Proposed California Marijuana Initiative Allows Cannabis Cafés

The measure includes a generous home cultivation limit, and it does not define drugged driving based on THC levels.


Jacob Sullum

This week Reform CA, the leading campaign to legalize marijuana in California next year, filed the proposed language of its ballot initiative. Like the initiatives in the four states that have legalized marijuana so far, the Control, Regulate, and Tax Cannabis Act of 2016 would allow adults 21 or older to possess up to an ounce of marijuana in public. Like three of those initiatives, it also would let people share up to an ounce at a time with other adults and grow marijuana at home.

Unlike the other initiatives, the California measure would limit home cultivation not by the number of plants but by area: up to 100 square feet. Based on an estimate by the consultants who advised Washington's marijuana regulators, a professional grower could produce as much as nine pounds of usable marijuana per harvest in that amount of space, although the typical home garden probably would be much less productive. Home growers would be allowed to possess and share (but not sell) whatever they produced.

The proposed initiative would establish an Office of Cannabis Regulation within the California Department of Consumer Affairs, overseen by a newly created California Cannabis Commission and charged with licensing and regulating marijuana businesses. The office would be required to start issuing "provisional licenses" to existing medical marijuana dispensaries by July 1, 2017, meaning that legal recreational sales could begin as early as then. July 1 is also the deadline for beginning to write regulations for the newly legal recreational industry. Licenses under the new rules would be issued by January 1, 2018. The initiative authorizes three levels of taxation: $2 per square foot of canopy on commercial growers, $15 per ounce on the first sale, and a 10 percent retail sales tax. Local governments could ban marijuana outlets but only with the approval of local voters.

Unlike the earlier initiatives, the Reform CA measure clearly leaves the door open to cannabis consumption outside of private residences. Consumption is legal in "a private residence or such other location as permitted under this Act." Consumption "in a public street, school, playground, public transit vehicle, or any public property" would be an infraction subject to a maximum fine of $500 (which seems steep to me, especially since the corresponding fines in other states range from $50 to $260). Likewise consumption "on any property where such activity is prohibited by the property owner, resident, operator, manager, or business owner." The implication is that consumption in private businesses would be legal (subject to existing restrictions on smoking) as long as the owner says it's OK.

That means cannabis-friendly bars, restaurants, or clubs would be allowed under state law. So would cannabis-friendly limos and similar privately operated conveyances, since consumption in a vehicle is prohibited only "in the driver compartment." In fact, the initiative, like a Massachusetts measure that is expected to appear on the ballot in that state next year, apparently would allow consumption on the premises of marijuana merchants, since it authorizes the Office of Cannabis Regulation to establish "controls governing on-site consumption of cannabis and cannabis products."

The California initiative wisely does not establish a definition of drugged driving based on THC blood levels, an unreliable measure of impairment. Instead it says "a person shall be deemed to be under the influence of cannabis if, as a result of consuming cannabis, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle or operate a vessel with the caution of a sober person, using ordinary care, under similar circumstances." It adds that "this standard shall be the sole standard used in determining driving under the influence allegations."

The initiative sensibly distinguishes between "minors" who are younger than 18 and minors who are 18, 19, or 20 (who in other contexts are recognized as adults). Hence an 18-to-20-year-old who shares marijuana with another 18-to-20-year-old commits an infraction punishable by a $100 fine, the same category as underage possession. If the person providing the marijuana is 21 or older, the offense is still an infraction, but the maximum fine rises to $500. Providing marijuana to someone younger than 18 can be charged as a misdemeanor or a felony. By contrast, there is no felony option in California for providing alcohol to a minor. That inconsistency is hard to justify, especially since alcohol is in several important ways more dangerous than marijuana. 

Reform CA says the initiative is still subject to revision, although feedback must be submitted by midnight tomorrow.