Amended in Senate September 6, 2013

Amended in Senate August 13, 2013

Amended in Assembly April 29, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 604

Introduced by Assembly Member Ammiano

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(Principal coauthors: Senators Steinberg and Leno)

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February 20, 2013

begin delete An act to add Section 806 to the Evidence Code, and to add Sections 686.3 and 1127i to the Penal Code, relating to criminal investigations. end delete begin insert An act to amend Sections 2220.05, 2242, and 2264 of, and to add Chapter 18 (commencing with Section 26000) to Division 9 of, the Business and Professions Code, and to amend Section 11362.7 of, and to amend and repeal Section 11362.775 of, the Health and Safety Code, relating to medical cannabis, and making an appropriation therefor. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 604, as amended, Ammiano. begin delete Criminal investigations: eyewitness identification. end delete begin insert Medical cannabis: state regulation and enforcement. end insert

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Existing law, the Compassionate Use Act of 1996, an initiative measure enacted by the approval of Proposition 215 at the November 6, 1996, statewide general election, authorizes the use of marijuana for medical purposes. Existing law enacted by the Legislature, commonly referred to as the Medical Marijuana Program Act, requires the establishment of a program for the issuance of identification cards to qualified patients so that they may lawfully use marijuana for medical purposes, and requires the establishment of guidelines for the lawful cultivation of marijuana grown for medical use.

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The Medical Practice Act provides for the regulation and licensing of physicians and surgeons by the Medical Board of California and requires the board to prioritize investigations and prosecutions of physicians and surgeons representing the greatest threat of harm, as specified. Existing law identifies the cases that are to be given priority, which include cases of repeated acts of excessively prescribing, furnishing, or administering controlled substances without a good faith prior examination of the patient. Existing law makes it unprofessional conduct for a physician and surgeon to prescribe, dispense, or furnish dangerous drugs without an appropriate prior examination and medical indication. Existing law also makes it unprofessional conduct to employ, aid, or abet an unlicensed person in the practice of medicine. Existing law generally makes any person who violates these provisions guilty of a misdemeanor.

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This bill would enact the Medical Cannabis Regulation and Control Act and would create the Division of Medical Cannabis Regulation and Enforcement within the Department of Alcoholic Beverage Control, to be administered by a person exempt from civil service who is appointed by the Director of Alcoholic Beverage Control. The bill would grant the department the exclusive power to register persons for the cultivation, manufacture, testing, transportation, storage, distribution, and sale of medical cannabis within the state subject to specified exemptions for a city or county. The bill would provide that the director and persons employed by the department to administer and enforce its provisions are peace officers. The bill would prescribe requirements for the issuance, renewal, suspension, and revocation of mandatory commercial registrations and fees in relation to these activities. The bill would permit the department to assist statewide taxation authorities in the development of uniform policies for the taxation of mandatory commercial medical cannabis registrants and to assist in the development of regulation in connection with work safety in this industry. The bill would authorize the division to establish a grant program for the purpose of funding medical cannabis regulation and enforcement.

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The bill would establish the Medical Cannabis Regulation Fund and would require deposit of fees into the fund. The bill would continuously appropriate moneys within the fund to the division for the purposes of administering the program. The bill would require the deposit of penalty money into the General Fund.

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The bill would require the department, on or before January 1, 2015, to issue regulations as necessary for the implementation and enforcement of mandatory commercial medical cannabis registration, as specified, and would prescribe requirements for provisional registrations to be operative January 1, 2014. The bill would prohibit approval of a mandatory commercial registration for specified reasons, including if a licensed physician making patient recommendations for medical cannabis is an interested party in the proposed operation, and would prohibit a physician from recommending medical cannabis to a patient while he or she is a mandatory commercial registrant, or associated, as specified, with a mandatory commercial registrant. The bill would provide that certain patient and caregiver information is excluded from disclosure to the public. The bill would provide that the actions of a mandatory commercial registrant or provisional registrant, its employees, and its agents that are permitted pursuant to a valid mandatory commercial registration issued by the division and that are conducted in accordance with the requirements of the act are not unlawful, as specified. The bill would provide a similar immunity for a property owner who allows his or her property to be used by a mandatory commercial registrant or provisional registrant.

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The bill would require the department to work in conjunction with law enforcement entities throughout the state to implement and enforce the rules and regulations regarding medical cannabis and to take appropriate action against businesses and individuals that fail to comply with the law. The bill would prohibit, on and after January 1, 2015, a person other than a mandatory commercial registrant from selling cannabis or cannabis products or performing other actions related to cannabis, except as specified. The bill would provide that its provisions do not affect local zoning ordinances or laws of general application. The bill would make certain violations of its provisions a crime, thereby imposing a state-mandated local program. The bill would create a Medical Cannabis Appeals Board to which a person aggrieved by any final decision of the department could appeal. The bill would authorize the department to delegate authority to administrative law judges. The bill would prescribe a procedure for these appeals and for the review of an order of the appeals board by the courts. The bill would establish requirements for the transportation of medical cannabis. The bill would specify that its provisions are severable.

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The bill would specify that recommending marijuana to patients without a good faith examination and medical reason is unprofessional conduct and is a type of case that should be given priority for investigation and prosecution by the Medical Board of California, as described above. The bill would also specify that employment by, or an agreement with, a mandatory medical cannabis registrant to provide recommendations for medical marijuana constitutes unprofessional conduct. By broadening the definition of a crime, the bill would impose a state-mandated local program. The bill would repeal, 90 days after the department posts a specified notice on its Internet Web site, the provisions described above prohibiting prosecution of qualified patients, persons with valid identification cards, and designated primary caregivers who associate in California, collectively or cooperatively, to cultivate marijuana for medical purposes.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law allows opinion testimony from expert witnesses to be admitted at trial upon specified showings.

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This bill would allow expert testimony regarding the reliability of an eyewitness identification to be admitted at trial if the proponent of the evidence establishes relevancy and proper qualifications of the witness.

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Existing law generally regulates the collection and admissibility of evidence for purposes of criminal prosecutions.

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This bill would authorize any law enforcement agency to adopt regulations for conducting photo and live lineups with eyewitnesses, and provides that specified procedures should be considered when adopting the regulations, including sequentially presenting photos used in an identification procedure and separating all witnesses when viewing an identification procedure.

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Existing law provides that in any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court before commencement of argument.

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This bill would require the court in a criminal trial or proceeding in which a witness testifies to an identification made before trial, as specified, and where the local law enforcement agency in that jurisdiction has adopted recommended live and photo eyewitness identification procedures, to give specified instructions to the jury, including an instruction that they may consider evidence that law enforcement officers did or did not follow specified procedures during identification procedures when determining the reliability of the eyewitness identification. The bill would authorize the court to provide the same instructions in a jurisdiction that has not adopted the recommended live and photo eyewitness identification procedures.

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Vote: majority. Appropriation:  begin delete no end delete begin insert yes end insert . Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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This act shall be known, and may be cited, as the
Medical Cannabis Regulation and Control Act.

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begin insert SEC. 2. end insert   

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(a) The Legislature finds and declares all of the
following:

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(1) In 1996, the people of the State of California enacted the
Compassionate Use Act of 1996, codified in Section 11362.5 of
the Health and Safety Code. The people of the State of California
declared that their purpose in enacting the measure was, among
other things, “to ensure that seriously ill Californians have the
right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended
by a physician who has determined that the person’s health would
benefit from the use of marijuana in the treatment of cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis,
migraine, or any other illness for which marijuana provides relief.”

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(2) The Compassionate Use Act of 1996 called on state
government to implement a plan for the safe and affordable
distribution of marijuana to all patients in medical need of
marijuana.

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(3) In 2003, the Legislature enacted the Medical Marijuana
Program Act (MMPA), codified in Article 2.5 (commencing with
Section 11362.7) of Chapter 6 of Division 10 of the Health and
Safety Code. Under the guidance of the MMPA, approximately 60
California cities and counties have created medical marijuana
access ordinances that can act as a guide for the state. However,
many other cities and counties are calling for more guidance and
regulation from the state and have passed bans or moratoria on
medical marijuana cultivation and distribution while awaiting this
guidance.

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(4) Greater certainty and uniformity are urgently needed
regarding the rights and obligations of medical marijuana
facilities, and for the imposition and enforcement of regulations
to prevent unlawful cultivation and the diversion of marijuana to
nonmedical use.

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(5) Despite the passage of the Compassionate Use Act of 1996
and the MMPA, because of the lack of an effective statewide system
for regulating and controlling medical marijuana, local law
enforcement officials have been confronted with uncertainty about
the legality of some medical marijuana cultivation and distribution
activities. The current system of collectives and cooperatives makes
law enforcement difficult and endangers patient safety because of
an inability to monitor the supply of medical marijuana in the state
and the lack of quality control, testing, and labeling requirements.
As a result, many cities and counties have passed local ordinances
that in some cases ban the cultivation or distribution of medical
marijuana.

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(6) For the protection of all Californians, the state must act to
regulate and control medical marijuana and not preempt local
government ordinances. Cities and counties should be allowed to
impose reasonable local taxes and enact reasonable zoning
regulations and other restrictions applicable to the cultivation and
distribution of medical marijuana based on local needs. In order
to provide patients with access to safe medical marijuana products,
while at the same time preventing diversion of marijuana to
nonmedical uses and protecting the public, it is necessary to amend
the MMPA and to establish a comprehensive structure for
regulating the cultivation, production, and distribution of medical
marijuana products.

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(7) A state entity shall be created to regulate and control the
mandatory registration of all entities involved in the commercial
cultivation, processing, manufacturing, testing, transportation,
distribution, and sale of medical marijuana in this state. Patients
and their primary caregivers shall continue to be allowed to
cultivate medical marijuana for the personal medical purposes of
the individual patient, but only medical marijuana produced in
compliance with this act may be sold or commercially distributed.

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(8) This act is not intended to prevent cities and counties from
imposing reasonable local taxes and enacting reasonable zoning
regulations and other restrictions applicable to the commercial
cultivation and distribution of medical marijuana based on local
needs.

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(9) It is the intent of the Legislature that the state entity created
to regulate and control medical marijuana solicit input from cities
and counties that have local ordinances or regulations allowing
for the registering, permitting, or licensing of medical marijuana
businesses, dispensaries, or other entities involved in providing
medical marijuana to patients in the process of promulgating
standards and regulations pursuant to this act.

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(10) The provisions of this act are enacted pursuant to the
powers reserved to the State of California and its people under
the Tenth Amendment to the United States Constitution.

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(11) Nothing in this act is intended to require any individual or
entity to engage in any conduct that violates federal law or to
exempt anyone from any requirement of federal law or to pose any
obstacle to federal enforcement of federal law.

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(b) It is therefore the intent of the Legislature, in enacting this
act, to accomplish all of the following:

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(1) To establish a statewide system for regulating and
controlling commercial medical cannabis activities by creating a
state entity to enact and enforce regulations governing the
cultivation, processing, manufacturing, testing, transportation,
distribution, and sale of commercial medical cannabis.

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(2) To allow cities and counties to enact reasonable zoning
regulations or other restrictions applicable to the cultivation,
processing, manufacturing, testing, and distribution of commercial
medical cannabis based on local needs.

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(3) To establish the Division of Medical Cannabis Regulation
and Enforcement to be located within the Department of Alcoholic
Beverage Control to provide a governmental agency that will
ensure the strict, honest, impartial, and uniform administration
and enforcement of the medical cannabis laws throughout the
state.

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(4) 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 of marijuana.”

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(5) To establish a statewide registration process for commercial
medical cannabis activities to identify for law enforcement which
entities are exempt from state criminal penalties.

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(6) To reduce the cost of commercial medical cannabis
enforcement by controlling commercial medical cannabis
production and distribution through comprehensive statewide
regulation and providing law enforcement guidelines to more
easily determine whether or not a person is acting in conformance
with the state’s medical cannabis laws.

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begin insert SEC. 3. end insert   

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begin insert Section 2220.05 of the end insert begin insert Business and Professions Code end insert
begin insert is amended to read: end insert

2220.05.  

(a) In order to ensure that its resources are maximized
for the protection of the public, the Medical Board of California
shall prioritize its investigative and prosecutorial resources to
ensure that physicians and surgeons representing the greatest threat
of harm are identified and disciplined expeditiously. Cases
involving any of the following allegations shall be handled on a
priority basis, as follows, with the highest priority being given to
cases in the first paragraph:

(1) Gross negligence, incompetence, or repeated negligent acts
that involve death or serious bodily injury to one or more patients,
such that the physician and surgeon represents a danger to the
public.

(2) Drug or alcohol abuse by a physician and surgeon involving
death or serious bodily injury to a patient.

(3) Repeated acts of clearly excessive prescribing, furnishing,
or administering of controlled substances, or repeated acts of
prescribing, dispensing, or furnishing of controlled begin delete substances end delete
begin insert substances, or recommending marijuana to patients for medical
purposes, end insert without a good faith prior examination of the patient
and medical reason therefor. However, in no event shall a physician
and surgeon prescribing, furnishing, or administering controlled
substances for intractable pain consistent with lawful prescribing,
including, but not limited to, Sections 725, 2241.5, and 2241.6 of
this code and Sections 11159.2 and 124961 of the Health and
Safety Code, be prosecuted for excessive prescribing and prompt
review of the applicability of these provisions shall be made in
any complaint that may implicate these provisions.

(4) Sexual misconduct with one or more patients during a course
of treatment or an examination.

(5) Practicing medicine while under the influence of drugs or
alcohol.

(b) The board may by regulation prioritize cases involving an
allegation of conduct that is not described in subdivision (a). Those
cases prioritized by regulation shall not be assigned a priority equal
to or higher than the priorities established in subdivision (a).

(c) The Medical Board of California shall indicate in its annual
report mandated by Section 2312 the number of temporary
restraining orders, interim suspension orders, and disciplinary
actions that are taken in each priority category specified in
subdivisions (a) and (b).

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begin insert SEC. 4. end insert   

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begin insert Section 2242 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

2242.  

(a) Prescribing, dispensing, or furnishing dangerous
drugs as defined in Section begin delete 4022 end delete begin insert 4022, or recommending
marijuana to a patient for medical purposes, end insert without an appropriate
prior examination and a medical indication, begin insert including an in-person
examination when recommending marijuana, end insert constitutes
unprofessional conduct.

(b) No licensee shall be found to have committed unprofessional
conduct within the meaning of this section if, at the time the drugs
were prescribed, dispensed, or furnished, any of the following
applies:

(1) The licensee was a designated physician and surgeon or
podiatrist serving in the absence of the patient’s physician and
surgeon or podiatrist, as the case may be, and if the drugs were
prescribed, dispensed, or furnished only as necessary to maintain
the patient until the return of his or her practitioner, but in any case
no longer than 72 hours.

(2) The licensee transmitted the order for the drugs to a
registered nurse or to a licensed vocational nurse in an inpatient
facility, and if both of the following conditions exist:

(A) The practitioner had consulted with the registered nurse or
licensed vocational nurse who had reviewed the patient’s records.

(B) The practitioner was designated as the practitioner to serve
in the absence of the patient’s physician and surgeon or podiatrist,
as the case may be.

(3) The licensee was a designated practitioner serving in the
absence of the patient’s physician and surgeon or podiatrist, as the
case may be, and was in possession of or had utilized the patient’s
records and ordered the renewal of a medically indicated
prescription for an amount not exceeding the original prescription
in strength or amount or for more than one refill.

(4) The licensee was acting in accordance with Section 120582
of the Health and Safety Code.

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begin insert SEC. 5. end insert   

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begin insert Section 2264 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

2264.  

The employing, directly or indirectly, the aiding, or the
abetting of any unlicensed person or any suspended, revoked, or
unlicensed practitioner to engage in the practice of begin delete medicine end delete
begin insert medicine, including employment by, end insert or begin insert other agreement with, a
mandatory commercial registrant acting pursuant to the Medical
Cannabis Regulation and Control Act or a dispensary to provide
recommendations for medical marijuana, or end insert any other mode of
treating the sick or afflicted which requires a license to practice
constitutes unprofessional conduct.

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begin insert SEC. 6. end insert   

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begin insert Chapter 18 (commencing with Section 26000) is added
to Division 9 of the end insert begin insert Business and Professions Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 18. end insert Medical Cannabis Regulation

 

Article begin insert 1. end insert   General Provisions

 

begin insert 26000. end insert   

(a) It is the intent of the Legislature in enacting this
chapter to provide for the comprehensive regulation of the
commercial cultivation, manufacturing, testing, transportation,
distribution, and sale of medical cannabis and the enforcement of
laws relating to commercial medical cannabis activities.

(b) This chapter is an exercise of the police powers of the state
for the protection of the safety, welfare, health, peace, and morals
of the people of the state.

begin insert 26001. end insert   

Subject to the authority of a city or county pursuant to
Section 26010, the state shall have the exclusive right and power
to regulate and register persons for the cultivation, manufacture,
testing, transportation, storage, distribution, sale, purchase, and
possession of medical cannabis within the state. In the exercise of
these rights and powers, the Legislature shall not constitute the
state or any of its agencies as a cultivator, manufacturer,
transporter, tester, or seller of medical cannabis.

begin insert 26002. end insert   

For the purpose of this chapter:

(a) “Cannabis” means all parts of the plant Cannabis sativa
L., whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture,
or preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil, or cake, or the sterilized seed of the plant
which is incapable of germination. “Cannabis” also means the
separated resin, whether crude or purified, obtained from
marijuana.

(b) “Department” means the Department of Alcoholic Beverage
Control.

(c) “Dispensary” means a mandatory commercial registrant
that dispenses cannabis or medical cannabis products through a
retail storefront.

(d) “Division” means the Division of Medical Cannabis
Regulation and Enforcement.

(e) “Fund” means the Medical Cannabis Regulation Fund
established pursuant to Section 26028.

(f) “Identification program” means the universal identification
certificate program for mandatory commercial registrants.

(g) “Mandatory commercial registrant” or “registrant” means
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 to
commercially cultivate, process, possess, store, manufacture, test,
transport, distribute, or sell medical cannabis in compliance with
this chapter, other than a patient or a patient’s primary caregiver,
as defined by the Compassionate Use Act of 1996, growing,
possessing, storing, manufacturing, transporting, or providing
medical cannabis exclusively for the personal medical purposes
of individual patients as defined in subdivision (b) of Section
26050.

(h) “Medical cannabis product” means any cannabis product,
including concentrates and extractions, that is cultivated,
processed, packaged, and distributed in full compliance with the
requirements of this chapter and with any regulations adopted by
the department pursuant to its rulemaking authority. “Medical
cannabis product” includes medically infused products that contain
medical cannabis and are intended for oral or topical consumption
by a qualified patient.

(i) “Person” includes any individual, firm, copartnership, joint
adventure, association, corporation, estate, trust, business trust,
receiver, syndicate, or any other group or combination acting as
a unit and includes the plural as well as the singular number.

(j) “Testing and labeling” means mandatory labeling and a
quality assurance plan in place that addresses all of the following:

(1) Potency.

(2) Chemical residue.

(3) Microbiological contaminants.

(4) Random sample testing of medical cannabis and medical
cannabis products.

(5) Handling, care, and storage.

(6) Date and location of production and manufacturing.

begin insert 26010. end insert   

This chapter does not prevent a city or county from
doing any of the following:

(a) Adopting local ordinances that ban or regulate the location,
operation, or establishment of a cannabis dispensary.

(b) The civil or criminal enforcement of the ordinances
described in subdivision (a).

(c) Establishing a reasonable fee for the operation of a
mandatory commercial registrant within its jurisdiction.

(d) Enacting other laws consistent with this chapter.

 

Article begin insert 2. end insert   Administration

 

begin insert 26020. end insert   

(a) There is hereby created in the Department of
Alcoholic Beverage Control the Division of Medical Cannabis
Regulation and Enforcement. The division shall be administered
by a person exempt from the civil service who is appointed by the
director.

(b) The department shall have the exclusive power, consistent
with the provisions of this chapter, to register persons for the
cultivation, manufacture, testing, transportation, storage,
distribution, and sale of medical cannabis within the state and to
collect registration fees in connection with these actions.

begin insert 26022. end insert   

The department shall have all power necessary for
administration of this chapter, including, but not limited to, the
following:

(a) Establishing statewide standards for the commercial
cultivation, manufacturing, testing, transportation, storage,
distribution, and sale of medical cannabis and medical cannabis
products and procedures for the issuance, renewal, suspension,
and revocation of registrations of mandatory commercial
registrants.

(b) Establishing a scale of application, registration, and renewal
fees, to be imposed by the state, for mandatory commercial
registrants for the cultivation, manufacturing, testing,
transportation, distribution, and sale of medical cannabis and
medical cannabis products. The department may charge separate
fees for each mandatory commercial registration application for
cultivation, manufacturing, transportation, distribution, and sale.
The total fees imposed pursuant to this chapter shall be reasonable
and based on the actual costs of administering and enforcing this
chapter.

(c) The department shall make and prescribe those reasonable
rules as may be necessary or proper to carry out the purposes and
intent of this chapter and to enable it to exercise the powers and
perform the duties conferred upon it by this chapter and in
accordance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code. For the
performance of its duties, the department has the powers as set
forth in Article 2 (commencing with Section 11180) of Chapter 2
of Part 1 of Division 3 of Title 2 of the Government Code.

(d) Approving or denying mandatory commercial registration
applications for cultivation, manufacturing, testing and labeling,
transportation, distribution, and sale of medical cannabis pursuant
to this chapter.

(e) The department shall have the power, in its discretion, to
deny, suspend, revoke, or fine any registration issued pursuant to
this chapter if the department determines, for good cause, that the
granting or continuance of the registration would be contrary to
public welfare or morals or that a person holding or seeking a
registration has violated any law prohibiting conduct involving
moral turpitude.

(f) Imposing any penalty authorized by this chapter or any rule
or regulation adopted pursuant to this chapter.

(g) Taking any reasonable action with respect to a mandatory
commercial registration application in accordance with procedures
established pursuant to this chapter.

(h) Upon the denial of any application for a registration, the
department shall notify the applicant in writing. After service of
the notice and within the time prescribed by the department, the
applicant may present his or her written petition for a registration
to the department. Upon receipt by the department of a petition
for a registration in proper form, the petition shall be set for
hearing.

(i) (1) For any hearing held pursuant to this chapter, the
department may delegate the power to hear and decide to an
administrative law judge appointed by the director. Any hearing
before an administrative law judge shall be pursuant to the
procedures, rules, and limitations prescribed in Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title
2 of the Government Code.

(2) Prior to suspending, revoking, or fining any registration,
the department shall file an accusation as provided for in Section
11503 of the Government Code, and the registrant may request a
hearing.

(j) Developing any forms, identification certificates, and
applications that are necessary or convenient in the reasonable
discretion of the department for the administration of this chapter
or any of the rules or regulations adopted pursuant to this chapter.

(k) Overseeing the operation of the Medical Cannabis
Regulation Fund established pursuant to Section 26028.

(l) Establishing reasonable fees for processing all applications,
registrations, notices, or reports required to be submitted to the
department. The amount of the fees shall reflect, but shall not
exceed, the direct and indirect costs of the department for the
administration of this chapter and the rules or regulations adopted
pursuant to this chapter.

(m) The department may consult with other state agencies,
departments, or public or private entities for the purposes of
establishing statewide standards and regulations.

begin insert 26024. end insert   

(a) The department may assist state taxation authorities
in the development of uniform policies for the taxation of
mandatory commercial registrants.

(b) The department shall assist the Division of Occupational
Safety and Health in the Department of Industrial Relations in the
development of industry-specific regulations related to commercial
medical cannabis activities.

begin insert 26028. end insert   

(a) The Medical Cannabis Regulation Fund is hereby
established within the State Treasury. Notwithstanding Section
16305.7 of the Government Code, the fund shall include any
interest and dividends earned on the money in the fund.

(b) All fees collected pursuant to this chapter shall be deposited
into the Medical Cannabis Regulation Fund. Notwithstanding
Section 13340 of the Government Code, all moneys within the fund
are hereby continuously appropriated, without regard to fiscal
year, to the department solely for the purposes of fully funding
and administering this chapter, including, but not limited to, the
costs incurred by the department for its administrative expenses.

(c) All moneys collected pursuant to this chapter as a result of
penalties imposed under this division shall be deposited directly
into the General Fund, to be available upon appropriation.

(d) The department may establish and administer a grant
program to allocate moneys from the Medical Cannabis Regulation
Fund to state and local entities for the purpose of assisting with
commercial medical cannabis regulation and the enforcement of
this chapter.

begin insert 26030. end insert   

(a) The director and the persons employed by the
department for the administration and enforcement of this chapter
are peace officers in the enforcement of the penal provisions of
this chapter, the rules of the department adopted under the
provisions of this chapter, and any other penal provisions of law
of this state prohibiting or regulating the cultivation, processing,
storing, manufacturing, testing, transporting, or selling of medical
cannabis, and these persons are authorized, while acting as peace
officers, to enforce any penal provisions of law while in the course
of their employment.

(b) The director, the persons employed by the department for
the administration and enforcement of this chapter, peace officers
listed in Section 830.1 of the Penal Code, and those officers listed
in Section 830.6 of the Penal Code while acting in the course and
scope of their employment as peace officers may, in enforcing the
provisions of this chapter, visit and inspect the premises of any
mandatory commercial registrant at any time during which the
registrant is acting pursuant to the registration.

(c) Peace officers of the Department of the California Highway
Patrol, members of the University of California and California
State University police departments, and peace officers of the
Department of Parks and Recreation, as defined in subdivisions
(a), (b), (c), and (f) of Section 830.2 of the Penal Code, may, in
enforcing this chapter, visit and inspect the premises of any
mandatory commercial registrant located on state property at any
time during which the registrant is acting pursuant to the
registration.

begin insert 26034. end insert   

(a) Information identifying the names of patients, their
medical conditions, or the names of their primary caregivers
received and contained in records kept by the department for the
purposes of administering this chapter are confidential and exempt
from the California Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government Code)
and or not subject to disclosure to any individual or private entity,
except as necessary for authorized employees of the State of
California to perform official duties pursuant to this chapter:

(b) (1) Nothing in this section precludes the following:

(A) Division employees notifying state or local law enforcement
about information submitted to the division that the employee
suspects is falsified or fraudulent.

(B) Notifications from the division to state or local law
enforcement about apparent criminal violation of this chapter.

(C) Verification of requests by state or local law enforcement
to confirm registrants and certificates issued by the division or
other state agency.

(D) Provision of information requested pursuant to a court
order or subpoena issued by a court.

(2) Information shall not be disclosed beyond what is necessary
to achieve the limited goals of a specific investigation or the
parameters of a specific court order or subpoena.

 

Article begin insert 3. end insert   Mandatory Commercial Registration

 

begin insert 26040. end insert   

(a) On or before January 1, 2015, the department shall
promulgate regulations necessary for the implementation and
enforcement of this chapter. These regulations shall be reasonable
and shall include:

(1) Procedures for the issuance, renewal, suspension, and
revocation of mandatory commercial registrations.

(2) Application, registration, and renewal forms and fees
consistent with this act.

(3) Time periods, not to exceed 90 days, by which the department
shall approve or deny an application for medical cannabis
registration.

(4) Qualifications for registrants.

(5) Security requirements, including, but not limited to,
procedures for limiting access to facilities and for the screening
of employees. The department shall require all registrants to
maintain an accurate roster of any employee’s name, date of birth,
and relevant personally identifying information, which shall be
available for inspection by the department or state or local law
enforcement upon demand.

(6) Testing and labeling requirements, including, but not limited
to, disclosure of the active cannabinoid profile, constituent
elements, active ingredients, and results of testing for
contaminants.

(7) Health and safety requirements, including, but not limited
to, prohibitions on shipping or distribution of products containing
microbiological, bacterial, pathogenic yeast or mold counts, or
any adulterant or contaminant, that exceed levels to be determined
by the department.

(8) Inspection and tracking requirements, including, but not
limited to, an electronic production and inventory tracking system
that will allow the department to monitor inventory data at every
level of the cultivation, processing, and distribution system through
a secure, Internet Web site-based portal.

(9) Storage, packaging, and transportation procedures and
protocols.

(10) Advertising restrictions and requirements.

(11) Requirements to ensure conformance with applicable state
statutory environmental, agricultural, and food and product safety
requirements. The department may consult with the California
Environmental Protection Agency to determine whether additional
regulations should be issued in order to protect the state’s clean
water and environment, including, but not limited to, protections
related to land conversion, grading, water diversion and pond
development, and agricultural discharges.

(12) Requirements to prevent the diversion of cannabis to
nonmedical use, including procedures and protocols for disposal
of excess, contaminated, adulterated, or deteriorated products.

(13) Civil penalties for the failure to comply with regulations
adopted pursuant to this chapter.

(b) A mandatory commercial registration application or renewal
shall not be approved if the department determines any of the
following:

(1) The applicant fails to meet the requirements of this chapter
or any regulation adopted pursuant to this chapter, including any
applicable city or county ordinance or regulation.

(2) The applicant, or any of its officers or directors, is under
21 years of age.

(3) The applicant has knowingly answered a question or request
for information falsely on the application form or failed to provide
information requested.

(4) The applicant, or any of its officers or directors, has been
convicted in the previous five years of a violent felony, as specified
in subdivision (c) of Section 667.5 of the Penal Code, a serious
felony as specified in subdivision (c) of Section 1192.7 of the Penal
Code, a felony offense involving fraud or deceit, or any other felony
that, in the department’s estimation, would impair the applicant’s
ability to appropriately operate as a mandatory commercial
registrant.

(5) The applicant, or any of its officers or directors, is a licensed
physician making patient recommendations for medical cannabis.

(6) The applicant, or any of its officers or directors, has been
sanctioned by the department, a city, or a county for unregistered
commercial medical cannabis activities or has had a mandatory
commercial registration revoked in the previous three years.

(7) A sufficient number of mandatory commercial registrants
already exists in the state, a city, or a county to provide a sufficient
amount of medical cannabis to satisfy patients’ medical use in that
jurisdiction.

(c) (1) In order to protect the public safety and provide patients
with prompt, safe access to medical cannabis during
implementation of this chapter, within 180 days of January 1,
2014, the department shall issue emergency regulations consistent
with this chapter that allow a qualified applicant for mandatory
commercial registration to apply, be reviewed, and be registered
to cultivate, process, manufacture, store, and transport medical
cannabis so as to ensure an adequate supply of medical cannabis
upon full implementation of this chapter.

(2) The department shall establish appropriate fees as part of
its emergency regulations adopted pursuant to this chapter.

begin insert 26042. end insert   

For the purpose of regulating the commercial
cultivation, manufacturing, testing, transportation, distribution,
and sale of medical cannabis, the department, in its reasonable
discretion, may establish various classes or types of registration
for specific commercial medical cannabis-related activities, as set
forth in this chapter.

begin insert 26043. end insert   

(a) Each mandatory commercial registration
application approved by the department pursuant to this chapter
is separate and distinct. An applicant may apply for mandatory
commercial registration in more than one class of specified medical
cannabis activities.

(b) A mandatory commercial registration application approved
by the department pursuant to this chapter shall be valid for a
period not to exceed one year from the date of approval unless
revoked or suspended pursuant to this chapter or the rules or
regulations adopted pursuant to this chapter.

begin insert 26044. end insert   

(a) The department shall limit the number of
registrations statewide for the cultivation, processing, extraction,
packaging, and transportation of medical cannabis to a number
no greater than what is necessary to meet statewide need. In
determining the appropriate number of registrations, the
department may take into account information obtained from
sources that include, but need not be limited to, municipalities,
patients, and registrants.

(b) The department shall ensure that the number of registrations
that it approves does not exceed the ability of the department to
enforce the provisions of this chapter, particularly with respect to
ensuring patient safety and preventing illegal diversion of
cannabis.

(c) In establishing limits pursuant to this section, the department
shall consider the following:

(1) The purposes and intent of the Compassionate Use Act of
1996 to ensure an adequate supply of medical cannabis while
endeavoring to prevent an oversupply of cannabis that may result
in diversion.

(2) The number of applicants for mandatory commercial
registrations whose application demonstrates that they will be
able to produce consistent products with strict quality controls,
in full compliance with this chapter and with all applicable state
and local regulations, and the amount of medical cannabis those
applicants will be able to provide.

begin insert 26045. end insert   

Every mandatory commercial registration is renewable
unless the registration has been revoked if the renewal registration
is made and the fee for it is paid. All registrations expire at 12
midnight on the last day of the month posted on the registration.
All registrations issued shall be renewed as follows:

(a) On or before the first of the month preceding the month
posted on the registration, the department shall mail to each
registrant at his or her registered premises, or at any other mailing
address that the registrant has designated, an application to renew
the registration.

(b) The application to renew the registration may be filed before
the registration expires upon payment of the annual fee.

(c) For 60 days after the registration expires, the registration
may be renewed upon payment of the annual renewal fee plus a
penalty fee that shall be equal to 50 percent of the annual fee.

(d) Unless otherwise terminated, or unless renewed pursuant
to subdivision (b) or (c), a registration that is in effect on the month
posted on the registration continues in effect through 12 midnight
of the 60th day following the month posted on the registration, at
which time it is automatically canceled.

(e) On or before the 10th day preceding the cancellation of a
registration, the department shall mail a notice of cancellation to
each registrant that has not either filed an application to renew
its registration or notified the department of its intent not to do
so. Failure to mail the renewal application in accordance with
subdivision (a) or to mail the notice provided in this subdivision
shall not continue the right to a registration.

(f) A registration that has been canceled pursuant to subdivision
(d) may be reinstated during the 30 days immediately following
cancellation upon payment by cashier’s check or money order of
the annual renewal fee, plus a penalty fee that shall be equal to
100 percent of the annual fee. A registration that has been canceled
pursuant to subdivision (d) and that has not been reinstated within
30 days pursuant to this subdivision is automatically revoked on
the 31st day after the registration has been canceled.

(g) A renewal application shall not be deemed filed within the
meaning of this section unless the document itself has been actually
delivered to, and the required renewal fee has been paid at, any
office of the department during office hours, or unless both the
document and fee have been filed and remitted pursuant to Section
11003 of the Government Code.

begin insert 26046. end insert   

An application for mandatory commercial registration
shall include, but shall not be limited to, all of the following:

(a) For all applicants:

(1) The legal name and proposed physical addresses of the
mandatory commercial registrant.

(2) The name, address, and date of birth of each principal officer
and board member.

(3) Operating and inventory control procedures to ensure
security and prevent diversion.

(4) Detailed operating procedures for the proposed facility,
which shall include, but not be limited to, provisions for facility
and operational security, prevention of diversion, employee
screening, storage of medical cannabis, personnel policies, and
recordkeeping procedures.

(5) A list of all persons or entities having an ownership interest
other than a security interest, lien, or encumbrance on any property
that will be used by the applicant.

(6) Evidence of the legal right to occupy and use an established
location for the activities to be conducted if the desired registration
is granted consistent with the provisions of this chapter and the
regulations developed by the department.

(7) Documentation that the applicant will be in compliance with
all local ordinances and regulations.

(8) Evidence that officers and owners of the applicant
organization are citizens of the United States and residents of the
State of California.

(b) In addition to the requirements of subdivision (a), for
cultivation and processing applicants, detailed operating
procedures for cultivation, extraction and infusion methods,
transportation of products, inventory procedures, procedures for
quality control, and onsite testing of product for potential
contaminants.

begin insert 26047. end insert   

Upon receipt of an application for a registration and
the applicable fee, the department shall make a thorough
investigation to determine whether the applicant and the premises
for which a registration is applied qualify for the registration and
whether the provisions of this chapter have been complied with,
and shall investigate all matters connected therewith which may
affect the public welfare and morals. The department shall deny
an application for a registration if either the applicant or the
premises for which a registration is applied do not qualify for a
registration under this chapter. The department further shall deny
an application for a registration if issuance of that registration
would tend to create a law enforcement problem. The department
may place reasonable conditions upon registrations if grounds
exist for denial of the registration, and the department finds those
grounds may be removed by the imposition of those conditions.

begin insert 26048. end insert   

A physician shall not recommend medical cannabis to
a patient while the physician is a mandatory commercial registrant,
or an officer, director, employee, or financial beneficiary of a
mandatory commercial registrant.

begin insert 26049. end insert   

(a) The actions of a mandatory commercial registrant
or provisional registrant, its employees, and its agents, permitted
pursuant to a mandatory commercial registration or provisional
registration issued by the department or otherwise permitted by
this chapter, that are conducted in accordance to the requirements
of this chapter and regulations adopted pursuant to the authority
granted by this chapter, are not unlawful and shall not be an
offense subject to arrest, prosecution, or other sanction under state
or local law, or be subject to a civil fine or be a basis for seizure
or forfeiture of assets under state or local law.

(b) The actions of a person who, in good faith and upon
appropriate investigation, allows his or her property to be used
by a mandatory commercial registrant or provisional registrant,
its employees, and its agents, as permitted pursuant to a mandatory
commercial registration or provisional registration issued by the
department or otherwise permitted by this chapter, are not unlawful
and shall not be an offense subject to arrest, prosecution, or other
sanction under state or local law, or be subject to a civil fine or
be a basis for seizure or forfeiture of assets under state or local
law.

begin insert 26050. end insert   

(a) A registrant shall not cultivate, process, store,
manufacture, test, transport, or sell medical cannabis in the state
unless accurate records are kept at the registered premises of the
growing, processing, storing, manufacturing, testing, transporting,
or selling by the registrant in the state. These records shall include
all expenditures incurred by the registrant, provided that a
registrant registered to act at more than one premises may keep
all records at one of the registered premises. Required records
shall be kept for a period of three years from the date of the
transaction.

(b) The department may make any examination of the books
and records of any registrant and may visit and inspect the
premises of any registrant that the department may deem necessary
to perform its duties under this chapter.

begin insert 26052. end insert   

(a) This chapter shall not apply to, and shall have no
diminishing effect on, the rights and protections granted to a
patient or a primary caregiver pursuant to the Compassionate Use
Act of 1996.

(b) (1) A patient who cultivates, possesses, stores, manufactures,
or transports cannabis exclusively for his or her personal medical
use and who does not sell or distribute cannabis is not considered
a commercial registrant and is exempt from mandatory commercial
registration.

(2) A primary caregiver who cultivates, possesses, stores,
manufactures, transports, or provides cannabis exclusively for the
personal medical purposes of a specified qualified patient for
whom he or she is the primary caregiver within the meaning of
Section 11362.7 of the Health and Safety Code and who does not
sell or distribute cannabis except for compensation in full
compliance with subdivision (c) of Section 11362.765 of the Health
and Safety Code is not considered a commercial registrant and is
exempt from mandatory commercial registration.

begin insert 26054. end insert   

Beginning January 1, 2014, the department shall
provide for provisional registrations as follows:

(a) The department shall request that every city or county,
provide the department with a list of approved entities providing
medical cannabis to qualified patients and caregivers within the
city or county’s jurisdiction, the location at which the entity is
operating, and the names of the persons who operate the entity. If
the jurisdiction represents that the entity has been operating in
compliance with local laws and regulations, the department shall
issue a provisional registration to the entity until the time that the
entity’s application for mandatory commercial registration has
been approved or denied under this chapter, but no later than 90
days after the department begins accepting applications for
mandatory commercial registration.

(b) The department shall issue a provisional registration to
individuals and entities that the department determines were,
during the six months prior to January 1, 2014, regularly
cultivating or distributing medical cannabis collectively or
cooperatively in full compliance with paragraphs A and B of
Section IV of the Guidelines for Security and Non-Diversion of
Marijuana Grown for Medical Use, issued by the Department of
Justice in August 2008, to continue to do so until such time as the
registrant’s application for mandatory commercial registration
has been approved or denied under this chapter, but no later than
90 days after the department begins accepting applications for
mandatory commercial registration. In determining compliance,
the department shall consider any complaints or actions made or
brought by a city or county against the individual or entity. To
qualify, provisional registrants shall be required to disclose to the
department the following information in writing on or before
January 20, 2014, in order to obtain provisional registration:

(1) The names, addresses, and dates of birth of each principal
officer, owner, or board member.

(2) The common street address and assessor’s parcel number
of the property at which any cultivation activity was or is to be
conducted.

(3) For the six months prior to January 1, 2014, the quantity of
cannabis cultivated at a location and the quantity expected to be
cultivated from January 1, 2014, to June 30, 2014, inclusive. The
registrant shall make its records of current activity and activity
for the six months prior to January 1, 2014, available to the
department upon request.

(c) The department shall charge an application fee of five
thousand dollars ($5,000) for each provisional registration.

begin insert 26056. end insert   

In addition to other regulations adopted by the
department pertaining to mandatory commercial registrants and
without limiting the authority of a city or a county pursuant to
Section 26010 or subdivision (b) of Section 26060, the department
shall adopt regulations regarding the minimum standards for the
operation of dispensaries that establish all of the following:

(a) Standards for labeling of products, including the name of
the mandatory commercial registrant from which the product was
obtained, and a requirement that dispensaries provide patients
with detailed written information about the contents of the cannabis
and medical cannabis products they obtain.

(b) Requirements for inventory control and reporting that
require all dispensaries to be able to demonstrate the present
location, amounts, and descriptions of all medical cannabis
products from the time of delivery to the dispensary until purchase
by a qualified patient or primary caregiver.

(c) The maximum number of dispensaries that may operate in
a city or county or the unincorporated areas of a county based on
population, taking into consideration the distances that patients
in rural areas may need to travel in order to reach a dispensary
and the availability of public transportation in both rural and
urban areas.

(d) Minimum educational and testing requirements for
dispensary staff, including background checks, and a requirement
that every dispensary maintain dedicated security staff both inside
and outside the dispensary.

(e) Maximum hours of operation for every dispensary.

(f) Minimum standards governing signage and advertising for
dispensaries.

 

Article begin insert 4. end insert   Enforcement

 

begin insert 26060. end insert   

(a) The department shall work in conjunction with law
enforcement entities throughout the state for the purpose of
implementing and enforcing the rules and regulations regarding
commercial medical cannabis and taking appropriate action
against businesses and individuals who fail to comply with the
law.

(b) Nothing in this chapter shall prevent a city, county, or city
and county from enforcing a zoning ordinance or law of general
application.

begin insert 26062. end insert   

Except for a person identified in Section 26052, a
person shall not exercise the privilege or perform any act that a
registrant may exercise or perform under the authority of a
registration unless the person is acting pursuant to a registration,
including a provisional registration, issued pursuant to this
chapter.

begin insert 26063. end insert   

(a) Commencing January 1, 2015, any product
containing cannabis that is distributed, except in the case of a
primary caregiver distributing to a qualified patient, or offered
for sale shall comply with the testing and labeling requirements
established through regulation by the department.

(b) No person shall steal or fraudulently use a mandatory
commercial registrant identification certificate or registration or
other registrant’s identification card or registration issued by the
department to acquire, cultivate, transport, produce, possess for
sale, sell, or distribute cannabis.

(c) No person shall counterfeit, tamper with, or fraudulently
produce an identification card or registration status.

(d) Any person who violates this section, or Section 26062, is
guilty of a misdemeanor and shall be subject to the following
penalties:

(1) For the first offense, imprisonment in a county jail for no
more than six months or a fine not to exceed one thousand dollars
($1,000), or both.

(2) For a second or subsequent offense, imprisonment in a
county jail for no more than one year or a fine not to exceed one
thousand dollars ($1,000), or both.

(e) Any person who is charged, prosecuted, or subjected to a
civil penalty under this chapter shall not also be charged or
prosecuted pursuant to the Health and Safety Code for conduct
arising from the same set of facts.

begin insert 26064. end insert   

Any person operating an unregistered facility, building,
structure, or location where cannabis is being commercially
cultivated, manufactured, or possessed for sale in violation of this
chapter may be subject to civil penalties of up to twenty-five
thousand dollars ($25,000) for each violation, and the department
may order the destruction of any cannabis associated with that
violation. Any civil fines collected pursuant to this section shall
be deposited into the General Fund pursuant to Section 26028.

begin insert 26066. end insert   

The director may bring an action to enjoin a violation
or the threatened violation of any provision of this chapter,
including, but not limited to, a registrant’s failure to correct
objectionable conditions following notice or as a result of any rule
promulgated pursuant to this chapter. The action shall be brought
in the county in which the violation occurred or is threatened to
occur. Any proceeding brought pursuant to this chapter shall
conform to the requirements of Chapter 3 (commencing with
Section 525) of Title 7 of Part 2 of the Code of Civil Procedure.

begin insert 26068. end insert   

(a) A state or local law enforcement agency shall
immediately notify the department of any arrests made for
violations over which the department has jurisdiction which involve
a registrant or registered premises. Notice shall be given within
10 days of the arrest. The department shall promptly cause an
investigation to be made as to whether grounds exist for suspension
or revocation of a registration of the registrant.

(b) The department shall not open or add an entry to a file or
initiate an investigation of a registrant or suspend or revoke a
registration in either of the following circumstances:

(1) Solely because the registrant or an agent acting on behalf
of the registrant has reported to a state or local law enforcement
agency that suspected controlled substance violations have taken
place on the registered premises.

(2) Solely based on activities constituting violations described
in a report made under paragraph (1), unless the violations
reported occurred with the actual knowledge and willful consent
of the registrant.

begin insert 26070. end insert   

Nothing in this chapter shall be construed to limit a
law enforcement agency’s ability to investigate unlawful activity
in relation to a mandatory commercial registrant.

begin insert 26072. end insert   

The department shall create and maintain a searchable
database that will allow state and local law enforcement to verify
a mandatory commercial registration.

 

Article begin insert 5. end insert   Appeals and Judicial Review

 

begin insert 26080. end insert   

There is in the state government, in the Business,
Consumer Services, and Housing Agency, a Medical Cannabis
Appeals Board. The Medical Cannabis Appeals Board, also
referred to as the board in this chapter, shall exercise the powers
as are vested in it by this chapter and may adopt such rules
pertaining to appeals and other matters within its jurisdiction as
may be required. The board and its duly authorized representatives
in the performance of its duties under this chapter shall have the
powers of a head of a department as set forth in Article 2
(commencing with Section 11180) of Chapter 2 of Part 1 of
Division 3 of Title 2 of the Government Code.

begin insert 26081. end insert   

(a) Any person aggrieved by a final decision of the
department issuing, denying, suspending, revoking, or ordering
any penalty assessment against a registration for the cultivation,
manufacture, testing, transportation, storage, distribution, sale,
purchase, or possession of medical cannabis may appeal to the
board, which shall review the decision subject to the limitations
that may be imposed by the Legislature.

(b) No decision of the department shall become effective during
the period in which an appeal may be filed, and the filing of an
appeal shall stay the effect of the decision until such time as a final
order is made by the board.

begin insert 26083. end insert   

The review by the board of a decision of the department
shall be limited to whether:

(a) The department has proceeded without, or in excess of, its
jurisdiction.

(b) The department has proceeded in the manner required by
law.

(c) The decision is supported by the findings.

(d) The findings are supported by substantial evidence in the
light of the whole record.

(e) There is relevant evidence that, in the exercise of reasonable
diligence, could not have been produced or which was improperly
excluded at the hearing before the department.

begin insert 26085. end insert   

(a) The board shall determine the appeal upon the
record of the department and upon any briefs that may be filed by
the parties. If any party to the appeal requests to appear before
the board, the board may fix a time and place for argument. The
board shall not receive any evidence other than that contained in
the record of the proceedings of the department.

(b) Chapter 4.5 (commencing with Section 11400) of Part 1 of
Division 3 of Title 2 of the Government Code does not apply to
the determination.

begin insert 26087. end insert   

(a) Except as provided in subdivision (b), the board
shall enter an order either affirming or reversing the decision of
the department.

(b) If the board finds that there is relevant evidence that in the
exercise of reasonable diligence could not have been produced or
which was improperly excluded at the hearing before the
department, the board may enter an order remanding the matter
to the department for reconsideration in light of the relevant
evidence.

(c) When the board reverses a decision of the department, the
board may direct reconsideration in light of its order and may
direct the department to take further action as is specifically
enjoined upon it by law, but shall not limit or control in any way
the discretion vested by law in the department.

begin insert 26088. end insert   

Each order of the board on appeal from a decision of
the department shall be in writing and shall be filed by delivering
copies to the parties personally or in the manner prescribed by
Section 1013 of the Code of Civil Procedure. Each order shall
become final upon being filed as provided in this section, and there
shall be no reconsideration or rehearing by the board.

begin insert 26090. end insert   

(a) Any person affected by a final order of the board,
including the department, may apply to the Supreme Court or to
the court of appeal for the appellate district in which the
proceeding arose, for a writ of review of the final order. The
application for writ of review shall be made within 30 days after
filing of the final order of the board.

(b) No court of this state, except the Supreme Court and the
courts of appeal to the extent specified in this article, shall have
jurisdiction to review, affirm, reverse, correct, or annul any order,
rule, or decision of the department or to suspend, stay, or delay
the operation or execution of it, or to restrain, enjoin, or interfere
with the department in the performance of its duties, but a writ of
mandate shall lie from the Supreme Court or the courts of appeal
in any proper case.

(c) No decision of the department which has been appealed to
the board and no final order of the board shall become effective
during the period in which application may be made for a writ of
review, as provided within this section.

(d) The filing of a petition for, or the pendency of, a writ of
review shall not of itself stay or suspend the operation of any order,
rule, or decision of the department, but the court before which the
petition is filed may stay or suspend, in whole or in part, the
operation of the order, rule, or decision of the department subject
to review, upon the terms and conditions which it by order directs.

begin insert 26091. end insert   

The writ of review shall be made returnable at a time
and place then or thereafter specified by court order and shall
direct the board to certify the whole record of the department in
the case to the court within the time specified. No new or additional
evidence shall be introduced in the court, but the cause shall be
heard on the whole record of the department as certified to by the
board.

begin insert 26092. end insert   

(a) The review by the court shall not extend further
than to determine, based on the whole record of the department
as certified by the board, whether:

(1) The department has proceeded without or in excess of its
jurisdiction.

(2) The department has proceeded in the manner required by
law.

(3) The decision of the department is supported by the findings.

(4) The findings in the department’s decision are supported by
substantial evidence in the light of the whole record.

(5) There is relevant evidence which, in the exercise of
reasonable diligence, could not have been produced or which was
improperly excluded at the hearing before the department.

(b) Nothing in this article shall permit the court to hold a trial
de novo, to take evidence, or to exercise its independent judgment
on the evidence.

begin insert 26094. end insert   

The findings and conclusions of the department on
questions of fact are conclusive and final and are not subject to
review. The questions of fact shall include ultimate facts and the
findings and conclusions of the department. The board, the
department, and each party to the action or proceeding before the
board shall have the right to appear in the review proceeding.
Following the hearing, the court shall enter judgment either
affirming or reversing the decision of the department or the court
may remand the case for further proceedings before or
reconsideration by the department.

begin insert 26096. end insert   

The provisions of the Code of Civil Procedure relating
to writs of review shall, insofar as applicable, apply to proceedings
in the courts as provided by this article. A copy of every pleading
filed pursuant to this article shall be served on the board, the
department, and on each party who entered an appearance before
the board.

begin insert 26097. end insert   

Whenever any matter is pending before the board or a
court of record involving a dispute between the department and a
registrant, and the parties to the dispute agree upon a settlement
or adjustment of it, the tribunal shall, upon the stipulation by the
parties that an agreement has been reached, remand the matter
to the department.

 

Article begin insert 6. end insert   Transportation of Medical Cannabis

 

begin insert 26100. end insert   

To claim the protections of this chapter and to maintain
a valid mandatory commercial registration, a registrant shall ship
medical cannabis products only in response to a request for a
specific quantity and variety from a registered dispensary or
mandatory commercial registrant.

begin insert 26102. end insert   

(a) Prior to transporting any medical cannabis product,
a mandatory commercial registrant shall do the following:

(1) Complete a shipping manifest using a form prescribed by
the department.

(2) Securely transmit a copy of the manifest to the mandatory
commercial registrant that will receive the medical cannabis
product and to the department prior to transport.

(b) The mandatory commercial registrant shipping and the
registrant receiving shall maintain each shipping manifest and
make it available to the department upon request.

begin insert 26104. end insert   

(a) Transported medical cannabis products shall:

(1) Be transported only in a locked, safe and secure storage
compartment that is securely affixed to the interior of the
transporting vehicle.

(2) Not be visible from outside the vehicle.

(b) Any vehicle transporting medical cannabis products shall
travel directly from the facilities of mandatory commercial
registrant to the registrant authorized to receive the shipment.

begin insert 26106. end insert   

(a) A mandatory commercial registrant shall staff all
transport vehicles with a minimum of two employees. At least one
delivery team member shall remain with the vehicle at all times
that the vehicle contains medical cannabis.

(b) Each delivery team member shall have access to a secure
form of communication by which each member can communicate
with personnel at the mandatory commercial registrant facility at
all times that the vehicle contains medical cannabis.

(c) Each delivery team member shall possess documentation of
mandatory commercial registration and a government-issued
identification card at all times when transporting or delivering
medical cannabis and shall produce it to any representative of the
department or law enforcement official upon request.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 11362.7 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

11362.7.  

For purposes of this article, the following definitions
shall apply:

(a) “Attending physician” means an individual who possesses
a license in good standing to practice medicine or osteopathy issued
by the Medical Board of California or the Osteopathic Medical
Board of California and who has taken responsibility for an aspect
of the medical care, treatment, diagnosis, counseling, or referral
of a patient and who has begin delete conducted a medical examination of end delete
begin insert performed an appropriate prior examination, found end insert that begin delete patient
before recording in end delete the begin delete patient’s medical record the physician’s
assessment of whether the end delete patient has a begin delete serious medical condition
and whether the end delete begin insert medical indication, and recommends marijuana
for end insert medical begin delete use of marijuana is appropriate. end delete begin insert purposes to treat a
serious medical condition. end insert

(b) “Department” means the State Department of begin delete Health
Services. end delete begin insert Public Health. end insert

(c) “Person with an identification card” means an individual
who is a qualified patient who has applied for and received a valid
identification card pursuant to this article.

(d) “Primary caregiver” means the individual, designated by a
qualified patient or by a person with an identification card, who
has consistently assumed responsibility for the housing, health, or
safety of that patient or person, and may include any of the
following:

(1) In any case in which a qualified patient or person with an
identification card receives medical care or supportive services,
or both, from a clinic licensed pursuant to Chapter 1 (commencing
with Section 1200) of Division 2, a health care facility licensed
pursuant to Chapter 2 (commencing with Section 1250) of Division
2, a residential care facility for persons with chronic life-threatening
illness licensed pursuant to Chapter 3.01 (commencing with Section
1568.01) of Division 2, a residential care facility for the elderly
licensed pursuant to Chapter 3.2 (commencing with Section 1569)
of Division 2, a hospice, or a home health agency licensed pursuant
to Chapter 8 (commencing with Section 1725) of Division 2, the
owner or operator, or no more than three employees who are
designated by the owner or operator, of the clinic, facility, hospice,
or home health agency, if designated as a primary caregiver by
that qualified patient or person with an identification card.

(2) An individual who has been designated as a primary
caregiver by more than one qualified patient or person with an
identification card, if every qualified patient or person with an
identification card who has designated that individual as a primary
caregiver resides in the same city or county as the primary
caregiver.

(3) An individual who has been designated as a primary
caregiver by a qualified patient or person with an identification
card who resides in a city or county other than that of the primary
caregiver, if the individual has not been designated as a primary
caregiver by any other qualified patient or person with an
identification card.

(e) A primary caregiver shall be at least 18 years of age, unless
the primary caregiver is the parent of a minor child who is a
qualified patient or a person with an identification card or the
primary caregiver is a person otherwise entitled to make medical
decisions under state law pursuant to Sections 6922, 7002, 7050,
or 7120 of the Family Code.

(f) “Qualified patient” means a person who is entitled to the
protections of Section 11362.5, but who does not have an
identification card issued pursuant to this article.

(g) “Identification card” means a document issued by the State
Department of begin insert Public end insert Health begin delete Services end delete that document identifies a
person authorized to engage in the medical use of marijuana and
the person’s designated primary caregiver, if any.

(h) “Serious medical condition” means all of the following
medical conditions:

(1) Acquired immune deficiency syndrome (AIDS).

(2) Anorexia.

(3) Arthritis.

(4) Cachexia.

(5) Cancer.

(6) Chronic pain.

(7) Glaucoma.

(8) Migraine.

(9) Persistent muscle spasms, including, but not limited to,
spasms associated with multiple sclerosis.

(10) Seizures, including, but not limited to, seizures associated
with epilepsy.

(11) Severe nausea.

(12) Any other chronic or persistent medical symptom that
either:

(A) Substantially limits the ability of the person to conduct one
or more major life activities as defined in the Americans with
Disabilities Act of 1990 (Public Law 101-336).

(B) If not alleviated, may cause serious harm to the patient’s
safety or physical or mental health.

(i) “Written documentation” means accurate reproductions of
those portions of a patient’s medical records that have been created
by the attending physician, that contain the information required
by paragraph (2) of subdivision (a) of Section 11362.715, and that
the patient may submit to a county health department or the
county’s designee as part of an application for an identification
card.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 11362.775 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

11362.775.  

begin insert (a) end insert begin insert   end insert 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 Section 11357, 11358, 11359, 11360, 11366,
11366.5, or 11570.

begin insert

(b) This section shall remain in effect only until 90 days after
the Department of Alcoholic Beverage Control posts a notice on
its Internet Web site that it began accepting applications for
mandatory commercial registration pursuant to Article 3
(commencing with Section 26040) of Chapter 18 of Division 9 of
the Business and Professions Code, and as of that date is repealed.

end insert

begin insert

begin insert SEC. 9. end insert   

end insert begin insert

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert begin insert

The Legislature finds and declares that Section 3 of
this act imposes a limitation on the public’s right of access to
documents in the possession of a public agency within the meaning
of Section 3 of Article I of the California Constitution. Pursuant
to that constitutional provision, the Legislature makes the following
finding to demonstrate the interest protected by this limitation and
the need for protecting that interest:

end insert begin insert

It is necessary to maintain the confidentiality of patient and
physician information provided to the Division of Medical
Cannabis Regulation and Enforcement in order to protect the
private medical information of patients who use medical cannabis
and to preserve the essential confidentiality of the physician and
patient relationship.

end insert

begin insert

begin insert SEC. 11. end insert   

end insert begin insert

No reimbursement is required by this act pursuant
to Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

The Legislature finds and declares the following:

(a) The goal of a law enforcement criminal investigation is to
find and apprehend the person or persons responsible for
committing a crime.

(b) Eyewitness identification procedure studies indicate that the
criminal justice system can significantly decrease the rate of
erroneous eyewitness identifications by implementing changes to
identification procedures.

(c) A decrease in the number of erroneous eyewitness
identifications will increase public trust in the criminal justice
system, which, in turn, will increase the ability of law enforcement
and prosecutors to convict the guilty and protect our communities.

(d) New policies and procedures, such as those recommended
by the National Institute of Justice, are readily available and have
proven effective in other jurisdictions. States, including New Jersey
and Oregon, have recognized and adopted the importance of tested
eyewitness identification procedures that are shown to increase
reliability. Several local jurisdictions in California have also
adopted tested eyewitness identification procedures with great
success and significant cost savings.

SEC. 2.  

Section 806 is added to the Evidence Code, to read:

806.  

Expert testimony may be admitted regarding factors that
affect the reliability of eyewitness identification, including the
identification procedure, if the proponent of the evidence
establishes relevancy and proper qualifications of the witness.

SEC. 3.  

Section 686.3 is added to the Penal Code, to read:

686.3.  

(a) Any local law enforcement agency, including, but
not limited to, police departments, sheriffs, and prosecutors, may
adopt regulations for conducting photo and live lineups with
eyewitnesses. In adopting the regulations, those agencies are
encouraged to consider all of the following procedures:

(1) Prior to conducting the identification procedure, and as close
in time to the incident as possible, have the eyewitness complete
a standardized form describing the perpetrator of the offense.

(2) If practicable, have the investigator conducting the
identification procedure be a person who is not aware of which
person in the identification procedure is suspected as the perpetrator
of the offense.

(3) Present photos used in an identification procedure
sequentially, and not simultaneously.

(4) Prior to any identification procedure, instruct an eyewitness
of all the following:

(A) The perpetrator may not be among the persons in the
identification procedure.

(B) The eyewitness should not feel compelled to make an
identification.

(C) An identification or failure to make an identification will
not end the investigation.

(5) If the identification procedure is being done sequentially,
instruct an eyewitness of all of the following prior to the
identification procedure:

(A) Each photograph or person shall be viewed one at a time.

(B) The photographs or persons shall be displayed in random
order.

(C) The eyewitness should take as much time as needed in
making a decision about each photograph or person before moving
to the next one.

(D) All photographs or persons will be shown to the eyewitness,
even if an identification is made before all photographs or persons
have been viewed.

(6) Compose an identification procedure so that the fillers
generally fit the description of the person suspected as the
perpetrator, and in the case of a photo lineup, the photograph of
the person suspected as the perpetrator resemble his or her
appearance at the time of the offense and does not unduly stand
out.

(7) If the eyewitness has previously viewed an identification
procedure in connection with the identification of another person
suspected of involvement in the offense, have the fillers in the
lineup in which the person suspected as the perpetrator participates
be different from the fillers used in any prior lineups.

(8) In a live lineup, have any identification actions, such as
speaking or making gestures or other movements, be performed
by all lineup participants.

(9) All live lineup participants shall be out of the view of the
eyewitness prior to the beginning of the identification procedure.

(10) Have only one suspected perpetrator included in any
identification procedure.

(11) Have all witnesses separated when viewing an identification
procedure.

(12) If the eyewitness identifies a person he or she believes to
be the perpetrator, then have all of the following apply:

(A) The investigator shall immediately inquire as to the
eyewitness’s confidence level in the accuracy of the identification.

(B) No information concerning the identified person shall be
given to the eyewitness prior to obtaining the eyewitness’s
statement of confidence level.

(13) Have a written record of the identification procedure be
made that includes, at a minimum, all of the following:

(A) All identification and nonidentification results obtained
during the identification procedure and signed by the eyewitness.

(B) A statement of the eyewitness’ own words regarding how
certain he or she is regarding the accuracy of his or her
identification and signed by him or her.

(C) The names of all persons present at the identification
procedure.

(D) The date, time, and location of the identification procedure.

(E) If the identification procedure was conducted sequentially,
the order in which the photographs or persons were displayed to
the eyewitness.

(F) Color copies of all photographs used in a photo lineup.

(G) Identification information and the sources of all photographs
used in a photo lineup.

(H) Identification information for all individuals used in a live
lineup and a video recording of the lineup.

(b) For purposes of this section, the following terms have the
following meanings:

(1) “Eyewitness” means a person whose identification of another
person may be relevant in a criminal investigation.

(2) “Filler” means either a person or a photograph of a person
who is not suspected of an offense and is included in an
identification procedure.

(3) “Identification procedure” means either a photo lineup or a
live lineup.

(4) “Investigator” means the person conducting the live or photo
lineup.

(5) “Live lineup” means a procedure in which a group of
persons, including the person suspected as the perpetrator of an
offense and other persons not suspected of the offense, is displayed
to an eyewitness for the purpose of determining whether the
eyewitness is able to identify the suspect as the perpetrator.

(6) “Photo lineup” means a procedure in which an array of
photographs, including a photograph of the person suspected as
the perpetrator of an offense and additional photographs of other
persons not suspected of the offense, is displayed to an eyewitness
for the purpose of determining whether the eyewitness is able to
identify the suspect as the perpetrator.

SEC. 4.  

Section 1127i is added to the Penal Code, to read:

1127i.  

(a) In any criminal trial or proceeding in which a
witness testifies to an identification made before trial, either by
viewing photographs or in-person lineups, and where the local law
enforcement agency in that jurisdiction has adopted the
recommended live and photo eyewitness identification procedures
listed in Section 686.3, the court shall instruct the jury as follows
or admonish the jury with a substantially similar instruction:

(1) The procedures listed in Section 686.3 are designed to
decrease the likelihood of misidentification when the police
conduct an identification procedure, such as a lineup. As jurors,
you may consider evidence that police officers did or did not follow
those procedures when you decide whether a witness in this case
was correct or mistaken in identifying the defendant as the
perpetrator of the crime.

(2) Use of these procedures alone does not mean that the witness
is correct or is credible, but only that police followed procedures
that are designed to decrease the likelihood that the witness will
make a mistake during the lineup or other identification procedure.

(3) If police officers did not follow the procedures recommended
in Section 686.3, consider the eyewitness identification with
caution and close scrutiny. This does not mean that you may
arbitrarily disregard his or her testimony, but you should give it
the weight you think it deserves in the light of all the evidence in
the case.

(b) In any criminal proceeding or trial in which a witness
testifies to an identification made before trial in a jurisdiction that
has not adopted the recommended live and photo eyewitness
identification procedures listed in Section 686.3, the court may,
but is not required to, provide the jury with the instruction in
subdivision (a) or admonish the jury with a substantially similar
instruction.

(c) In addition to the jury instruction required under subdivision
(a) and authorized under subdivision (b), the court may, but is not
required to, provide the jury with any additional instructions the
court may deem necessary.

end delete