BILL NUMBER: AB 604 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 11, 2013
AMENDED IN SENATE SEPTEMBER 6, 2013
AMENDED IN SENATE AUGUST 13, 2013
AMENDED IN ASSEMBLY APRIL 29, 2013
INTRODUCED BY Assembly Member Ammiano
(Principal coauthors: Senators Steinberg and Leno)
FEBRUARY 20, 2013
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.
LEGISLATIVE COUNSEL'S DIGEST
AB 604, as amended, Ammiano. Medical cannabis: state regulation
and enforcement.
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.
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.
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.
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.
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.
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.
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.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Medical Cannabis Regulation and Control Act.
SEC. 2. (a) The Legislature finds and declares all of the
following:
(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."
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(10) It is the intent of the Legislature that entities provided
immunity under Measure D, approved by the voters of the City of Los
Angeles on the May 21, 2013, ballot, shall be considered the
equivalent of entities that are registered, permitted, or licensed as
a medical marijuana business, dispensary, or other entity involved
in providing medical marijuana to patients under a local ordinance
and shall be considered in compliance with a local ordinance for the
purposes of the implementation of this act and any regulations
promulgated by the Department of Alcoholic Beverage Control.
(10)
(11) 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.
(11)
(12) 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.
(b) It is therefore the intent of the Legislature, in enacting
this act, to accomplish all of the following:
(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.
(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.
(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.
(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."
(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.
(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.
SEC. 3. Section 2220.05 of the Business and Professions Code is
amended to read:
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 substances, or
recommending marijuana to patients for medical purposes, 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).
SEC. 4. Section 2242 of the Business and Professions Code is
amended to read:
2242. (a) Prescribing, dispensing, or furnishing dangerous drugs
as defined in Section 4022, or recommending marijuana to a patient
for medical purposes, without an appropriate prior examination and a
medical indication, including an in-person examination when
recommending marijuana, 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.
SEC. 5. Section 2264 of the Business and Professions Code is
amended to read:
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 medicine,
including employment by, or 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 any other mode of treating the sick or
afflicted which requires a license to practice constitutes
unprofessional conduct.
SEC. 6. Chapter 18 (commencing with Section 26000) is added to
Division 9 of the Business and Professions Code, to read:
CHAPTER 18. MEDICAL CANNABIS REGULATION
Article 1. General Provisions
26000. (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.
26001. 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.
26002. 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 venture , 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.
26010. 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
mandatory commercial registrant .
(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 2. Administration
26020. (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.
26022. 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.
26024. (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.
26028. (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.
26030. (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.
26034. (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 3. Mandatory Commercial Registration
26040. (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.
26042. 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.
26043. (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.
26044. (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.
26045. 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.
26046. 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 , or an immunity from prosecution for that occupancy or
use pursuant to a local ordinance or ordinances, 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 , including an entity
granted immunity under Meas ure D, approved by the voters
of the City of Los Angeles on the May 21, 2013, ballot .
(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.
26047. 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.
26048. 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.
26049. (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.
26050. (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.
26052. (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.
26054. 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 Unless the jurisdiction represents
that the entity has not been operating in compliance with
local laws and regulations, or does not have limited immunity
under local laws, 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.
26055. Entities that are provided immunity under Measure D,
approved by the voters of the City of Los Angeles on the May 21,
2013, ballot, shall be considered the equivalent of entities that are
registered, permitted, or licensed as a medical marijuana business,
dispensary, or other entity involved in providing medical marijuana
to patients under a local ordinance and shall be considered in
compliance with a local ordinance for the purposes of the
implementation of the act adding this section and any regulations
promulgated by the department.
26056. 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.
26057. The department shall make recommendations to the
Legislature pertaining to the establishment of an appeals and
judicial review process for persons aggrieved by a final decision of
the department.
Article 4. Enforcement
26060. (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.
26062. 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.
26063. (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.
26064. 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.
26066. 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.
26068. (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.
26070. 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.
26072. The department shall create and maintain a searchable
database that will allow state and local law enforcement to verify a
mandatory commercial registration.
Article 5. Appeals and Judicial Review
26080. 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.
26081. (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.
26083. 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.
26085. (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.
26087. (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.
26088. 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.
26090. (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.
26091. 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.
26092. (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.
26094. 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.
26096. 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.
26097. 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 6. 5. Transportation of
Medical Cannabis
26100. 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.
26102. (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.
26104. (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.
26106. (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.
SEC. 7. Section 11362.7 of the Health and Safety Code is amended
to read:
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 performed an appropriate prior examination, found
that the patient has a medical indication, and recommends marijuana
for medical purposes to treat a serious medical condition.
(b) "Department" means the State Department of Public Health.
(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 Public Health 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.
SEC. 8. Section 11362.775 of the Health and Safety Code is amended
to read:
11362.775. (a) 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.
(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.
SEC. 9. 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.
SEC. 10. 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:
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.
SEC. 11. 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.