuana dispensaries were preempted by a statutory decision eliminating the restriction.

To read the full case, click here.

2019

California: Cities sue state, state seeks to join lawsuit against county

Two lawsuits were filed in California in 2019 related to state and local policy on home delivery of marijuana.

Bureau of Cannabis Control says local marijuana ordinances adhere to state regulation, lawsuit against state dismissed

Twenty-four cities sued the California Bureau of Cannabis Control in April 2019 arguing that a state policy on home delivery of marijuana violated Proposition 64, which legalized recreational marijuana in the state and allowed localities to ban marijuana establishments within their borders.

The California Bureau of Cannabis Control adopted a regulation in January 2019 allowing firms licensed by the state to deliver marijuana in cities that banned marijuana establishments.

Covina City Councilman Walter Allen III said, "The problem we have is the state has taken it upon itself to bypass Proposition 64 and supersede our local ordinances, and we are really upset about that."

California Cannabis Industry Assn. spokesman Josh Drayton said, "By taking away many state consumers’ only legal way to purchase product, jurisdictions would not only miss out on beneficial local tax revenues, but would drive down state revenue by forcing consumers into the illicit market."

A trial date was set for April 20, 2020. On November 18, Judge Rosemary McGuire dismissed the case, writing:

“

With judicial estoppel principles in mind, the court wishes to make clear that it is persuaded by, agrees with and adopts the BCC’s [California Bureau of Cannabis Control's] argument that Regulation 5416(d) is not inconsistent with and does not preempt plaintiffs’ local ordinances regarding adult-use cannabis delivery, nor does it preclude plaintiffs from enforcing such ordinances. On the basis of that conclusion, the court finds that this matter is not ripe for adjudication, and dismisses the action as to all plaintiffs.

”

California seeks to join lawsuit against Santa Cruz County

Retailer East of Eden filed a lawsuit against Santa Cruz County in July 2019 seeking to prevent the county from enforcing an ordinance prohibiting marijuana deliveries from companies it hasn't locally licensed. In November, Attorney General Xavier Becerra (D) filed a motion for the state to join the suit.

Becerra wrote in a proposed complaint that the state's delivery regulation "is critical to the state’s commercial cannabis market and valid."

Santa Cruz County spokesman Jason Hoppin said that "the state promised the people of California local control over the time, place and manner of local cannabis operations. ... The state is now lending the power of the attorney’s general office to a business seeking to break that promise."

2018

California: Berkeley enacts marijuana sanctuary policy

The Berkeley City Council voted unanimously on February 13, 2018, to declare the city a marijuana sanctuary city. The term sanctuary city is typically used to describe cities that have enacted policies limiting local officials' involvement in the enforcement of federal immigration law. The Berkeley council adapted the term to describe its decision to bar city agencies and employees from assisting with the enforcement of federal marijuana law.

"I believe we can balance public safety and resisting the Trump administration," Mayor Jesse Arreguin said at the council's February 13 meeting. "We’re keeping with the strong position Berkeley is a sanctuary for people in our community."

2017

Florida: State preempts local regulation of medical marijuana dispensaries

On June 23, 2017, Gov. Rick Scott (R) signed a law implementing a 2016 constitutional amendment that legalized medical marijuana in the state. The law set the number of state-authorized marijuana growers at 17 and the number of dispensaries each grower could have at 25. It also banned marijuana smoking, permitting only edibles and other non-smokable forms of the drug, and prohibited localities from imposing stricter limits on the locations of marijuana dispensaries than on the locations of pharmacies.

The law preempted efforts by county governments to enact their own medical marijuana regulations. Pasco County had capped the number of county marijuana dispensaries and set limits on the districts in which they could operate in February 2017, and Hillsborough County approved dispensary caps in June 2017 and limits on the parts of the county in which they could operate earlier in the year.

Tennessee: State preempts decriminalization ordinances in Memphis, Nashville

Gov. Bill Haslam (R) signed a law on April 12, 2017, repealing marijuana decriminalization ordinances in Nashville and Memphis.

In September 2016 and October 2016, respectively, Nashville and Memphis approved ordinances allowing city police to issue $50 fines for possession of half an ounce or less of marijuana instead of criminal penalties.

State legislators introduced the bill preempting the ordinances in November 2016, following the release of an opinion by state Attorney General Herbert Slatery that found the ordinances unenforceable. "A municipal ordinance that attempts to regulate a field that is regulated by state statute cannot stand if it is contradictory to state law," Slatery said in his opinion. State Rep. William Lamberth (R), one of the bill's sponsors, said, "You can't allow an officer at their whim to treat two different individuals who have potentially committed the same crime in drastically different ways depending on what that officer feels like at a given time. You just can't have cities creating their own criminal code, willy-nilly."

2016

Kansas: Supreme court overturns Wichita's decriminalization ordinance

On January 22, 2016, the Kansas Supreme Court overturned a 2015 ballot measure decriminalizing the possession of marijuana in Wichita.

The ballot measure replaced the state's criminal penalties for first-time possession of 1.1 ounces of marijuana or less, which included up to a year in prison and a $2,500 fine, with a $50 civil penalty. The measure was approved by Wichita voters with 54 percent of the vote in April 2015, but state Attorney General Derek Schmidt (R) sought to invalidate it on the grounds that it conflicted with state law.

The state supreme court ruled that the ballot measure's backers had failed to comply with K.S.A. 12-3013(a), a state statute governing the initiative and referendum process. The court found that, "The ordinance is null and void because the Initiative failed to file with the city clerk the proposed ordinance along with the petition as set forth in K.S.A. 12-3013(a)." Because that omission was sufficient to invalidate the measure, the court opted not to address the question of whether the ordinance would have been preempted by state law.

See also

Local Politics	2021 Election Analysis	Preemption conflicts
Municipal government Local courts School boards Local ballot measures Local recalls	Municipal elections, 2021 Local court elections, 2021 School board elections, 2021 Local ballot measure elections, 2021 Political recall efforts, 2021	Coronavirus • Energy infrastructure Firearms • GMOs • Labor LGBT • Marijuana Plastic bags Police department budgets Ridesharing Sanctuary jurisdictions • Soda taxes