BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 2 6 5 AB 2650 (Buchanan) 0 As Amended June 10, 2010 Hearing date: June 29, 2010 Health & Safety Code JM:dl MEDICAL MARIJUANA HISTORY Source: Peace Officers Research Association of California Prior Legislation: SB 420 (Vasconcellos) - Ch. 875, Stats. 2003 SB 847 (Vasconcellos) - Ch. 750, Stats. 1999 Support: Association of California School Administrators; California Police Chiefs' Association; California Narcotics Officers Association; California State Parent Teacher Association; California State Sheriffs' Association; Sacramento Police Officers Association; Elk Grove Chief of Police Opposition:League of California Cities; Drug Policy Alliance; Marijuana Policy Project Assembly Floor Vote: Ayes 54 - Noes 15 KEY ISSUES SHOULD A SPECIFIED MEDICAL MARIJUANA ENTITY THAT OPERATES THROUGH A STOREFRONT OR MOBILE RETAIL OUTLET BE PROHIBITED FROM LOCATING WITHIN A "600 FOOT RADIUS" OF A SCHOOL? (More) AB 2650 (Buchanan) PageB SHOULD THIS BILL NOT PREEMPT ANY LOCAL ORDINANCE REGULATING THE LOCATION OR ESTABLISHMENT OF A MEDICAL MARIJUANA ENTITY, IF THE ORDINANCE WAS ADOPTED PRIOR TO THE EFFECTIVE DATE OF THIS BILL (JANUARY 1, 2011)? (CONTINUED) AFTER THE EFFECTIVE DATE OF THIS BILL, SHOULD ANY LOCAL ENTITY ONLY BE AUTHORIZED TO ADOPT AN ORDINANCE THAT IS MORE RESTRICTIVE THAN THIS BILL? PURPOSE The purposes of this bill are to 1) prohibit operation or establishment of a medical marijuana cooperative, collective, dispensary or provider within 600 feet of a school; 2) to provide that ordinances adopted prior to the effective date of this bill (1/1/2011) regulating the location or establishment of such a medical marijuana entity shall not be preempted by this bill; and 3) to authorize a local entity to only adopt an ordinance that restricts the location or establishment of a medical marijuana entity "further" than those entities are restricted by this bill. Existing law - the Compassionate Use Act of 1996 (Health & Saf. Code 11362.5), includes the following purposes: To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where such 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. To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the (More) AB 2650 (Buchanan) PageC recommendation of a physician are not subject to criminal prosecution or sanction. 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 Saf. Code 11362.5, subd. (b)(1)(A)- (C).) Existing law - the Compassionate Use Act - also provides: The act shall not 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. (Health & Saf. Code 11362.5, subd. (b)(2).) No physician in California shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (Health & Saf. Code 11362.5, subd. (c).) Penal laws 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. (Health & Saf. Code 11362.5, subd. (d).) Existing law 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. (Health & Saf. Code 11362.775.) This bill provides that its terms shall apply to persons specified in Health and Safety Code Section 11362.765. Those persons are qualified patients, persons with valid (More) AB 2650 (Buchanan) PageD 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. This bill prohibits any medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possess, cultivates, or distributes medical marijuana, as specified, from being located within 600 feet of a school. This bill states that the 600-feet distance 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. This bill provides that the 600-feet restriction shall not apply to medical marijuana cooperatives or dispensaries, as specified that are also licensed residential medical or elder care facilities. This bill provides that this restriction shall only apply to medical marijuana cooperatives, collective, dispensary, operator, establishment or providers that are authorized by law to possess, cultivate or distribute medical marijuana. This bill does not preempt local ordinances, adopted prior to January 1, 2011 (the effective date of this bill), that regulate the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider. This bill states that after the effective date of this bill, a local entity can only adopt a 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 than imposed under this bill. (More) AB 2650 (Buchanan) PageE RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison (More) AB 2650 (Buchanan) PageF population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed to hear the state's appeal in this case. This bill does not appear to aggravate the prison overcrowding crisis described above. --------------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 2650 (Buchanan) PageG COMMENTS 1. Need for This Bill According to the author: Currently, there is no guidance from the state regarding the location of medical marijuana dispensaries. In La Jolla there is dispensary across the street from a high school, one block from a middle school and four blocks from an elementary school. This measure simply prevents medical marijuana dispensaries with a storefront from being located directly across from a school. By requiring dispensaries to be located at least 600 feet from a school, this measure is consistent with the distance most bars and liquor stores are banned. Additionally, this bill does not preempt existing local ordinances that regulate the location of marijuana dispensaries as the most appropriate locations for these dispensaries to open. This bill represents a balanced approach between our responsibilities to our children and schools and the need for patients to have access to medical marijuana dispensaries. 2. Compassionate Use Act of 1996 (Proposition 215) - Medical Marijuana General Considerations Proposition 215 -- the "Compassionate Use Act (CUA) -- was enacted in November, 1996. The Act is set out in Health and Safety Code Section 11362.5. The CUA established the right of patients to obtain and use marijuana in California to treat specified serious illnesses and any other illness for which marijuana provides relief. Additionally, the CUA specifically protects physicians who recommend the use of marijuana to patients for medical purposes and exempts qualified patients and their primary caregivers from California drug laws prohibiting possession and cultivation of marijuana. (McCabe, It's High (More) AB 2650 (Buchanan) PageH Time: California Attempts to Clear the Smoke Surrounding the Compassionate Use Act, (2004) 35 McGeorge L. Rev. 545, 546.) The law review article noted: 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 the Act, resulting in inconsistent application. It has even been alleged that Proposition 215 was purposely drafted to be vague. (Ibid at p. 547.) Federal Law The United States Supreme Court in Gonzalez vs. Raich (2004) 125 S.Ct. 3195, held that California could not exempt marijuana for medicinal use from the criminal possession statute in contravention of federal law. The ruling was based on the Commerce Clause of the United States Constitution. The court found 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. However, and perhaps most important, there is no requirement that state law enforcement assist in enforcement. A Patient's Right to Possess Marijuana, and the Right to Return of Marijuana taken from the Patient by the Police, under California Law (More) AB 2650 (Buchanan) PageI In City of Garden Grove vs. Superior Court of Orange County (hereinafter Garden Grove) (2007) 157 Cal.App.4th 355 the Court of Appeal held that a defendant, whose charges of marijuana transportation were dismissed, was entitled to the return of seized marijuana. 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 the defendant was entitled to a return of property that was legal for him to own 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. (Id, at p. 370.) 3. Constitutional Provisions Limit the Ability of the Legislature to Affect the CUA 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 an initiative, only the voters may alter statutes created thereby. The court in Proposition 103 Enforcement Project vs. Quackenbush (1998) 64 Cal.App.4th 1473, explained: The purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to protect the people's initiative powers (More) AB 2650 (Buchanan) PageJ 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. The California Supreme Court recently ruled on the power of the Legislature to amend or affect the Compassionate Use Act (CUA). (People v. Kelly (2010) 47 Cal.4th 1008.) In Kelly, the court ruled that the Legislative restriction on the number of plants a qualified patient may possess was unconstitutional as it interfered with the rights established by the initiative. Although the Legislature may 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 [patients and primary caregivers] 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 (More) AB 2650 (Buchanan) PageK takes away from rights granted by the initiative statute. In this sense, 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 v. Kelly, supra, 47 Cal.4th 1008, 1044.) This bill creates a statewide prohibition for any medical marijuana dispensary to be located within 600 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. AS THE LEGISLATURE CANNOT CONSTITUTIONALLY SET OR LIMIT THE AMOUNT OF MARIJUANA A QUALIFIED PATIENT MAY POSSESS, CAN THE LEGISLATURE CONSTITUTIONALLY PROHIBIT A VALID COOPERATIVE OR COLLECTIVE FROM OPERATING WITHIN 600 FEET OF A SCHOOL? 4. California Supreme Court Case Interpreting the Term "Primary Caregiver" Arguably Limits the Function or Powers of Caregivers under the Act, Particularly as Concerns Providing Marijuana to Patients In People v. Mentch (2008) 45 Cal.4th 274, the California Supreme Court interpreted the term "primary caregiver" within the mean of the CUA. The defendant in Mentch (Roger Mentch) operated a business called the Hemporium and provided marijuana to five medical marijuana users, each of whom had a doctor's recommendation to use the drug. Mentch testified that he did not make a profit from medical marijuana, but only recovered his expenses. He took two of the patients/customers to medical appointments on a sporadic basis. He counseled his patients/customers on the best strains of marijuana for their particular maladies. (Id, at pp. 280-281.) (More) AB 2650 (Buchanan) PageL The court found that Mentch was not a primary caregiver. The court succinctly held: "[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, 3) at or before the time he or she assumed responsibility for assisting with medical marijuana." (Id, at p. 283.) The court continued: "A primary caregiver must establish he or she satisfies the responsibility clause cased on evidence independent of the administration of marijuana." (Id, at p. 284.) The words the statute uses -- housing, health, safety -- imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." (Id, at p. 286.) 5. Joint Consideration of Mentch and Kelly The decision in Kelly clearly establishes the right of a patient to obtain any amount of marijuana necessary to treat his or her malady. The decision in Mentch effectively limits the assistance a qualified patient can received from others in obtaining medical marijuana. A patient who does not have a primary caregiver who meets the standards set out in Mentch must rely on his or her own efforts to obtain medical marijuana. A law that substantially or significantly impedes the patient's ability to obtain medical marijuana - including by make it unreasonably difficult for a patient to reach a coop or cooperative - would be challenged as being an unconstitutional amendment to the CUA. IN CONSIDERATION OF THE RELATIVELY STRINGENT REQUIREMENTS FOR A PERSON TO BE A PRIMARY CAREGIVER, WOULD STATEWIDE RESTRICTIONS ON THE LOCATION AND ESTABLISHMENT OF MEDICAL MARIJUANA COOPERATIVES AND OTHER PROVIDERS BE UNDULY BURDENSOME? 6. Los Angeles Ordinance Terms of the Ordinance (More) AB 2650 (Buchanan) PageM This bill appears to be modeled in part on an ordinance adopted by Los Angeles City Council in January, 2010 and only fully implemented in the past week. Two of the main reasons stated by proponents of the measure were that dispensaries were proliferating too rapidly and concentrating in certain areas. It appears that residents in some areas complained of excess traffic, congregation of patients near sites, litter and other problems. The Los Angeles ordinance prohibits medical marijuana dispensaries from being located within 1,000 feet of sensitive locations, including schools churches and parks. A provision in the ordinance allows police to obtain patient lists and doctor's recommendations from a dispensary without a warrant. It also appears that a violation of the Los Angeles ordinance is punishable by a jail term of up to six months and civil fines of up to $2,500 per day. In the past week, orders to approximately 440 dispensaries to shut down were implemented. Court Challenges It appears that numerous challenges to the ordinance were filed in Los Angeles courts. Americans for Safe Access (ASA) sought at injunction in the Los Angeles County Superior Court against the ordinance and Los Angeles City Council on the grounds that the 1,000-foot restriction effectively eliminates access to medical marijuana and thereby violates the Compassionate Use Act. A final request for an injunction was denied on June 4, 2010, clearing the way for enforcement of the ordinance. However, additional litigation in the matter will continue. The Los Angeles Times, in an article filed June 5, 2010, explained the court's order and pending matters before the court: Attorneys for patients using medical marijuana had filed a class-action lawsuit against the city last week, contending that the law would unconstitutionally bar patients' access to their medicine. ? In court (More) AB 2650 (Buchanan) PageN Friday, attorneys presented a map to the judge that they said showed most dispensaries will have to close if forced to comply with the ordinance? [Judge] Chalfant rejected that argument, saying because patients can grow their own marijuana and an estimated 137 shops will be allowed to remain open at least temporarily, there was no reason to issue an emergency order stopping the city from implementing the law. (More) "I believe access to medical marijuana ? is supposed to be limited," the judge said. "It is not supposed to be freely available on the street to anyone who wants it; that was the intention of the people." He said, however, that patients may have grounds to ask for an injunction based on their privacy rights - the city ordinance says police will be able to obtain patient lists and doctors' recommendations without a warrant. The judge also denied requests from lawyers representing dispensaries to stop the ordinance. The lawyers had contended that their clients' rights as property owners and their due process rights would be violated when the city's law takes effect. Chalfont ordered attorneys to file additional papers on whether allowing certain dispensaries to remain open while closing others would be a violation of the equal protection clause of the California Constitution. Hearings for the patients and the dispensaries were set for early July. ARE CHALLENGES TO THE LOS ANGELES ORDINANCE STILL BEING LITIGATED? 7. Local Regulation Generally- Preemption Except for Ordinances that are More Restrictive than this Bill Since the passage of SB 420 in 2003, medical marijuana regulation has been done by local jurisdictions. This bill does include a "grandfather" clause that allows a local ordinance enacted prior to the effective date of this bill to stand. However, after the effective date of this bill, only local (More) AB 2650 (Buchanan) PageP ordinances that are more restrictive than this bill as to location and establishment of medical marijuana facilities will not be preempted by state law. It has been argued that a single state-wide standard for locations of medical marijuana dispensaries ignores the wide differences among communities in California. These differences extend to physical features, population density, transportation, medical needs of patients and public attitudes about medical marijuana. It can be argued that each local government entity, in comparison with the state, best understands the particular issues concerning medical marijuana that may arise in each city or county. A standard that is workable in a rural area could be very difficult to comply with in a very dense urban area such as San Francisco. BECAUSE OF THE UNIQUE CIRCUMSTANCES IN EACH CITY AND COUNTY - INCLUDING DENSITY OF POPULATION, RENTAL PRICES, TRANSPORTATION, AND HEALTH PROBLEMS IN PARTICULAR NEIGHBORHOODS - SHOULD REGULATION OF THE LOCATION AND ESTABLISHMENT OF MEDICAL MARIJUANA FACILITIES BE LEFT TO LOCAL GOVERNMENT? ***************