BILL ANALYSIS Ó
AB 2312
Page 1
Date of Hearing: April 10, 2012
Consultant: Jesse Stout
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2312 (Ammiano) - As Introduced: February 24, 2012
SUMMARY : Authorizes local taxes on medical cannabis up to 2.5%.
Creates a nine-member Board of Medical Marijuana Enforcement
(BMME) to regulate the medical cannabis industry and collect
fees from medical cannabis businesses to be deposited in a new
Medical Marijuana Fund. Specifically, this bill :
1)Establishes the Medical Marijuana Regulation and Control Act.
2)Declares legislative intent to accomplish all of the
following:
a) To establish a statewide system for regulating and
controlling medical marijuana activities by creating a
state board to enact and enforce regulations governing the
cultivation, processing, manufacturing, testing,
transportation, distribution, and sale of medical
marijuana.
b) To allow cities and counties to enact reasonable zoning
regulations or other restrictions applicable to the
cultivation, processing, manufacturing, testing, and
distribution of medical marijuana based on local needs.
c) To prohibit the issuance and use of fraudulent or forged
physician's recommendations for medical marijuana.
d) To establish the BMME to be located within the
Department of Consumer Affairs to provide a governmental
agency that will ensure the strict, honest, impartial, and
uniform administration and enforcement of the medical
marijuana laws throughout California.
e) To fulfill the promise of the Compassionate Use Act of
1996 to "implement a plan for the safe and affordable
distribution of marijuana to all patients in medical need
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of marijuana."
f) To support the creation of a more appropriate schedule
for marijuana that recognizes its medical use in the State
of California.
g) To reduce the cost of medical marijuana enforcement by
providing law enforcement guidelines to more easily
determine whether or not a person is acting in conformance
with the state's medical marijuana laws and by providing
courts and prosecutors flexibility in the punishment of
minor marijuana offenses.
3)Provides that qualified patients, persons with valid
identification cards, and the designated primary caregivers of
qualified patients and persons with identification cards, may
associate within the State of California as collectives,
cooperatives, and other business entities to cultivate,
acquire, process, possess, transport, test, sell and
distribute marijuana for medical purposes and shall not be
subject to arrest, prosecution, or sanctions under provisions
of law related to unauthorized possession, cultivation,
possession for sale, transportation, sale, import, giving
away, manufacturing, opening or maintaining unlawful places,
renting or leasing real property for the unlawful manufacture
or sale of controlled substances, or nuisance and abatement on
the basis of that fact, unless those persons are not in
compliance with the registration requirements provided in this
bill.
4)States that the provisions in this bill apply to all members
of an entity formed pursuant to these provisions regardless of
whether those members contribute to any of the activities of
the entity.
5)Adds a person who knowingly produces, issues, utilizes, or
sells a falsified, forged, or fraudulent physician's
recommendation for medical marijuana to the list of persons
subject to misdemeanor penalties under the Compassionate Use
Act.
6)Clarifies that nothing in this bill shall prevent a city or
other local governing body from adopting local ordinances that
regulate the location, operation, or establishment of a
medical marijuana cooperative or collective, consistent with
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the provisions of this bill.
7)Establishes the Medical Marijuana Regulation and Control Act.
8)Defines the following:
a) "Board" is the BMME.
b) "Executive director" is the Executive Director of the
BMME.
c) "Financial institution" is a bank, savings and loan
association, or credit union chartered under the laws of
California or the United States.
d) "Fund" is the Medical Marijuana Fund.
e) "Mandatory registrant" is a person required to register
with the BMME pursuant to the provisions of this article.
f) "Mandatory registration" is a registration issued by the
BMME pursuant to this article.
g) "Medical marijuana dispensary" is any facility,
building, structure, or location where medical marijuana is
sold to qualified patients, primary caregivers, or persons
with identification cards issued by the State Department of
Health Services identifying a person to engage in medical
use of marijuana.
h) "Medical marijuana facility" is any facility, building,
structure, or location where medical marijuana is grown,
processed, stored, manufactured, tested, or sold, other
than a private residence where medical marijuana is grown
for personal use and not for sale.
i) "Person" includes any individual, partnership, joint
venture, association, limited liability company,
corporation, estate, trust, receiver, syndicate, or any
other group or combination thereof acting as a unit.
9)States that this article shall not apply to, and shall have no
diminishing effect on, the rights and protections currently
granted to individual patients and primary caregivers pursuant
to the Compassionate Use Act.
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10)Requires a medical marijuana facility to operate in
accordance with this article. Individual patients and
caregivers cultivating marijuana at their private residences
in accordance with local zoning and building codes who do not
sell or charge for the cultivation of marijuana are not
considered medical marijuana facilities, and are exempt from
mandatory registration.
11)Declares legislative intent that each city, county, and city
and county permit the development of sufficient numbers and
types of medical marijuana facilities as are commensurate with
local needs, consistent with the provisions of this article.
12)States that the provisions of this article shall preempt all
local ordinances or regulations relating to the regulation and
control of medical marijuana and shall apply equally to a
charter city or county, and a city or county shall not
prohibit the operation of persons registered pursuant to this
article or restrict their location or operation to frustrate
the provisions of this article, to render the application or
enforcement of this article impractical or impossible, or to
restrict the location of medical marijuana dispensaries so as
to authorize fewer than one medical marijuana dispensary per
50,000 residents, except:
a) A city or county with a population of at least 50,000
may prohibit the establishment of medical marijuana
dispensaries within its jurisdiction, or limit the number
of allowed medical marijuana dispensaries to a number below
one per 50,000 residents, if an ordinance or regulation
authorizing that restriction has been approved by the
voters of the city, county, or city and county. In no
event may a city, county, or city and county enact
legislation that impairs the rights granted to qualified
patients and their caregivers.
b) A city or county with a population of less than 50,000
residents may prohibit the establishment of a medical
marijuana dispensary within its jurisdiction provided that
the legislative body of a city or county make a written
finding to the board supported by evidence adduced during
at least one public hearing that medical marijuana is
reasonably available to its residents by other means.
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c) A legislative body of a city or county with existing
medical marijuana regulations may provide to the BMME a
list of regulated persons that it finds to be in good
standing under its local medical marijuana regulations in
force as of the effective date of the act adding this
article, which shall be accompanied by a certified copy of
any ordinance regulating the location or operation of
medical marijuana facilities in that jurisdiction. These
persons shall automatically be deemed successful mandatory
registrants for purposes of this article, and shall be
exempt from renewal procedures for three years from the
effective date of the act adding this article. Any person
found to not be in good standing shall not be deemed
successful mandatory registrants for purposes of this bill.
13)States that if a city or county does not enact a medical
marijuana dispensary zoning ordinance, medical marijuana
dispensaries in that jurisdiction shall be wholly regulated by
the BMME pursuant to this article, and medical marijuana
dispensaries that are mandatory registrants may locate in that
jurisdiction in any location that the BMME finds to be
appropriately zoned, subject to the restrictions on proximity
to schools.
14)Creates within the Department of Consumer Affairs a BMME,
administered by a governing body as prescribed, and a civil
executive officer appointed by the Director of Consumer
Affairs who shall be known as the "Executive Director of the
BMME".
15)Provides that the funds for the establishment and support of
the BMME shall be advanced as a loan by the Department of
Consumer Affairs and shall be repaid by the initial proceeds
from fees collected from processing applications,
registrations, notices or reports required to be submitted to
the BMME.
16)Requires the governing body of the BMME to consist of the
following nine members: one licensed physician appointed by
the Governor, one full-time peace officer appointed by the
Governor, three California residents appointed by the
Governor, one California resident appointed by the Speaker of
the Assembly, one California resident appointed by the Senate
Committee on Rules, one medical marijuana patient advocate
appointed by the Speaker of the Assembly, and one qualified
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medical marijuana patient appointed by the Senate Rules
Committee.
17)States that in making these appointments, the Senate
Committee on Rules and the Speaker of the Assembly shall make
good-faith efforts to ensure that their appointments reflect
the economic, social, and geographic diversity of California.
18)Provides that the authority responsible for appointing a
member of the governing body of the BMME shall appoint each
member within 90 days of the effective date of this bill.
19)States that a majority of the total appointed membership of
the governing body of the BMME shall constitute a quorum. Any
action taken by the governing body of the BMME requires a
majority vote of the members present at the meeting of the
governing body of the BMME, with a quorum being present,
unless otherwise specifically provided.
20)Mandates the governing body of the BMME to elect a
chairperson and vice chairperson from among its members and
meet at least quarterly on call of the executive director, the
chairperson, or three members of the governing body of the
BMME.
21)States that the terms of the members of the governing body of
the BMME shall be three calendar years. No member shall serve
more than two consecutive full terms. If a vacancy occurs
prior to the expiration of the term for the vacated seat, the
appointing authority of that vacant seat shall appoint a
replacement member for the remainder of the unexpired term on
or before 30 days after the occurrence of the vacancy.
22)Requires the BMME to perform all of the following:
a) Approve or deny mandatory registration applications for
the cultivation, processing, manufacturing, testing,
transportation, distribution, and sale of medical marijuana
as provided by state law;
b) Suspend, fine, restrict, or revoke registration based
upon a violation of these provisions, or a rule or
regulation promulgated pursuant to them;
c) Impose penalties authorized by this article or by any
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rule or regulation promulgated pursuant to this article;
d) Adopt, amend, and rescind reasonable regulations,
special rulings, and findings as necessary for the
regulation and control of the cultivation, processing,
manufacturing, testing, transportation, distribution, and
sale of medical marijuana, and to govern the procedures of
the BMME to exercise its powers and perform its duties;
e) Hold public hearings to hear and decide any appeals from
denials of a mandatory registration application, and any
complaints against a registered person;
f) Administer oaths and issue subpoenas to require the
presence of individuals and the production of papers,
books, and records necessary to the determination of any
hearing. Any such hearing shall be conducted in accordance
with Government Code Section 11500 et seq.;
g) Maintain the confidentiality of any information obtained
from a registered person related to medical-marijuana
patients or caregivers in compliance with the federal
Health Insurance Portability and Accountability Act
(HIPPA), the Confidentiality of Medical Information Act
(Civil Code Section 56 et seq.) , and the Insurance
Information and Privacy Protection Act (Insurance Code
Section 791 et seq.);
h) Develop any necessary forms, identification cards, and
applications for the administration of this article or any
of the rules or regulations promulgated pursuant it;
i) Develop zoning standards that shall be applicable if a
city or county does not enact a medical marijuana
dispensary zoning ordinance;
j) Oversee operation of the Medical Marijuana Fund; and
aa) Establish processing fees for all applications,
registrations, notices, or reports required to be submitted
to the BMME. Such fees shall be deposited into the Medical
Marijuana Fund. The amount of fees shall reflect the
BMME's direct and indirect costs to administer and enforce
the provisions of this article, and shall be assessed on a
sliding-fee scale to reflect the projected revenue of the
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particular registrant.
23)Requires the regulations to be promulgated by the BMME to
include:
a) Procedures and grounds for issuing, renewing, denying,
suspending, issuing fines in connection with, restricting,
or revoking a mandatory registration;
b) Civil penalties, including fines, for violating the
provisions of this article;
c) Prohibition of misrepresentation and unfair practices;
d) Best practices guiding advertisements promoting the
purchase of medical marijuana, and relating to its
labeling, packaging, and testing;
e) Security requirements for premises subject to mandatory
registration;
f) Regulations for the storage and transportation of
medical marijuana;
g) Requirements for waste disposal and recycling;
h) Guidelines regarding cultivation, including use of
pesticides and fungicides and the reduction of
environmental impacts;
i) Establishment of exemptions from registration or reduced
fees for non-commercial collectives, non-profit
registrants, and other qualified persons;
j) Protocols to prevent unlawful diversion of marijuana;
and
aa) Any other regulations in furtherance of this article.
24)States that the BMME is not authorized to set prices for
medical marijuana.
25)Creates the Medical Marijuana Fund within the State Treasury,
and specifies that all moneys collected under these provisions
shall be deposited into the fund, as well as any interest and
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dividends earned on the money in the fund.
26)Establishes the Medical Marijuana Enforcement Penalty Account
(MMEPA) within the Medical Marijuana Fund, which is to receive
the fines collected when a medical marijuana facility operates
without an approved mandatory registration, and any other
penalty amounts levied under these provisions.
27)Appropriates moneys in the fund, except for moneys in the
MMEPA, continuously and without regard to fiscal year to the
BMME solely to fully fund all costs associated with
implementing, enforcing, and administering this bill.
28)Requires the BMME to reimburse the Department of Consumer
Affairs for administrative expenses.
29)States that the BMME is subject to all applicable provisions
of Division 1 of the Business and Professions Code.
30)Provides that the executive director shall appoint the BMME's
employees, except as specified. All heads of divisions and
committees and other employees shall be responsible to the
executive director for the proper carrying out of their duties
and responsibilities.
31)Allows the executive director to bring an action to enjoin a
violation or threatened violation of any provision of this
bill in the county of the violation.
32)Prohibits a medical marijuana facility from operating without
state-approved registration. Operation of a medical marijuana
facility without an approved mandatory registration may result
in fines of up to $25,000, and the destruction of any
marijuana being cultivated or possessed.
33)Authorizes the BMME to establish various classes or types of
registrations for specific medical marijuana-related
activities.
34)Requires that a mandatory registration application or renewal
be approved unless the BMME determines that any of the
following are true:
a) An applicant, or the medical marijuana facility location
for which the applicant is applying for mandatory
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registration, fails to meet the requirements of this bill
or any regulation promulgated pursuant it;
b) An applicant is under 21 years of age;
c) An applicant has failed to provide information
reasonably necessary for completion of registration or has
knowingly provided false information on the application
form;
d) An applicant, or any of its officers or directors, has
been convicted in the previous five years of a violent
felony, as specified in Penal Code Section 667.5, a serious
felony, as specified in Penal Code Section 1192.7, a felony
involving fraud or deceit, or any other felony that, in the
BMME's estimation, would impair the applicant's ability to
appropriately operate a medical marijuana facility;
e) An applicant is a licensed physician making patient
recommendations for medical marijuana; or
f) An applicant, or any of its officers or directors, has
been sanctioned by the BMME for operating an unregistered
medical marijuana facility or has had a mandatory
registration revoked in the previous three years.
35)Mandates the BMME to make mandatory registration applications
available by July 1, 2013.
36)Requires the BMME to thoroughly investigate to determine
whether the applicant or the premises meets specified
criteria.
37)Requires the BMME to deny an application for registration if
either the applicant or the premises do not meet the specified
eligibility criteria.
38)Requires the BMME to approve or deny applications within 180
days after its filing; and if the BMME fails to act within
this time the application shall be deemed approved.
39)Provides that each mandatory registration application
approved by the BMME is separate and distinct, and that an
applicant may apply for a mandatory registration in more than
one class of specific medical marijuana activities.
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40)Provides that approved registrations are valid for a period
not to exceed two years unless suspended or revoked.
41)Requires the BMME to notify a registrant 90 days before a
registration's expiration by first class mail.
42)Requires persons applying for the renewal of existing
registrations to apply at least 60 days before expiration; the
BMME has discretion to waive this time requirement.
43)Requires the BMME to act on timely renewal applications at
least 10 days prior to expiration.
44)Allows a medical marijuana facility operating in conformance
with local zoning requirements as of this bill's effective
date to continue its operations until its application for
mandatory registration has been approved or denied.
45)States that a person whose registration application has been
approved shall not be subject to arrest, prosecution, or other
criminal, civil, or administrative sanctions under state or
local law for approved actions in accordance with his or her
registration application.
46)Provides that nothing in this bill shall prevent a city,
county, or city and county from enforcing a zoning ordinance
or law of general application, except as specified in this
bill.
47)Prohibits state or local officials from spending any funds to
assist federal authorities in enforcing marijuana prohibitions
with regard to activities carried out by persons complying
with this bill. Nothing in this bill shall be construed to
limit a law enforcement agency's ability to investigate
unlawful activity related to a mandatory registrant.
48)Authorizes a financial institution to provide lending
services to persons who mandatory registration applications
have been approved and to secure any such loans to those
persons with assets of those persons. Any financial
institution owning or possessing medical cannabis or warehouse
receipts as security for an obligation or as a result of
enforcement of a security interest may, after the BMME has
given permission, sell the medical cannabis or warehouse
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receipts to a registrant authorized to sell for resale that
medical cannabis or those warehouse receipts.
49)Authorizes county board of supervisors to levy, increase, or
extend one or more transactions and use taxes on the sale of
medical marijuana or medical marijuana-infused products at a
rate of ____%, or a multiple thereof, if approved by
two-thirds of the members of the BMME of supervisors and by a
majority of the voters of that county. The authority of a
city to impose transactions and use taxes under this section
shall not exceed the rate of 2.5%.
50)Authorizes governing bodies of cities to levy, increase, or
extend a transaction and use tax at a rate of ____%, or a
multiple thereof, if approved by two-thirds of the members of
the governing body and by a majority of the voters of that
city. The authority of a city to impose transactions and use
taxes under this section shall not exceed the rate of 1%.
51)Provides that the provisions of this bill are severable. If
any provision of this bill or its application is held invalid,
this invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application.
EXISTING LAW :
1)States that 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 cannabis 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 cannabis in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which
cannabis provides relief.
b) To ensure that patients and their primary caregivers who
obtain and use cannabis for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
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c) To encourage the Federal and State governments to
implement a plan to provide for the safe and affordable
distribution of cannabis to all patients in medical need of
cannabis. İHealth and Safety Code (HSC) Sections
11362.5(b)(1)(A) to (C).]
2)States that nothing in this section shall be construed to
supersede legislation prohibiting persons from engaging in
conduct that endangers others, nor to condone the diversion of
cannabis for nonmedical purposes. İHSC Section
11362.5(b)(2).]
3)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right
or privilege, for having recommended cannabis to a patient for
medical purposes. İHSC Section 11362.5(c).]
4)Defines "primary caregiver" as the individual designated by a
patient who has consistently assumed responsibility for the
housing, health, or safety of that person. İHSC Section
11362.5(e).]
5)States existing law, relating to the possession and the
cultivation of cannabis, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates
cannabis for the personal medical purposes of the patient upon
the written or oral recommendation or approval of a physician.
İHSC Section 11362.5(d).]
6)Requires the Department of Public Health to establish and
maintain a voluntary program for qualified patients to apply
for identification cards, and county health departments to
issue identification cards to qualified patients and their
caregivers. İHSC Sections 11362.71(a) and (b)].
7)Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of cannabis, absent evidence of
fraud. İHSC Section 11362.71(e).]
8)Provides that patients and caregivers may possess and
cultivate an amount of cannabis reasonably necessary for the
patient's current medical needs, notwithstanding any limits
set by the Legislature that impermissibly amend the
Compassionate Use Act. İPeople v. Kelly (2010) 47 Cal.4th
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1008, 1043.]
9)Requires a person who seeks an identification card to pay a
fee and provide to the county health department the person's:
name, proof of residency, written doctor's recommendation,
doctor's name and contact information, caregiver's name and
duties, and patient's and caregiver's government-issued photo
identification card. İHSC Section 11362.715(a).]
10)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing: a
unique user identification number, an expiration date, the
county health department's name and telephone number, photo
identification of the cardholder, and a toll-free Department
of Public Health telephone number enabling state and local law
enforcement officers to immediately verify the card's
validity. İHSC Section 11362.735(a).]
11)Prohibits state or local law enforcement officers from
refusing to accept an identification card unless the officer
has reasonable cause to believe that the card is being used
fraudulently or its information is false or fraudulent. İHSC
Section 11362.78.]
12)Provides that qualified patients, persons with valid
identification cards, and their designated primary caregivers
who associate in order collectively or cooperatively to
cultivate cannabis are not subject to criminal liability on
that basis. İHSC Section 11362.775.]
13)Prohibits medical cannabis dispensaries that possess,
cultivate, or distribute cannabis from being located within a
600-foot radius of a school, and authorizes cities and
counties to further restrict the locations of medical cannabis
collectives. (HSC Section 11362.768.)
14)Provides a legal defense for medical cannabis collectives and
cooperatives to charges of cannabis distribution. İPeople v.
Urziceanu (2005) 132 Cal.App.4th 747.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Just over 15
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years ago, the voters of California spoke loud and clear
through the passage of Prop. 215 that they wanted to establish
and ensure the safe, affordable access of medical cannabis to
patients. It was the first such law of its kind in the nation
but since 1996, fifteen other states and the District of
Columbia have joined California and passed medical cannabis
laws. But while the initiative called for an effective
regulatory framework, the Legislature has only enacted SB 420,
which calls for voluntary patient and caregiver identification
cards with certain limits, leaving may areas undefined; this
ambiguity is causing a lot of confusion and problems. Many
counties with an active medical cannabis community, such as
San Francisco and Alameda, have had strong regulatory systems
in place for some time; but unfortunately, not every county or
jurisdiction has enacted them. It is now time to end this
public policy grey area with statewide regulation for medical
cannabis.
"AB 2312 creates an oversight body within the Department of
Consumer Affairs to oversee all parts of this industry, except
for individual patients. Growers, processors, manufactures,
testing and labeling providers, transporters, retailers, and
delivery services will all be required to register with the
state. This information will ensure that every aspect of this
chain will be tracked, from growers all the way to storefront
dispensaries, creating a network of accountability and
transparency that does not exist today. Providers who are
engaged in above-board operations will have nothing to fear as
this will allow law enforcement to effectively utilize their
limited resources by focusing their efforts on the remaining
bad actors.
"There is no doubt that an industry exists around medical
cannabis but the point of regulation is to bring these
activities above board to ensure safe and effective access
with clear rules for those engaged in this industry. Only by
regulating it through AB 2313 will California be able to
regain control. Strict regulation of medical cannabis
benefits everyone - patients, providers, doctors and law
enforcement.
"The worst public policy choice for California is to sit idly by
doing nothing and let this failed 'war on medical cannabis'
continue unchecked. Failed prohibition policies have been
proven time and again to cause more harm than good, draining
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our limited public resources and encouraging black market
problems, such as robberies and violence.
"It is time for the Legislature to fix these ambiguities,
provide the safe and effective access to medical cannabis that
Prop. 215 intended, prevent diversion for non-medical uses,
and regulate and control an industry that has the clear
support of the people of California."
2)Medical Cannabis Law at Present : California voters passed
Proposition 215, the Compassionate Use Act (CUA), in 1996.
The CUA prohibits prosecution for growing or using cannabis of
Californians who have the oral or written recommendation of
their doctors and these patients' caregivers. The Legislature
sought to clarify this initiative in 2003 with SB 420, the
Medical Marijuana Program Act (MMPA). The MMPA offered a
voluntary identification card which patients and caregivers
could obtain that would additionally protect them from arrest,
and set limits on the amounts of cannabis to be legally grown
and possessed. In 2010, the California Supreme Court ruled in
People v. Kelly supra that the MMPA section limiting
quantities of cannabis is unconstitutional because it amends a
voter initiative. Additionally, the U.S. Supreme Court ruled
in Gonzales v. Raich (2005) 545 U.S. 1 that the Federal
Government can enforce cannabis prohibition despite state
medical cannabis laws.
Now, California patients who obtain a physician's oral or
written recommendation are protected from prosecution for
possessing or cultivating an amount of cannabis reasonably
related to their current medical needs, as are these patients'
caregivers. Patients and caregivers who obtain a state MMP
identification card from their county health department are
protected from arrest and prosecution for possessing,
transporting, delivering, or cultivating cannabis. Patients
and caregivers who engage in these activities remain liable
for federal arrest and prosecution, and those who operate
dispensaries face frequent federal enforcement actions.
Meanwhile, many city and county officials have expressed
confusion about the scope of state medical cannabis law, and
some have passed ordinances that have been overturned by the
courts. For example, the City of Fresno bans dispensaries
altogether; although last month in Fresno County a permitting
structure went into effect that is so strict no dispensaries
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have applied. The new county ordinance bans dispensaries in
unincorporated areas, greatly limits cultivation locations,
and requires cultivators to disclose patient information and
comply with law enforcement searches. Two lawsuits are
currently pending in Fresno County Superior Court to challenge
the ordinance, one claiming it is preempted by state law and
the other claiming it is preempted by federal law. İTwo
lawsuits challenge Fresno Co. medical marijuana rules, The
Fresno Bee (March 20, 2012).]
3)This Bill Would Have the Effect of Creating Uniform
Regulations : First, this bill expressly authorizes patients
to associate to sell medical cannabis, immunize them from
arrest for doing so, and defines a "dispensary" as a place
where medical cannabis is sold. This change would resolve
most of the confusion and controversy in Fresno, San
Francisco, and other cities and counties where elected
officials have expressed contradictory opinions about the
legality of activities related to medical cannabis.
Second, this bill creates a regulatory board centralized in the
state government and specifically task the board with
approving and denying dispensaries' registration applications,
and preempting local medical cannabis regulations. This
change would have the effect of turning California's patchwork
of medical cannabis ordinances into a unified, blanket law.
This bill provides specificity on whether local governments
can prohibit dispensaries altogether: cities and counties
must permit no fewer than one dispensary per 50,000 residents
absent explicit voter disapproval. Thus, large cities such as
Fresno will be granted clarity on whether or not state law
allows dispensary bans.
Third, this bill speaks to the question of disparate taxation
levels levied by cities and counties. Currently, some cities
do not tax medical cannabis separately from their regular
municipal sales taxes. Some cities have taxes rates similar
to the one proposed in this bill (such as Berkeley at 2.5%),
whereas some cities have much higher taxes (such as San Jose,
currently at 7% and authorized to rise as high as 10%). This
bill establishes a uniform, statewide maximum for a 2.5%
transactions and use tax on medical cannabis and medical
cannabis-infused products, clearing up discrepancies among
medical cannabis tax rates across city and county lines.
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4)This Bill Does Not Conflict with Proposition 215 : The voters
who approved the CUA endorsed the drafters' intent "to ensure
that patients and their primary caregivers who obtain and use
cannabis for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or
sanction." (HSC Section 11362.5.) The Legislature previously
sought to regulate medical cannabis by passing SB 420
(Vasconcellos), Chapter 93, Statutes of 2003, which limited
the quantities of cannabis patients may possess. In People v.
Kelly, the Supreme Court found that a law placing a greater
burden on cannabis patients than the CUA did has an
unconstitutional amendment of the CUA. However, no part of
this bill places a greater burden on patients than the CUA
did. Rather, by providing for the uniform regulation of
medical cannabis, this bill makes the rules clearer for both
law enforcement and the medical cannabis community, resulting
in fewer arrests.
5)Pending Litigation Could Conflict with this Bill : The
California Supreme Court has recently granted review in four
cases related to the rights of medical cannabis patients and
dispensaries: Pack v. City of Long Beach (S197169) review
granted Jan. 18, 2012, formerly at (2011) 199 Cal.App.4th
1070; City of Riverside v. Inland Empire Patient's Health and
Wellness Ctr. (S198638), review granted Jan. 18, 2012,
formerly at (2011) 200 Cal.App.4th 885; Traudt v. City of Dana
Point (S197700) review granted Jan. 18, 2012, formerly at
(2011) 199 Cal.App.4th 886; and People v. G3 Holistic
(S198395), review granted Jan. 18, 2012, (non-published
opinion E051663). These cases present issues concerning
preemption, under federal or state law, of local ordinances
regulating or banning the operation of medical marijuana
dispensaries and related activities, and standing to challenge
such ordinances. Since the Supreme Court will soon rule on
the legality of regulations governing dispensaries, parts of
this bill could possibly be preempted.
6)Arguments in Support : According to Americans for Safe Access ,
"Research conducted by ASA and our experience to date show us
that sensible regulations preserve safe access to medical
cannabis, while reducing crime and complaints around
storefront facilities maintained by legally organized and
operated patient cooperatives and collectives. By
establishing uniform standards and facilitating reasonable
local regulations, AB 2312 will help propagate the proven
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benefits of regulation statewide. Additionally, the bill will
provide overdue clarity for local lawmakers, law enforcement,
and patients who cultivate or provide medical cannabis."
7)Arguments in Opposition : According to the California
Taxpayers Association , "CalTax is opposed to AB 2312 because
it is proposed as a majority vote bill, in violation of
Proposition 26's two-thirds vote requirement. The state
constitution requires a super majority vote whenever a
proposal may result in an individual or entity paying a higher
tax. Also, this bill has the potential to allow local
governments to impose transactions (sales) and use taxes
beyond the two percent local rate limitation currently
authorized by existing law. Each county and city could impose
a tax that exceeds the tax rate limit."
8)Related Legislation :
a) AB 2465 (Campos) makes medical cannabis patient and
caregiver identification cards mandatory, requires patients
and caregivers to report where they intend to cultivate
cannabis, and requires medical cannabis dispensaries to
keep copies of members' identification cards. AB 2465 is
being heard by this Committee today.
b) AB 1975 (Halderman) requires the Department of Pesticide
Regulation to develop guidelines to enforce state pesticide
regulations on medical cannabis cultivation. AB 1975 is
pending referral by the Assembly Rules Committee.
c) AB 1300 (Blumenfield), Chapter 196, Statutes of 2011,
authorizes local governments to adopt ordinances regulating
the location, operation, or establishment of medical
cannabis dispensaries.
d) SB 847 (Correa) would have prohibited medical cannabis
dispensaries from being located within 600 feet of a
residential zone and authorized cities and counties to
enact different standards for dispensaries' distances from
residential zones. SB 847 was vetoed.
9)Prior Legislation :
a) AB 2650 (Buchanan), Chapter 603, Statutes of 2010,
prohibits any medical cannabis dispensary from being
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located within 600 feet of a school, and authorizes local
governments to further restrict dispensaries' locations.
b) People v. Kelly, 47 Cal.4th 1008 (2010), found
unconstitutional SB 420's restriction on the amount of
cannabis a patient may possess and cultivate, and found
that patients and caregivers may possess and cultivate an
amount of cannabis reasonably necessary for the patient's
current medical needs.
c) 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 cannabis related offenses if the target is
a qualified patient. AB 2743 died on the Assembly's
Inactive File.
d) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
established a voluntary registry identification card system
for patients and their caregivers, and limited the amount
of cannabis patients and caregivers may possess.
e) 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 cannabis and, if
found valuable, to develop medical guidelines for the
appropriate administration and use of cannabis.
f) Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
cannabis by a patient or a patient's primary caregiver with
a physician's written or oral recommendation or approval.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and
Municipal Employees (AFSCME), AFL-CIO
Americans for Safe Access
California NORML (National Organization for the Reform of
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Marijuana Laws)
Drug Policy Alliance
Legal Services for Prisoners with Children
United Food & Commerical Workers Western States Council
Opposition
California District Attorneys Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs' Association
California Taxpayers Association
International Faith Based Coalition
Analysis Prepared by : Jesse Stout / PUB. S. / (916) 319-3744