BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2650
                                                                  Page 1

          Date of Hearing:   April 13, 2010
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 2650 (Buchanan) - As Amended:  April 8, 2010


           SUMMARY  :    Prohibits any medical marijuana cooperative,  
          collective, dispensary, operator, establishment, or provider who  
          possess, cultivates, or distributes  medical marijuana, as  
          specified, from being located within 1,000 feet of a school,  
          public park, public library, religious institution, licensed  
          child care facility, youth center, substance abuse  
          rehabilitation center, or any pre-existing medical marijuana  
          cooperative or dispensary, as specified.  Specifically,  this  
          bill  :   

          1)States that the 1,000-foot restriction shall be the horizontal  
            distance measured in a straight line from the property line of  
            the school, public park, public library, religious  
            institution, licensed child care facility, youth center,  
            substance abuse rehabilitation center, or preexisting medical  
            marijuana cooperative or dispensary, as specified, to the  
            closest property line of that lot on which the medical  
            marijuana cooperative or dispensary is located without regard  
            to intervening structures. 

          2)Provides that the 1,000-foot restriction shall not apply to  
            medical marijuana cooperatives or dispensaries, as specified  
            that are also licensed residential medical or elder care  
            facilities. 

           EXISTING LAW  :

          1)States the People of the State of California hereby find and  
            declare that the purposes of the Compassionate Use Act of 1996  
            are as follows:

             a)   To ensure that seriously ill Californians have the right  
               to obtain and use marijuana for medical purposes where that  
               medical use is deemed appropriate and has been recommended  
               by a physician who has determined that the person's health  








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               would benefit from the use of marijuana in the treatment of  
               cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,  
               arthritis, migraine, or any other illness for which  
               marijuana provides relief.

             b)   To ensure that patients and their primary caregivers who  
               obtain and use marijuana for medical purposes upon the  
               recommendation of a physician are not subject to criminal  
               prosecution or sanction.

             c)   To encourage the Federal and State governments to  
               implement a plan to provide for the safe and affordable  
               distribution of marijuana to all patients in medical need  
               of marijuana. [Health and Safety Code (HSC) Section  
               11362.5(b)(1)(A) to (C).] 

          2)Provides that nothing in this law shall be construed to  
            supersede legislation prohibiting persons from engaging in  
            conduct that endangers others, or to condone the diversion of  
            marijuana for non-medical purposes.  [HSC Section  
            11362.5(b)(2).]

          3)States notwithstanding any other provision of law, no  
            physician in California shall be punished, or denied any right  
            or privilege, for having recommended marijuana to a patient  
            for medical purposes.  [HSC Section 11362.5(c).]

          4)States existing law, relating to the possession of marijuana  
            and the cultivation of marijuana, shall not apply to a  
            patient, or to a patient's primary caregiver, who possesses or  
            cultivates marijuana for the personal medical purposes of the  
            patient upon the written or oral recommendation or approval of  
            a physician.  [HSC Section 11362.5(d).]

          5)Provides that qualified patients, persons with valid  
            identification cards, and the designated primary caregivers of  
            qualified patients and persons with identification cards, who  
            associate within the State of California in order collectively  
            or cooperatively to cultivate marijuana for medical purposes,  
            shall not solely on the basis of that fact be subject to state  
            criminal sanctions under existing law.  (Welfare and  
            Institutions Code Section 11362.775.)

           FISCAL EFFECT  :   Unknown









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           COMMENTS  :   

           1)Author's Statement  :  According to the author, "January 2010,  
            the Los Angeles City Council passed an ordinance to regulate  
            the collective cultivation of the medical marijuana in order  
            to ensure the health, safety and welfare of the residents of  
            the City of Los Angeles.  Several cities in our district,  
            including Danville, Walnut Creek and Isleton, have recently  
            passed ordinances to move, restrict or ban marijuana  
            dispensaries in within their city limits.  As Medical  
            Marijuana Dispensaries are increasing throughout the state,  
            more and more are opening closer to our schools.  Currently,  
            there is no guidance as the most appropriate locations for  
            these dispensaries to open.  As a result, we have cases of  
            dispensaries opening up close to schools and other places  
            where children congregate.  As Medical Marijuana Dispensaries  
            continue to open throughout the state, they are increasingly  
            located near schools and parks, public libraries and child  
            care facilities.  To keep Medical Marijuana Dispensaries from  
            further encroaching from places where children and families  
            congregate, we believe we need to keep them a measured  
            distance from these locations."

           2)Compassionate Use Act of 1996 (Proposition 215)  :  In November  
            1996, Californians voted in favor of Proposition 215, the  
            "Compassionate Use Act".  Pursuant to HSC Section 11362.5, the  
            Act ensured the right of patients to obtain and use marijuana  
            in California to treat specified serious illnesses.   
            Additionally, the Act protected physicians who appropriately  
            recommended the use of marijuana to patients for medical  
            purposes and exempted qualified patients and their primary  
            caregivers from California drug laws prohibiting possession  
            and cultivation of marijuana.  (McCabe, It's High Time:   
            California Attempts to Clear the Smoke Surrounding the  
            Compassionate Use Act, 35 McGeorge L. Rev. 545, 546.)

          "Although qualifying patients and their caregivers are exempt  
            from California state cultivation and possession laws under  
            the Act, there are no provisions addressing other relevant  
            issues, such as the formation of cooperatives for the purpose  
            of cultivating and distributing marijuana, transportation of  
            marijuana by patients or caregivers, or provisions  
            establishing the quantity of marijuana a qualified person may  
            possess.  Further, absence of uniform guidelines adversely  
            affected the ability of law enforcement officers to enforce  








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            the Act, resulting in inconsistent application.  It has even  
            been alleged that Proposition 215 was purposely drafted to be  
            vague."  (Ibid at 547.)    

          The United States Supreme Court specifically ruled on whether  
            the Compassionate Use Act of 1996 could decriminalize the use  
            of marijuana for medicinal purposes.  Gonzalez vs. Raich  
            (2004) 125 S.Ct. 3195 held California could not exempt  
            marijuana for medicinal use from the criminal possession  
            statute.  The Court based its ruling on the idea that use of  
            "any commodity, be it wheat or marijuana, has a substantial  
            effect on the supply and demand in the national market for  
            that commodity" and, hence, falls within interstate commerce.   
            The Court ruled that the Federal Control Substances Act  
            preempts any state attempt to decriminalize marijuana (Raich  
            at 2208), meaning that federal agencies may enforce federal  
            law in California notwithstanding the Compassionate Use Act,  
            but there is no requirement that state law enforcement assist  
            in enforcement. 

          In City of Garden Grove vs. Superior Court of Orange County  
            (hereinafter City of Garden Grove) (2007) 157 Cal.App. 4th  
            355, the court of appeal argued that a defendant, whose  
            charges of marijuana transportation were dismissed, was  
            entitled to the return of seized marijuana.  The trial court  
            granted the patient's motion for return of property.  The  
            appellate court held that the city had standing under existing  
            law to seek a writ of mandate because the question of whether  
            medical marijuana patients were entitled to the return of  
            lawfully seized marijuana was an issue of considerable public  
            interest.  The court stated that the patient's marijuana  
            possession was legal under state law but it was illegal under  
            federal law.  The court concluded that his possession was  
            lawful for purposes of obtaining the return of property  
            because state courts were not required to enforce federal drug  
            laws.  Further, the federal drug laws did not preempt state  
            law under the supremacy clause of the United States  
            Constitution as to the return of medical marijuana to  
            qualified users.  Due process required the return of seized  
            property after the dismissal of a criminal charge.  (City of  
            Garden Grove at 370.)

           3)California Constitutional Limitations on Legislative  
            Regulation of Medical Marijuana  :  SB 420 (Vasconcellos),  
            Chapter 875, Statutes of 2003, developed and clarified  








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            Proposition 215.  Much of the state regulatory scheme for use  
            of medical marijuana defers to city and counties to draft  
            their own rules.  Health and Safety Code Section 11362.77  
            states, in relevant part, "Counties and cities may retain or  
            enact medical marijuana guidelines allowing qualified patients  
            or primary caregivers to exceed the state limits" for  
            marijuana possession set forth existing law.  [HSC Section  
            11362.77(c).]  Health and Safety Code Section 11362.72(a)  
            requires county departments of health to issue and regulate  
            medical marijuana identification cards.  As noted above, SB  
            420 provided statutory guidelines for a right established  
            through initiative.  

          The California Supreme Court very recently ruled on the  
            Legislature's ability to regulate the use of medical marijuana  
            because it was an initiative.  The California Constitution  
            states, "The Legislature may amend or repeal referendum  
            statutes.  It may amend or repeal an initiative statute by  
            another statute that becomes effective only when approved by  
            the electors unless the initiative statute permits amendment  
            or repeal without their approval."  [Cal. Const., art. II,  
            Sec. 10.]  Therefore, unless the initiative expressly  
            authorizes the Legislature to amend, only the voters may alter  
            statutes created by initiative.  Proposition 215 is silent as  
            to the Legislature's authority to amend that proposition. 

          "The purpose of California's constitutional limitation on the  
            Legislature's power to amend initiative statutes is to protect  
            the people's initiative powers by precluding the Legislature  
            from undoing what the people have done, without the  
            electorate's consent.  Courts have a duty to jealously guard  
            the people's initiative power, and hence to apply a liberal  
            construction to this power wherever it is challenged in order  
            that the right to resort to the initiative process is not  
            improperly annulled by a legislative body.  At the same time,  
            despite the strict bar on the Legislature's authority to amend  
            initiative statutes, the Legislature is not precluded from  
            enacting laws addressing the general subject matter of an  
            initiative.  The Legislature remains free to address a related  
            but distinct area."  [Proposition 103 Enforcement Project vs.  
            Quackenbush (1998) 64 Cal.App. 1473.] 

          In People vs. Kelly, the California Supreme Court ruled that the  
            Legislative restriction on the number of plants a person may  
            possess was unconstitutional as it interfered with the rights  








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            established by the initiative.  Although the Legislature may  
            be able to clarify or expand the rights established in  
            Proposition 215, it may not enact legislation that interferes  
            with the use of marijuana for medicinal purposes.  The Kelly  
            Court stated:  

          "Under the CUA [Compassionate Use Act], as adopted by  
            Proposition 215, these individuals are not subject to any  
            specific limits and do not require a physician's  
            recommendation in order to exceed any such limits; instead  
            they may possess an amount of medical marijuana reasonably  
            necessary for their, or their charges', personal medical  
            needs.  By extending the reach of Health and Safety Code  
            Section 11362.77's quantity limitations beyond those persons  
            who voluntarily register under the MMP [Medical Marijuana  
            Program] and obtain an identification card that provides  
            protection against arrest - and by additionally restricting  
            the rights of all qualified patients and primary caregivers  
            who fall under the CUA - the language of Section Health and  
            Safety Code Section 11362.77 effectuates a change in the CUA  
            that takes away from rights granted by the initiative statute.  
             In this sense, [Health and Safety Code Section 11362.77]  
            quantity limitations conflict with - and thereby substantially  

          restrict - the CUA's guarantee that a qualified patient may  
            possess and cultivate any amount of marijuana reasonably  
            necessary for his or her current medical condition.  In that  
            respect, Section 11362.77 improperly amends the CUA in  
            violation of the California Constitution." [People vs. Kelly  
            (hereinafter Kelly) (2010) 47 Cal.4th 1008, 1044.]

          This bill creates a statewide prohibition for any medical  
            marijuana dispensary to be located within 1,000 feet of a  
            school, public park, public library, religious institutions,  
            licensed child care facilities, youth centers, substance abuse  
            rehabilitation centers, or another dispensary.  It is arguable  
            that in some jurisdictions this restriction may completely  
            eliminate medical marijuana dispensaries.  In that case, the  
            prohibition may be viewed by the court as "substantially  
            restricting" access to medical marijuana.  If that is the  
            case, this proposed legislation, if enacted, may be  
            invalidated as unconstitutional.  Some medical marijuana  
            advocates have suggested dispensaries should be treated like  
            liquor stores.  Most jurisdictions prohibit liquor stores  
            within 600 to 1,000 feet from a school.  However, the  








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            restriction in this bill also includes parks, libraries, youth  
            centers, religious institutions, child care facilities or  
            rehabilitation centers may be overly broad.  Also, there is no  
            definition of "youth center" or "religious institution",  
            giving local government no direction on how to enforce this  
            provision.  

           4)Local Governments  :  This language appears to be what the Los  
            Angeles City Council adopted in February 2010.  The City of  
            Los Angeles rejected a more stringent 500-foot rule in favor  
            of a broader 1,000-foot rule.  The Council took hours of  
            testimony on access and agreed to consider and revisit access  
            to dispensaries if it is determined that the restriction will  
            limit the rights of patients.  Americans for Safe Access (ASA)  
            have filed suit in Los Angeles Superior Court seeking an  
            injunction against the ordinance and Los Angeles City Council  
            from enforcing its language.  ASA is arguing the 1,000-foot  
            restriction will effectively eliminate access to medical  
            marijuana in a manner inconsistent with the proposition.  The  
            request for injunction was filed on March 18, 2010.  [Barboza,  
            "Medical Marijuana Advocates Challenge L.A. Ordinance", Los  
            Angeles Times, March 2, 2010, pg. 1A.]  Los Angeles devoted  
            two and one-half years developing regulations and may still be  
            constitutionally prohibited from acting.  

          Since the passage of SB 420 in 2003, much of the medical  
            marijuana regulation has been determined by local  
            jurisdictions better equipped to resolve issues related to the  
            unique nature of its city or county.  Given the precarious  
            constitutional status of the 1,000-foot restriction in Los  
            Angeles, should the Legislature defer to local governments  
            until legal issues may be resolved?

           5)Related Legislation  :  AB 390 (Ammiano) legalizes the  
            possession, sale, cultivation and other conduct relating to  
            marijuana by persons over the age of 21.  AB 390 passed out of  
            the Assembly Committee on Public Safety and was never heard in  
            the Assembly Committee on Health. 

           6)Prior Legislation  :

             a)   SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,  
               established the Marijuana Research Act of 1999 and provided  
               that the Regents of the University of California, if they  
               elect to do so, may implement a three-year program, the  








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               "California Marijuana Research Program", under which funds  
               would be provided for studies intended to ascertain the  
               general medical safety and efficacy of marijuana and, if  
               found valuable, to develop medical guidelines for the  
               appropriate administration and use of marijuana.

             b)   SB 791 (McPherson), of the 2001-02 Legislative Session,  
               would have reduced simple possession of not more than 28.5  
               grams or marijuana to an infraction for the first offense  
               and an alternate infraction/misdemeanor for the second  
               offense.  SB 791 failed passage on the Assembly Floor.

             c)   SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,  
               establishes a voluntary registry identification card system  
               for patients authorized to engage in the medical use of  
               marijuana and their caregivers.

             d)   SB 131 (Sher), of the 2003-04 Legislative Session, would  
               have reduced simple possession of not more than 28.5 grams  
               of marijuana to an infraction for the first offense, would   
               have reduced simple possession for a subsequent offense to  
               an alternate infraction/misdemeanor, and would have  
               increased the penalty for an offense to a fine of not more  
               than $250.  SB 131 failed passage on the Assembly floor,  
               was granted reconsideration, and was never re-heard.

             e)   SB 797 (Romero), of the 2005-06 Legislative Session,  
               would have reclassified a first offense for simple  
               possession of not more than 28.5 grams of marijuana as an  
               alternate infraction/misdemeanor and increases the penalty  
               for the offense from $100 to $250.  SB 797 failed passage  
               on the Assembly Floor and was moved to the Inactive File  
               after being granted reconsideration.  

             f)   AB 684 (Leno), of the 2007-08 Legislative Session, would  
               have clarified the definition of "marijuana" contained in  
               the Uniformed CSA to exclude industrial hemp, except where  
               the plant is cultivated or processed for purposes not  
               expressly allowed, as specified.  AB 684 was vetoed. 

             g)   AB 2743 (Saldana), of the 2007-08 Legislative Session,  
               would have stated that it is the policy of California that  
               its agencies and agents not cooperate in federal raids and  
               prosecutions for marijuana related offenses if the target  
               is a qualified patient.  AB 2743 was moved to the Inactive  








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               File on the Assembly Floor.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None

           Opposition 
           
          None
           

          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744