BILL ANALYSIS
AB 2650
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Date of Hearing: April 20, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2650 (Buchanan) - As Amended: April 15, 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.
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 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.
3)Provides that this restriction shall only apply to medical
marijuana cooperatives, collective, dispensary, operator,
establishment or providers that is authorized by law to
possess, cultivate or distribute medical marijuana.
4)States that nothing in this legislation shall be construed to
supersede existing local ordinances that impose more
restrictive requirements on the location of a medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider that is authorized by law to
possess, cultivate or distribute medical marijuana.
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:
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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
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
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Institutions Code Section 11362.775.)
FISCAL EFFECT : Unknown
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
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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
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.)
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3)California Constitutional Limitations on Legislative
Regulation of Medical Marijuana : SB 420 (Vasconcellos),
Chapter 875, Statutes of 2003, developed and clarified
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.]
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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
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. 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
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liquor stores within 600 to 1,000 feet from a school.
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)Pending Initiative Legalizing Marijuana : Although several
initiatives are in circulation to legalize marijuana in the
State of California, the "Regulate, Control and Tax Cannabis
Act of 2010" qualified for the November 2010 ballot on March
24, 2010. It provides, among other things that any person 21
years of age or older may personally possess or cultivate
marijuana. It allows local governments to enact ordinances
licensing and regulating the possession and cultivation and
consumption in public. It prohibits the seizure or
destruction of lawfully cultivated cannabis by law
enforcement. The initiative also authorizes local governments
to impose an excise tax on the possession, use or cultivation
of marijuana. Nothing in the initiative directly references
the use of marijuana for medicinal purposes, however, the
Compassionate Use Act works as an exception to an otherwise
prohibited substance. If that substance is no longer illegal,
then the exception no longer applies. If this initiative
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passes in November, most of the medical marijuana language
will be moot. Does it make sense to wait and see if marijuana
will be legal before making changes to medical marijuana
dispensaries?
6)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.
7)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
"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
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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
File on the Assembly Floor.
8)Arguments in Opposition :
a) Marijuana Policy Project , "If enacted into law, the bill
would shut down safe access for thousands of seriously ill
patients who rely on medical marijuana collectives for
their medicine. This is at odds with the will of the
California electorate, which overwhelmingly supports
medical marijuana and patients' rights to access it in an
open, safe, and legal environment. This legislation usurps
the authority of local governments to make their own
land-use decisions. It is wholly inappropriate to enact a
one-size-fits-all policy to apply to every jurisdiction in
California - the largest and most diverse state in the
nation.
"This bill would also prohibit any "provider authorized by
law to possess, cultivate, or distribute medical marijuana"
within 1,000 feet of a school. This provision would
criminalize caregivers supplying medical marijuana to any
patient in accordance with existing law simply because of
the location of their residence. Family members such as
spouses and adult children are often designated as
caregivers to provide medical marijuana to their loved ones
who may be too ill to obtain it themselves. Making
criminals out of people for trying to ease a loved one's
pain would be grossly inhumane. Additionally, this
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provision would be an unconstitutional amendment to the
voter-enacted Compassionate Use Act, which specifically
protects primary caregivers from criminal sanctions.
b) According to Americans for Safe Access : "This
restriction is unnecessary to protect public welfare, and
will make finding a location for a legal collective or
cooperative unduly burdensome in most jurisdictions. It
also serves to usurp the authority of city and county
government to make ordinary land use decisions based on the
local circumstances. Americans for Safe Access (ASA)
opposes AB 2650, as amended, and I am writing to encourage
you and your colleagues on the committee to vote no.
"ASA is the nation's largest organization of patients,
medical professionals, scientists and concerned citizens
promoting safe and legal access to cannabis for therapeutic
use and research. We work in partnership with state, local
and national legislators to overcome barriers and create
policies that improve access to cannabis for patients and
researchers. Crime statistics and the accounts of local
officials surveyed by ASA indicate that crime is actually
reduced by the presence of a collective; and complaints
from citizens and surrounding businesses are either
negligible or are significantly reduced with the
implementation of local regulations.
"In Oakland, where collectives have been licensed since 2004,
City Administrator Barbara Killey, notes that "The areas
around the dispensaries may be some of the safest areas of
Oakland now because of the level of security, surveillance,
etc?since the ordinance passed." In the City of Los
Angeles, Police Chief Charlie Beck told City Council
members that the claim that patients' associations attract
crime "doesn't really bear out." In fact, the overall crime
rate in Los Angeles dropped during the proliferation of
collectives and cooperatives in that city. Given that
effective local regulations address public safety concerns,
there is no public safety rationale for a statewide policy
keeping collectives and cooperatives away from sensitive
uses.
"Furthermore, local land use decisions are best made by City
Councils and County Boards of Supervisors based on the
individual circumstances in the community. Usurping this
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local authority with an arbitrary statewide limit will
interfere with the ability of local governments to use
their discretion in developing the kinds of regulations
that are already proven to protect legal patients and the
community at large. Land use issues related to these
associations should continue to be made at the local level
- just like those for other legal businesses or
organizations.
"Finally, most of California's legal medical cannabis
patients rely on dispensing collectives or cooperatives to
obtain the doctor-recommended medicine they need to treat
the symptoms of HIV/AIDS, cancer, Multiple Sclerosis,
chronic pain, and other serious illnesses. These patients'
associations are legal under California law, and California
Attorney General Jerry Brown published guidelines in August
2008 that state "a properly organized and operated
collective of cooperative that dispenses medical marijuana
through a storefront may be lawful under California law,"
provided the facility substantially complies with the
guidelines. It is already hard enough to find a location
for a legally organized and operated medical cannabis
association. AB 2650 will make this task even more
difficult - thus diminishing safe and legal access to
medicine in communities statewide.
"A restriction like that imposed by AB 2650 may be motivated
by a misunderstanding about the state law concerning
patients' associations or by ambivalence about medical
cannabis use in general. ASA urges you and your colleagues
to look past the stigma that sometimes underlies the debate
about medical cannabis regulations, and to vote no on AB
2650 because it is unnecessary for public welfare,
interferes in local regulation, and is harmful to legal
medical cannabis patients
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
Americans for Safe Access
AB 2650
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California NORML
Drug Policy Alliance
Marijuana Policy Project
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744