Last Friday, California released another round of emergency regulations that essentially renewed the existing emergency rules, but with some updates, a fair amount of which affect commercial cannabis leasing. Here are some of the notable ones.
“Premises” distinctions defined. SB 94 and AB 133, the statutes enacted in 2017 to implement and refine Prop 64, both defined a licensed “premises” as a “designated structure” that is held “under the control” of the licensee for commercial cannabis activity, and must be contiguous and held by only one licensee. The statutes did not, however, define what those terms meant with regard to physical segregation of licensed spaces, which is an important factor for places like warehouse spaces where multiple tenants want to operate concurrently, or any rental space with common areas. The new emergency regulations address this issue by clarifying that for the areas of a licensed premises required to be under a licensee’s exclusive control for operations, actual walls and locked doors will be required, but that common or shared spaces will be allowed for multi-tenant spaces without violating that requirements. This may seem like common sense, but until now it was not codified. This means that landlords and tenants alike will have more certainty in planning out the leased premises.
Potential for shared entrances. On a related note, the new rules contemplate the use of a shared entrance, so that each licensed premises need not have its own exclusive access to the outside world. The catch, however, is that if neighboring licensees share a common entryway, and state inspectors are prevented from accessing a licensed premises due to a neighboring licensed premises preventing passage, then both licensees shall be responsible for the access violation and subject to discipline. Be warned!
No change to license stacking. Sometimes a lack of change is more significant than a change. The prior emergency regulations caused some controversy by allowing for stacking of small cultivation licenses and the potential proliferation of cannabis mega-farms. In fact, the state had to defend a lawsuit over this very issue. But despite all the controversy, the new regulations do not change the situation: a single licensee can still hold an unlimited amount of cultivation licenses each for up to 10,000 square feet of canopy, with no requirement that those licenses each have a separate and distinct premises.
Strict separation of residential and commercial buildings. It’s very common for commercial cannabis cultivation property purchases, especially in California’s Emerald Triangle, to include a residential home on the property. We’ve previously written about the pitfalls of these farmhouse purchases. The new emergency regulations reflect the state’s concern with mixing home and work when it comes to cannabis. The rules now require that the premises diagram in the license application clearly define which buildings on site are residential and which are commercial, and prohibit any licensed premises from being located within a private residence or from requiring a person to pass through a private residence to access the licensed premises.
Expanded access to shared utilities. An update to the rules last month created a new opportunity for manufacturer co-tenants to sublease shared space under certain circumstances, similar to a time-share arrangement. The new emergency regulations provide additional opportunities for tenants in a multi-tenant building or shared space to pool resources, including security camera systems, security guard services, and alarm systems. The catch, however, is that if multiple licensees decide to share such resources, each licensee is responsible for the violation of any regulations by any other licensee as it pertains to the shared resource.
It remains to be seen what other changes the state might make to its cannabis regulations when it issues its final rules, but it does seem that the rules are tending towards economies of scale in some respects. It will be interesting to see how strictly the state decides to enforce its rules as it continues to deal with black market stragglers that have thus far declined to join the regulated community.
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Author: Daniel Dersham