BILL ANALYSIS Ó
AB 1300
Page 1
Date of Hearing: April 26, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1300 (Blumenfield) - As Amended: March 31, 2011
REVISED
SUMMARY : Defines "marijuana cooperative or collective" and
allows local governments to regulate marijuana cooperatives and
collectives. Specifically, this bill :
1)Defines a "marijuana cooperative or collective" as a location
where qualified patients, persons with valid identification
cards, or the designated primary caregiver of qualified
patients or persons with identification cards associate within
this state in order to collectively or cooperatively cultivate
or dispense marijuana for medical purposes to person
authorized to possess medical marijuana, as specified.
2)Allows cities or other local governing bodies to adopt and
enforce local ordinances that regulate the location, operation
or establishment of a medical marijuana cooperative or
collective; the civilly or criminally enforce those local
ordinances; and to enact other laws consistent with the
Medical Marijuana Program (MMP), as specified.
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
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
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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. İHealth 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. İHSC 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. İHSC 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. İHSC 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.)
6)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. (Welfare and
Institutions Code Section 11362.768.)
AB 1300
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1300
clarifies California's medical marijuana laws to protect the
right of communities to regulate dispensaries in a manner
consistent with the intent of the voters who authorized the
use of marijuana for medical purposes."
2)Background : According to information provided by the author,
"AB 1300 clarifies two important components of our state's
medical marijuana laws. The bill clarifies provisions of the
Medical Marijuana Program (MMP) Act of 2003 relating to the
authority of local governments to enact ordinances affecting
medical marijuana collectives or cooperatives. This is
necessary due to the frequency of lawsuits challenging the
authority of local governments to regulate land use, zoning,
business licensure, and use permit conditions as they affect
the operations of what are commonly referred to as
dispensaries or pot clubs.
"Under article XI, section 7 of the California Constitution, 'A
county or city may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations
not in conflict with general laws.' Yet some argue that the
Proposition 215 of 1996 and the MMP constitute the parameters
of medical marijuana cooperative or collective regulation and,
therefore, preclude local governments from enforcing any
additional requirements. In the wake of key court cases on
point, this bill clarifies state law so that communities may
adopt ordinances and enforce them without the instability and
expense of lawsuits challenging legal issues that have already
been resolved.
"This provision of the bill is written to be consistent with our
state constitution and three appellate court decisions: (1)
City of Claremont v. Darrell Kruse, which found that there is
nothing in the text or history of Proposition 215 suggesting
that the voters intended to mandate municipalities to allow
medical marijuana dispensaries to operate within their
jurisdictions, or to alter the fact that land use has
historically been a function of local government under their
grant of police power. (2) City of Corona v. Ronald Naulls,
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which found that a dispensary's failure to comply with the
city's procedural requirements before opening and operating a
medical marijuana dispensary could be prosecuted as a
nuisance. (3) County of Los Angeles v. Martin Hill, which
found the MMP does not confer on qualified patients and their
caregivers the unfettered right to cultivate or dispense
marijuana anywhere they choose, and that dispensaries are not
similarly situated to pharmacies and, therefore, do not need
to be treated equally under local zoning laws.
"The bill also defines medical marijuana 'collaborative or
cooperative' in order to specify the parameters of local
authority for medical marijuana regulation consistent with
Proposition 215 of 1996 and the MMP. While terms such as
'dispensary' or 'pot club' are frequently used, neither
construct is authorized under state law. Section 11362.775 of
the MMP specifies collectives and/or cooperatives as the legal
basis through which medical marijuana may be legally obtained.
However, there is no definition for them in law. All we have
in place are guidelines issued by the Attorney General in 2008
and two key elements of the MMP: (1) a prohibition against
medical marijuana profiteering in Health and Safety Code
11362.765 and (2) a prohibition against citing them within a
600 foot radius of a school in Health and Safety Code
11362.768.
"The urgency to enact a definition is further enhanced by the
dramatic growth in medical marijuana dispensaries, which has
occurred primarily since the 2009 announcement that
dispensaries operating under state laws will not be prosecuted
by the US Department of Justice. With medical marijuana sales
expected to be $1.7 billion this year, a definition is
necessary to prevent abuses in our medical marijuana program
and to help ensure that patients may obtain and use medical
marijuana in a manner consistent with the will of the voters
who approved Proposition 215 and the MMP which was enacted for
the benefit of patients and their caregivers."
3)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
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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
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
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interest. The court stated that the patient's marijuana
possession was legal under state law but 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.)
4)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. İHSC 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." İCal. 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
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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." İProposition 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
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 İCompassionate 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 İMedical 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, İHealth 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." İPeople vs. Kelly
(hereinafter Kelly) (2010) 47 Cal.4th 1008, 1044.]
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This bill specifies that local government entities may adopt
local ordinances that regulate the location, operation, or
establishment of medical marijuana cooperative or collective.
It is arguable this restriction may be used to 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.
5)Related Legislation :
a) AB 1017 (Ammiano) makes the penalty for the cultivation
of marijuana an alternate felony/misdemeanor. AB 1017 is
pending hearing by this Committee.
b) AB 223 (Ammiano) establishes a comprehensive and
multidisciplinary commission that is empowered to address
issues regarding the legality and implementation of the
Compassionate Use Act of 1996 and the state's medical
marijuana law. AB 223 is pending hearing by this
Committee.
c) AB 472 (Ammiano) provides that it shall not be a crime
for any person who experiences a drug overdose to seek
medical assistance or for any other person to seek medical
assistance for a person who overdoses. AB 472 is pending a
vote on the Assembly Floor.
6)Previous Legislation :
a) AB 390 (Ammiano) would have legalized the possession,
sale, cultivation and other conduct relating to marijuana
by persons over the age of 21. AB 390 passed this
Committee and was never heard in the Assembly Committee on
Health.
b) 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
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found valuable, to develop medical guidelines for the
appropriate administration and use of marijuana.
c) SB 791 (McPherson), of the 2001-02 Legislative Session,
would have reduced simple possession of not more than 28.5
grams of 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.
d) 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.
e) 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.
f) 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.
g) 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.
h) 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.
REGISTERED SUPPORT / OPPOSITION :
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Support
Americans for Safe Access
California NORML
Drug Policy Alliance
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744