By Griffen Thorne, Attorney at Harris Bricken

This Thursday, December 8, 2022, the City of Los Angeles will open Phase 3, Round 2 of storefront retail licensing. The City will only accept applications from verified social equity applicants. It will select winners via a “triple-blind” lottery, awarding up to 100 retail licenses. But a guy in Michigan is trying to prevent the lottery from moving forward on constitutional grounds. Let’s look at what’s going on.

Law360 recently reported on a case filed by a Michigan resident seeking to halt LA’s program. The same plaintiff successfully halted licensing in parts of New York on similar grounds, and has also filed claims in other jurisdictions to varying degrees of success. His claims boil down to one key question: do LA’s social equity violate the Dormant Commerce Clause of the United States Constitution?

Before analyzing LA’s retail licensing program, let’s look at why the Dormant Commerce Clause is important. As we wrote in a recent post:

[I]n general the [Dormant Commerce Clause] prohibits states from enacting laws that place substantial burdens (discriminate) on interstate commerce. This means that when a state enacts a law that regulates interstate economic activity by favoring its own residents, as with Maine’s residency requirement, it must be “narrowly tailored”.

Broadly speaking, this means the state must be able to justifiable the discriminatory law. That’s the rub: Maine’s (and many other states’) requirement that medical marijuana licensees be state residents is clearly discriminatory against non-residents. In this case, Maine did not dispute that the law was not narrowly tailored and as a result the First Circuit found it unconstitutional.

States often try to stack the deck in favor of locals by implementing residency requirements, which we have noted for quite a while violate the Dormant Commerce Clause (see here from all the way back in 2015 and here from more recently). In virtually any other industry, challenging laws like this would have yielded a clear victory. But since cannabis is federally illegal, many folks didn’t raise Dormant Commerce Clause challenges until much more recently. And as mentioned above (in the case of Maine and New York, for example), they are starting to win.

Now turning back to LA’s social equity retail licensing program, LA required social equity applicants to meet the following criteria.

• A qualifying California Cannabis Arrest or Conviction* prior to November 8, 2016; and,
• At least one other eligibility criteria:
  • 10 years of cumulative residency in a Disproportionately Impacted Area, as defined by police reporting districts; or,
  • Low Income in the 2020 or 2021 calendar year.

In other words, to qualify, one must have an arrest in California. The plaintiff here claims he meets all of the above criteria except that he had an out-of-state conviction. So he alleges a Dormant Commerce Clause violation.

The plaintiff’s claims are very interesting from a legal point of view. LA did not adopt a residency requirement. Instead, it just required evidence of an in-state conviction, not an in-state residence.

Technically, nothing would prevent someone who lived in Los Vegas, London, or Beijing from applying so long as they had been convicted in California. So the city has some leeway to argue that there are no Dormant Commerce Clause issues in play. It’s less clear how the case will play out.

Stay tuned to the Canna Law Blog for updates on the Dormant Commerce Clause and cannabis licensing.

Re-published with the permission of Harris Bricken and The Canna Law Blog