BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1300 (Blumenfield) 0
As Amended June 1, 2011
Hearing date: July 5, 2011
Health and Safety Code
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MEDICAL MARIJUANA COOPERATIVES AND COLLECTIVES:
LOCAL REGULATION OF LOCATION, ESTABLISHMENT OR OPERATION
HISTORY
Source: Author
Prior Legislation: AB 2650 (Buchanan) - Chapter 603, Stats. 2010
SB 420 (Vasconcellos) - Chapter 875, Stats. 2003
Proposition 215, November 1996 General Election
Support: Los Angeles City Attorney; Los Angeles County Sheriff
Opposition:None known
Assembly Floor Vote: Ayes 71 - Noes 1
KEY ISSUES
SHOULD A LOCAL GOVERNMENT ENTITY BE SPECIFICALLY AUTHORIZED TO
ADOPT AN ORDINANCE REGULATING THE LOCATION, OPERATION OR
ESTABLISHMENT OF A MEDICAL MARIJUANA COOPERATIVE OR COLLECTIVE,
AS SPECIFIED?
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SHOULD A LOCAL ENTITY BE AUTHORIZED TO ENFORCE LOCAL MEDICAL
MARIJUANA ORDINANCES THROUGH CRIMINAL AND CIVIL REMEDIES AND
ACTIONS?
SHOULD A LOCAL GOVERNMENT ENTITY BE AUTHORIZED TO ENACT ANY LAW
CONSISTENT WITH THE MEDICAL MARIJUANA PROGRAM, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) specifically provide that a
local government entity may enact an ordinance regulating the
location, operation or establishment of a medical marijuana
cooperative or collective; 2) authorize local government entity
to enforce such ordinances through civil or criminal remedies
and actions; and 3) authorize a local government entity to enact
any ordinance that is consistent with the Medical Marijuana
Program, which is intended to implement the Compassionate Use
Act (medical marijuana initiative).
Existing law , the Compassionate Use Act (CUA) 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
for 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 primary caregivers who obtain and
use marijuana for medical purposes upon the recommendation of
a physician are not subject to criminal prosecution.
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:
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§ 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 recommending medical marijuana to a
patient. (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 , the Medical Marijuana Program (MMP), 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.)
Existing law provides that nothing in the MMP shall prohibit a
local governing body from adopting and enforcing laws consistent
with the MMP. (Health & Saf. Code § 11362.83.)
Existing law prohibits any medical marijuana cooperative,
collective, dispensary, operator, establishment, or provider, as
specified, from being located within 600 feet of a school.
(Health & Saf. Code § 11362.768.)
Existing law provides that the 600-feet restriction shall not
apply to medical marijuana cooperatives or dispensaries, as
specified, which are also licensed residential medical or elder
care facilities. (Health & Saf. Code § 11362.768, subd. (d).)
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Existing law provides that 660-feet restriction shall only apply
to a medical marijuana facility, as specified, authorized by law
to possess, cultivate or distribute medical marijuana that has a
storefront or mobile retail outlet that ordinarily requires a
business license. (Health & Saf. Code § 11362.768, subd. (e).)
Existing law states that a local entity can only adopt local
ordinances concerning the proximity of a medical marijuana
facility to a school that impose more restrictive requirements
than the 60 feet state standard. (Health & Saf. Code §
11362.768, subd. (f).)
Existing law does not preempt local ordinances, adopted prior to
January 1, 2011, that regulate the location or establishment of
a medical marijuana facility, as specified, as concerns
proximity to a school. (Health & Saf. Code § 11362.768, subd.
(g).)
Existing provisions of the California Constitution authorize a
city or county to make and enforce local police, sanitary and
other ordinance and regulations not in conflict with state law.
If a local ordinance is in conflict with general law, the local
law is invalid. (Cal. Const. Art. XI, § 7.)
This bill 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.
This bill provides that a local government entity may enforce a
medical marijuana ordinance through civil or criminal remedies
and actions.
This bill provides that a local government entity may enact
other laws consistent with the Medical Marijuana Program (MMP),
as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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AB 1300 ensures that communities have the tools to
protect themselves from delinquent medical marijuana
dispensary operators who constitute a public nuisance
or worse. By clarifying the scope of local authority,
local governments can work with law enforcement to
weed out bad dispensaries so that law abiding
establishments may be left alone to help sick
Californians in need.
A scan of headlines paints a controversial picture of
dispensaries. Some have been caught selling marijuana
to people not authorized to possess it, many
intentionally operate in the shadows without any
business licensure or under falsified documentation,
and some have been the scene of violent robberies and
murder. These abuses have prompted a range of
reactions from communities across California. 42
cities and 9 counties have local ordinances regulating
dispensaries, 103 cities and 15 counties have
moratoriums, and 143 cities and 12 counties have bans
in place. Adding to the controversy, members of the
growing medical marijuana industry have filed numerous
legal challenges against local ordinances, often
arguing that state laws are the only standard with
which dispensaries must comply. If this claim were
substantiated, communities would be virtually
powerless in deciding dispensary concentration,
location, crime mitigation, business licensure,
taxation, and use permit conditions. This argument is
fueled by the lack of conformity between Section
11362.768 and 11362.83 and the lack of explicit local
control language. Subsequently, in the City of LA,
the city attorney routinely faces arguments that the
city is not allowed to adopt local ordinances or
enforce them.
2. Compassionate Use Act of 1996 (Proposition 215) - Medical
Marijuana
The Compassionate Use Act (CUA) was enacted in 1996. (Health &
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Saf. Code § 11362.5.) The CUA established the right of patients
to "obtain and use" marijuana to treat specified 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.
The CUA is very general and arguably vague. As to
implementation, the initiative simply encourages the state and
federal governments to "implement a plan for safe and affordable
distribution or marijuana Ýto qualified patients]." It has been
argued that very little has been done to implement the
initiative. (McCabe, It's High Time: California Attempts to
Clear the Smoke Surrounding the Compassionate Use Act, (2004) 35
McGeorge L. Rev. 545, 546.) Instead of a comprehensive
implementation plan, numerous uncoordinated bills have been
introduced in the Legislature.
3. California Constitutional Provisions Limit the Ability of the
Legislature to Amend the CUA
Legislative Power to Amend Initiatives Generally
The California Constitution states, "The Legislature ? 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.
Legislation Affecting the Compassionate Use Act - Legislature
Cannot Limit the Amount of Medical Marijuana a Patient may
Possess
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
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ruled that the legislative restriction on the number of plants a
qualified medical marijuana patient may possess was
unconstitutional as it interfered with the rights established by
the CUA initiative. Although the Legislature may clarify or
expand the rights established in the CUA, it may not enact
legislation that interferes with those. (Id., at p. 1044.)
Health and Safety Code Section 11362.775<1> specifically
authorizes patients and primary caregivers to create and operate
collectives and cooperatives and be free from criminal
prosecution for possession, cultivation, sale or distribution
and transportation of medical marijuana. (Health & Saf. Code §
11362.775.) California appellate courts appear to indicate that
this statute is valid under the CUA as advancing the intent of
the initiative. (County of Butte v. Superior Court (2009) 175
Cal.App.4th 729, 732-733; People v. Urziceanu (2005) 132
Cal.App.4th 747, 785.)
A cooperative (co-op) is a creature of state law and subject to
detailed regulations. (Guidelines for the Security and
Non-Diversion of Marijuana Grown for Medical Use, Cal. A.G..
Aug. 2008, p. 8.) It appears that a co-op would ordinarily
require a local business license. Unlike cooperatives,
collectives are largely undefined. (Guidelines for the Security
and Non-Diversion of Marijuana Grown for Medical Use, Cal.
Attorney General. Aug. 2008, p. 8.) The application of local
ordinances to collectives could be complicated. For example,
the operators of a true collective claim that they are not
engaged in commerce and thus need not obtain a business license.
4. Local Land Use and Business Regulation
The case of Claremont v. Kruse (2009) 177 Cal.App.4th 1153
considered the validity of local land use and business
regulation ordinances as applied to a medical marijuana
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<1> Section 11362.775 is not part of the CUA itself. Rather, it
was enacted in SB 420 (Vasconcellos), Ch. 875, Stats. 2003, with
the intent of implementing the CUA.
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dispensary.<2> Darrel Kruse, the defendant, opened his business
without obtaining a permit and without directly challenging the
denial of his permit application.
The court in Kruse explained the basis for local land use
ordinances, including the deference typically granted such laws:
Absent a clear indication of preemptive intent from
the Legislature,' we presume that local regulation in
an area over which Ýthe local government]
traditionally has exercised control is not preempted
by state law. A local government's land use
regulation is one such area. When local government
regulates in an area over which it traditionally
exercised control, such as the location of particular
land uses, California courts will presume, absent a
clear indication of preemptive intent from the
Legislature, that such regulation is not preempted by
state statute. (Id., at p. 1169, citations and
quotation marks omitted.)
The court then discussed the various circumstances under which
state law preempts a local ordinance: 1) State law expressly
preempts local ordinances. 2) State law fully occupies the
field so as to establish an exclusive state concern. 3) State
law partly covers a subject in terms that establish a paramount
state interest that permits no local interference. 4) State
law partly covers a subject and the adverse effects of an
ordinance on non-residents would outweigh the benefit of a local
law.
The court found that the CUA and the MMP (Medical Marijuana
Program enacted by SB 420 in 2003) did not expressly or
impliedly preempt local zoning, land use and business licensing.
In particular, the CUA did not mention land use law, but the
CUA did expressly state that it did not supersede legislation
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<2> The opinion in Kruse described the operation as a
dispensary, although the description of the business in Kruse's
permit application was "Ýthe] Medical Cannabis Caregivers
Collective and Information Service. Medical Marijuana Plants
Cuttings, Dried Flowers and Edibles." (Id., at p. 1159.) It is
unclear whether or not Kruse operated as a true collective
within the meaning of the MMP.
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prohibiting persons from endangering others. Local ordinances
are based on the local government entities power to enact laws
to protect the public safety and welfare. (Id., at pp.
1172-1175.)
Similarly, the MMP did not mention, let alone expressly
prohibit, local regulation of medical marijuana dispensaries.
The MMP grants qualified immunity to patients who cooperatively
or collectively cultivate medical marijuana from prosecution for
possession, sale and cultivation of marijuana<3>. Further, the
MMP specifically authorizes local laws that are consistent with
its terms. (Id., at pp. 1175-1176.)
The court in Kruse then found that neither the CUA nor the MMP
impliedly preempted local land use and business regulation. The
CUA and the MMP did not mention such matters, let alone occupy
the field. Neither the CUA nor the MMP included comprehensive
regulations indicating that land use and business regulation of
medical marijuana facilities were matters of statewide concern.
Neither law partially covered land use or business regulation as
a matter of paramount state concern that could not tolerate
local action. Finally, local ordinances would not burden
transient citizens. (Id., at pp. 1176-1177.)
5. Balance Between Preserving the Integrity of the CUA Medical
Marijuana Initiative and the Power of Local Government to
Regulate Businesses and Land Use
This bill authorizes local ordinances concerning medical
marijuana cooperatives and collectives. It does not directly
regulate medical marijuana facilities. Arguably, the bill
simply restates long-standing law on the power of local entities
to adopt ordinances that protect public safety, health and
welfare.
The intersection of local ordinances and the CUA and MMP will
likely produce legal collisions. Most of these contentious
issues can only be decided in the courts. The CUA did not
provide how medical marijuana can be distributed. The MMP also
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<3> (Health & Saf. Code § 11362.775.)
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did not comprehensively address the issues about the
distribution of medical marijuana. Many local government
entities are becoming very aggressive in regulating medical
marijuana facilities, particularly so-called dispensaries that
are not mentioned in the CUA or the MMP. Any local ordinance
adopted pursuant to this bill that overly restricts patients to
organize a collective or cooperative could be found to violate
the CUA.
SHOULD STATE STATUTORY LAW SPECIFICALLY PROVIDE THAT A LOCAL
GOVERNMENT ENTITY MAY ENACT AN ORDINANCE REGULATING THE
LOCATION, OPERATION OR ESTABLISHMENT OF A MEDICAL MARIJUANA
COLLECTIVE OR COOPERATIVE?
SHOULD A LOCAL ORDINANCE REGULATING THE LOCATION, OPERATION OR
ESTABLISHMENT OF A MEDICAL MARIJUANA COLLECTIVE OR COOPERATIVE
BE ENFORCEABLE THROUGH CIVIL AND CRIMINAL REMEDIES AND ACTIONS?
6. State Law Regulating Locating of Medical Marijuana Facilities
Near Schools; Pending Senate Bill Would Prohibit Dispensaries
Near Residences
School Proximity Restrictions
Health and Safety Code Section 11362.768 prohibits location of a
storefront or mobile retail medical marijuana facility, as
defined, from being located within 600 feet of a school. This
section was enacted by AB 2650 (Buchanan), Ch. 603, Stats. 2010.
If enacted after the January 1, 2011 operative date of AB 2650,
a local ordinance regulating the proximity of such businesses to
schools is only valid if it is more restrictive than state
standard of 600. However, any local ordinance enacted prior to
January 1, 2011 is valid.
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Residential Proximity Restrictions and Regulations
SB 847 Correa - now pending in Assembly Local Government - would
prohibit a storefront or mobile retail medical marijuana
facility, as defined, from being located within 600-feet of a
residential zone or residential use. The bill would allow a
local government entity to enact an ordinance concerning
establishment of medical marijuana establishments in relation to
residences. The local ordinance may be either more restrictive
or less restrictive than state law.
Coordinating this Bill with Existing Restrictions on Medical
Marijuana Facilities
This bill grants general authority to a local government entity
to enact ordinances on the location, operation or establishment.
How this bill would be interpreted in light of the current law
on school proximity and the pending bill on residential
proximity will depend on statutory construction or
interpretation by the courts. A basic rule of statutory
construction provides that where there is a specific law and a
general law on the same subject, the specific law trumps. Thus,
any local ordinance enacted under this bill could not contradict
Health and Safety Code Section 11362.768, which sets very
specific rules for state and local laws governing the proximity
of medical marijuana facilities to school. If SB 847 (Correa) -
restrictions on locations of medical marijuana facilities in
proximity to residences - is enacted in its current form, there
would be no conflict between SB 847 and this bill.
7. Los Angeles Ordinance Illustrates the Difficulty of Regulating
Medical Marijuana
Terms of the Ordinance
The Los Angeles City Council adopted a medical marijuana
dispensary ordinance in January, 2010. Two of the main reasons
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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.
Court Challenges
It appears that numerous challenges to the ordinance were filed
in Los Angeles courts. An April 21, 2011, article in the Los
Angeles Times noted:
The next round of the costly, drawn-out legal brawl
over how to control medical marijuana dispensaries in
Los Angeles has begun with two new lawsuits
challenging the city's latest ordinance. The
lawsuits, filed in Los Angeles County Superior Court,
follow scores of other suits that stymied the city's
fitful attempts to crack down on an unknown number of
renegade dispensaries. The new ones could launch
another series of judicial hearings and thwart the
city's bid to enforce its ordinance.
Some of the oldest medical marijuana collectives in
Los Angeles sued on April 13 to overturn the
ordinance, which will choose the dispensaries to be
allowed in a lottery, a process the lawsuit mocks as
"a euphemism for a municipal game of 'Russian
Roulette.'" The 21 dispensaries suing the city are
among those the City Council let operate when it
adopted a moratorium on new stores in 2007. The
city's first ordinance would have allowed them to stay
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open if they complied with restrictions on locations.
But a judge ruled that key aspects of the law were
unconstitutional, and the City Council passed a second
ordinance that relies on a random drawing to select
100 dispensaries.
ARE CHALLENGES TO THE LOS ANGELES ORDINANCE STILL BEING
LITIGATED?
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