BILL ANALYSIS Ó
AB 1894
Page 1
Date of Hearing: April 22, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1894 (Ammiano) - As Amended: April 1, 2014
SUMMARY : Enacts the Medical Cannabis Regulation and Control
Act. Specifically, this bill :
1)Makes legislative findings and declarations regarding medical
cannabis.
2)Requires the Medical Board of California to include in the
cases it prioritizes for investigation and prosecution those
involving repeated acts of excessively recommending marijuana
to a patient for medical purposes.
3)States that recommending marijuana to a patient for medical
purposes without having conducted an appropriate prior
examination, including an in-person examination, constitutes
unprofessional conduct.
4)States that employing or aiding and abetting an unlicensed
person to engage in the practice of medicine with a marijuana
clinic or dispensary to provide recommendations for medical
marijuana constitutes unprofessional conduct.
5)States legislative intent to provide for the comprehensive
regulation of the cultivation, manufacturing, testing,
transportation, distribution, and sale of medical cannabis and
the enforcement of laws relating to these activities.
6)States that, subject to the authority of a city or county
under Business and Professions Code section 26010, the state
shall have the exclusive power to regulate medical cannabis.
7)Defines the following terms:
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,
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manufacture, salt, derivative, mixture, or preparation of
the plant, it seeds or resin." It also means "the
separated resin, whether crude or purified, obtained from
marijuana."
b) "Department" is the Department of Alcoholic Beverage
Control (ABC).
c) "Dispensary" means "a mandatory commercial registrant
that dispenses cannabis or medical cannabis products
through a retail storefront."
d) "Division" is the Division of Medical Cannabis
Regulation and Enforcement.
e) "Fund" is the Medical Marijuana Fund established under
Business and Professions Code Section 26028.
f) "Identification program" is "the universal
identification card program for mandatory commercial
registrants."
g) "Mandatory commercial registrant" is "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."
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" and 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,
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joint 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: potency,
chemical residue, microbiological contaminants, random
sample testing, handling, care, and storage.
8)Specifies that 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 mandatory
commercial registrant;
b) Enforcing those ordinances civilly or criminally;
c) Establishing a reasonable fee for the operation of a
mandatory commercial registrant; and
d) Enacting other laws consistent with this chapter.
9)Creates the Division of Medical Cannabis Regulation (division)
in the Department of Alcoholic Beverage Control (department).
10)Gives the department the exclusive power to register persons
for specified activities relating to medical cannabis and to
collect registration fees.
11)Confers on the division all power necessary for the
administration of this chapter, including, but not limited to:
a) Establishing statewide standards for the cultivation,
manufacturing, testing, transportation, distribution, and
sales of medical cannabis and medical cannabis products;
b) Establishing a scale of state-imposed fees for the
cultivation, manufacture, testing, transportation,
distribution, and sale of medical cannabis and medical
cannabis products;
c) Making and prescribing reasonable rules that are
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necessary and proper to exercise the powers and perform the
duties conferred upon it;
d) Approving or denying mandatory registration application
for cultivation, manufacturing, testing, labeling,
transportation, distribution, and sale of medical cannabis;
e) Suspending, fining, restricting, or revoking mandatory
commercial registration upon a violation of a rule or
regulation adopted by the division;
f) Imposing penalties;
g) Taking any reasonable action with respect to a mandatory
commercial registration application;
h) Delegating to an administrative law judge the power to
hear and decide appeals of applications for registration;
i) Developing any necessary forms, identification cards,
and applications;
j) Overseeing the operation of the Medical Cannabis
Regulation Fund;
aa) Establishing reasonable fees; and
bb) Consulting with other agencies, departments, and
entities for establishing statewide standards and
regulations.
12)Requires the department to provide written notice of a denial
for registration to an applicant, and allows a denied
applicant to petition for a hearing.
13)Requires the department to file an accusation prior to
suspending, revoking, or fining and registrant, and allows the
registrant to request a hearing.
14)Establishes the Medical Cannabis Regulation Fund within the
State Treasury.
15)Specifies that all fees collected pursuant to this regulatory
scheme shall be deposited into the fund, and that all monies
in the fund are to be continuously appropriated without regard
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to fiscal year to the department for the purpose of
administering this chapter. However, all monies collected as
a result of penalties are deposited in the General Fund.
16)Confers peace officer status on the director and persons
employed by the ABC for administration and enforcement of this
chapter, and authorize those persons to enforce any penal
provisions of law while in the course of their employment.
17)Allows other specified peace officers to visit and to inspect
the premises of any mandatory commercial registrant at any
time while enforcing this chapter.
18)Makes information contained in department records regarding
the names of patients, their medical conditions, and their
primary caregivers confidential and exempt from the Public
Records Act, except as specified.
19)Requires, by January 1, 2016, the division to establish
procedures for the issuance, renewal, suspension, and
revocation of mandatory commercial registration; application,
registration, and renewal forms and fees; qualifications for
registrants; security requirements; testing and labeling
requirements; health and safety requirements; inspection and
other tracking requirements, storage, packing, and
transportation procedures and protocols; advertising
restrictions and requirements; food and product safety
requirements; requirements to prevent diversion of cannabis
for nonmedical use, and civil penalties for the failure to
comply with regulations.
20)Prohibits approval of a mandatory commercial registration
application or renewal if the department determines any of the
following:
a) The applicant fails to meet the established requirements
or any regulation adopted;
b) The applicant, or any of its officers or directors, is
under 21 years of age;
c) The applicant has knowingly answered a question or
request for information falsely on the form;
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d) The applicant, or any of its officers or directors, has
been convicted in the past five years of a serious or
violent felony, as specified, a felony involving fraud or
deceit, or any other felony that, in the division's
estimation, would impair the applicant's ability to
appropriately operate medical cannabis cultivation,
manufacturing, testing, distribution or sales;
e) The applicant is a licensed physician making medical
cannabis recommendations for patients;
f) The applicant, or any of its officers or directors, had
been sanctioned by the division for operating unregistered
commercial medical cannabis activities, or has had a
registration revoked in the previous three years; or
g) A sufficient number of mandatory commercial registrants
already exist in the state, city, or county to satisfy
patients' medical use in that jurisdiction.
21)Requires the department to issue emergency regulations within
180 days of January 1, 2015, including establishing
appropriate fees.
22)Allows the department to establish various classes or types
of registration for specific medical cannabis-related
activities.
23)States that each mandatory commercial registration
application approved by the department is separate and
distinct.
24)Allows an applicant to apply for registration in multiple
classes of specified medical cannabis activities.
25)States that an approved application is valid for a period not
to exceed one year from the date of approval, unless revoked
or suspended.
26)Requires the department to limit the number of registrations
statewide to a number no greater than what is necessary to
meet statewide need, and require the department to ensure that
the number of approved registration do not exceed the
department's ability to enforce the provisions of this
chapter.
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27)Requires the department to consider specified factors in
establishing limits.
28)Specifies requirements and procedures for registration
renewals.
29)Requires an application for mandatory commercial registration
to include, but not be limited to, specified information.
30)Requires the department to make a thorough investigation to
determine qualifications upon receipt of an application.
31)Prohibits a physician from recommending medical marijuana to
a patient while that physician is a mandatory commercial
registrant, or an officer, director, employee, or financial
beneficiary of a registrant.
32)Exempts all mandatory commercial registrants from arrest,
prosecution, forfeiture, or other sanctions, as specified.
33)Exempts a property owner, who in good faith and upon
appropriate investigation, allows his or her property to be
used by a mandatory commercial registrant from arrest,
prosecution, forfeiture, or other sanctions, as specified.
34)Allows the department to examine the books and records of
registrants and inspect the premises of registrants as
necessary.
35)States that this chapter does not apply to and has no
diminishing effect on the rights and protections granted to
individual patients and primary caregivers under the
Compassionate Use Act (CUA).
36)Exempts individual patients and caregivers cultivating
marijuana who do not sell or charge for the cultivation of
marijuana from mandatory commercial registration.
37)Requires the department to provide for provisional
registration, as specified, beginning on January 1, 2015.
38)Requires the department to charge a $5,000 application fee
for each provisional registration.
39)States that entities provided immunity under Los Angeles
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Measure D of 2013 are to be considered the equivalent of
registered entities and in compliance for purposes of this
Act.
40)Requires the department to establish regulations regarding
the minimum standards for the operation of dispensaries,
including standards for labeling products, requirements for
inventory control, the maximum number of dispensaries
permitted in a jurisdiction, minimal educational and testing
requirements, maximum hours of operation for dispensaries, and
standards governing signage and advertising.
41)Requires the department to make recommendations to the
Legislature about establishing an appeals and judicial review
process.
42)Requires the department to work with law enforcement entities
throughout California in order to implement and to enforce the
rules and regulations regarding medical marijuana, and to take
appropriate action against businesses and individuals who do
not comply.
43)States that nothing in this chapter prevents a city, county,
or city and county from enforcing a local zoning ordinance or
law of general application.
44)Requires, commencing on January 1, 2016, that any product
containing cannabis offered for sale be subject to testing and
labeling requirements, except in the case of a primary
caregiver distributing to a qualified patient.
45)Makes it a misdemeanor for a person to steal or fraudulently
use a registrant's identification card or status to acquire,
possess, cultivate, transport, use, produce, or distribute
cannabis, or to tamper with or fraudulently produce an
identification card or registration status.
46)Establishes the following penalties for the misdemeanor
crimes:
a) For the first offense, imprisonment in the county jail
for no more than six months, or a fine up to $1,000, or
both.
b) For a second or subsequent offense, imprisonment in the
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county jail for no more than one year, or a fine up to
$1,000, or both.
47)Subjects a person operating an unregistered medical cannabis
facility to civil penalties of up to $25,000 and authorize the
destruction of marijuana associated with violations.
48)Requires law enforcement to notify the department of any
arrests made for violations over which the department has
jurisdiction which involve a registrant or registered
premises.
49)Specifies that this chapter does not limit a law enforcement
agency's ability to investigate unlawful activity in relation
to a registrant.
50)Requires the department to create and maintain a searchable
database that will allow state and local law enforcement to
verify a mandatory commercial registration.
51)Permits a registrant to ship medical marijuana products only
in response to a request for a specific quantity and variety
from a registered dispensary or mandatory commercial
registrant.
52)Requires a mandatory commercial registrant, prior to
transporting any medical cannabis product, to complete a
shipping manifest using a form prescribed by the department,
and to securely transmit that manifest to the department and
to the mandatory commercial registrant that will receive the
product.
53)Requires that medical cannabis products be transported in a
secured manner, as specified.
54)Sets forth requirements for medical cannabis delivery teams
including: that transport vehicles have a minimum of two
employees, one of which shall remain on the vehicles at all
times cannabis is present; that each team member have access
to a secure form of communication with personnel and the
mandatory commercial registrant; and that each team member
possess a government-issued identification card and
documentation of registration when transporting cannabis.
55)Amends the definition of "attending physician" for purposes
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of the Medical Marijuana Program Act.
56)Permits the board of supervisors of any county and the
governing body of any city to levy, increase, or extend a
transaction and use tax for tangible personal property that is
medical cannabis, or medical-cannabis-infused products for
general purposes, if the ordinance proposing the tax is
approved, as specified.
57)States that the provisions of this Act are severable, and
that if one is held invalid, the invalidity will not affect
other provision which can still be given effect.
58)States that the provisions of this Act which impose a
limitation on the public's right of access to documents in the
possession of a public agency is necessary to maintain to
maintain the confidentiality of patient and physician
information provided to the division in order to protect the
private medical information of patients who use medical
cannabis and to preserve physician-patient confidentiality.
EXISTING LAW :
1)Prohibits the possession, possession with intent to sell,
cultivation, sale, transportation, importation, or furnishing
of marijuana, except as otherwise provided by law. (Health &
Saf. Code, §§ 11357, 11358, 11359, and 11360.)
2)States that the People of the State of California hereby find
and declare that the purposes of the Compassionate Use Act of
1996 are as follows:
a) To ensure that seriously ill Californians have the right
to obtain and use cannabis for medical purposes where that
medical use is deemed appropriate and has been recommended
by a physician who has determined that the person's health
would benefit from the use of cannabis in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which
cannabis provides relief.
b) To ensure that patients and their primary caregivers who
obtain and use cannabis for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
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c) To encourage the Federal and State governments to
implement a plan to provide for the safe and affordable
distribution of cannabis to all patients in medical need of
cannabis. (Health & Saf. Code, § 11362.5, subd.
(b)(1)(A)-(C).)
3)States that nothing in this section shall be construed to
supersede legislation prohibiting persons from engaging in
conduct that endangers others, nor to condone the diversion of
cannabis for nonmedical purposes. (Health & Saf. Code, §
11362.5, subd. (b)(2).)
4)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right
or privilege, for having recommended cannabis to a patient for
medical purposes. (Health & Saf. Code, § 11362.5, subd. (c).)
5)Defines a "primary caregiver" as the individual designated by
a patient who has consistently assumed responsibility for the
housing, health, or safety of that person. (Health & Saf.
Code, § 11362.5, subd. (e).)
6)States that existing law, relating to the possession and the
cultivation of cannabis, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates
cannabis for the personal medical purposes of the patient upon
the written or oral recommendation or approval of a physician.
(Health & Saf. Code, § 11362.5, subd. (d).)
7)Requires the Department of Public Health to establish and
maintain a voluntary program for qualified patients to apply
for identification cards, and county health departments to
issue identification cards to qualified patients and their
caregivers. (Health & Saf. Code, § 11362.71, subds. (a) and
(b).)
8)Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of cannabis, absent evidence of
fraud. (Health & Saf. Code, § 11362.71, subd. (e).)
9)Provides that patients and caregivers may possess and
cultivate an amount of cannabis reasonably necessary for the
patient's current medical needs, notwithstanding any limits
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set by the Legislature that impermissibly amend the
Compassionate Use Act. (People v. Kelly (2010) 47 Cal.4th
1008, 1043.)
10)Requires a person who seeks an identification card to pay a
fee and provide to the county health department the person's:
name, proof of residency, written doctor's recommendation,
doctor's name and contact information, caregiver's name and
duties, and patient's and caregiver's government-issued photo
identification card. (Health & Saf. Code, § 11362.715, subd.
(a).)
11)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing: a
unique user identification number, an expiration date, the
county health department's name and telephone number, photo
identification of the cardholder, and a toll-free Department
of Public Health telephone number enabling state and local law
enforcement officers to immediately verify the card's
validity. (Health & Saf. Code, § 11362.735, subd. (a).)
12)Prohibits state or local law enforcement officers from
refusing to accept an identification card unless the officer
has reasonable cause to believe that the card is being used
fraudulently or its information is false or fraudulent.
(Health & Saf. Code, § 11362.78.)
13)Provides that qualified patients, persons with valid
identification cards, and their designated primary caregivers
who associate in order collectively or cooperatively to
cultivate cannabis are not subject to criminal liability on
that basis. (Health & Saf. Code, § 11362.775.)
14)Restricts the location of medical marijuana cooperatives,
collectives, or dispensaries to more than 600 from a school,
and authorizes cities and counties to further restrict the
locations of these establishments. (Health & Saf. Code, §
11362.768, subds. (b), (f), and (g).)
15)Allows local governments to adopt and enforce local
ordinances that regulate the location, operation, or
establishment of a medical marijuana collective or
cooperative. (Health & Saf. Code, § 11362.83, subds. (a) and
(b).)
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16)Recognizes the authority of cities and counties to make and
enforce, within their borders, all local, police, sanitary,
and other ordinances and regulations not in conflict with
general laws. (Cal. Const., art. XI, sec. 7.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "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.
"In 2003, the Legislature enacted the Medical Marijuana Program
Act (MMPA). 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 such guidance. This patchwork of laws cannot
continue, and the state needs to responds to calls from local
governments and the federal government to institute a
comprehensive set of statewide regulations.
"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. This bill utilizes an existing state
regulatory agency with law enforcement functions to oversee a
regulated chain of commerce, similar to what ABC does with
alcohol. It provides for locals to have the ultimate say in
what types of medical cannabis activities can happen in that
local jurisdiction. This locals-first approach requires that
growers, processers, manufacturers, testing and labeling,
transporters, and retailers will all be required to have local
zoning approval and a local business permit in order to even
apply for state registration.
"Local control and a state regulatory structure will ensure that
every aspect of this commercial chain of commerce will be
tracked - from growers all the way to storefront dispensaries,
creating a network of accountability and transparency that
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does not exist today. Providers who are engaged in transparent
activities with local approval will have nothing to fear as it
will allow law enforcement to effectively utilize their
limited resources to go after bad actors, those who are not
registered, or those who are not following local and state
law.
"The worst public policy is for California to sit idly by and
again do nothing, to let the status quo remain unchecked.
There is no doubt that the medical marijuana industry exists,
and the point of regulation is to bring these activities out
of the shadows to ensure safe and effective access with clear
rules, and for local and state government regulators to know
what activities are happening, and who is engaging in them.
We need to clean up bad actions and bad actors, and AB 1894
will enable local and state regulators to do so."
2)Medical Marijuana Law at Present : California voters passed
Proposition 215, the Compassionate Use Act (CUA), in 1996.
The CUA prohibits prosecution for growing or using marijuana
of Californians who have the oral or written recommendation of
their doctors and these patients' caregivers.
The Legislature sought to clarify this initiative in 2003 with
SB 420 (Vasconcellos), Chapter 875, Statutes of 2003, the
MMPA. The MMPA offered a voluntary identification card which
patients and caregivers could obtain that would additionally
protect them from arrest. The MMPA also set limits on the
amounts of marijuana to be legally grown and possessed. The
California Supreme Court ruled in People v. Kelly (2010) 47
Cal.4th 1008, that the MMPA section limiting quantities of
marijuana is unconstitutional because it amends a voter
initiative.
Now, California patients who obtain a physician's oral or
written recommendation are protected from state prosecution
for possessing or cultivating an amount of marijuana
reasonably related to their current medical needs, as are
these patients' caregivers. Patients and caregivers who
obtain a state MMPA identification card from their county
health department are protected from arrest and prosecution
for possessing, transporting, delivering, or cultivating
marijuana. But, patients and caregivers who engage in these
activities remain liable for federal arrest and prosecution,
and those who operate dispensaries face frequent federal
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enforcement actions. The U.S. Supreme Court ruled in Gonzales
v. Raich (2005) 545 U.S. 1, that the federal government can
enforce marijuana prohibition despite state medical-marijuana
laws. Thus, the CUA and the MMPA have no effect on federal
enforceability of the federal Controlled Substances Act.
The California Supreme Court recently held that the medical
marijuana statutes do not preempt a local ban on facilities
that distribute medical marijuana. Municipalities can
prohibit such conduct as a public nuisance. (City of
Riverside v. Inland Empire Patient's Health & Wellness Center
(2013) 56 Cal.4th 729, 737.) The Court noted, "the CUA and
the MMP are careful and limited forays into the subject of
medical marijuana, aimed at striking a delicate balance in an
area that remains controversial, and involves sensitivity in
federal-state relations. We must take these laws as we find
them, and their purposes and provisions are modest. They
remove state-level criminal and civil sanctions from specified
medical marijuana activities, but they do not establish a
comprehensive state system of legalized medical marijuana; or
grant a 'right' of convenient access to marijuana for
medicinal use; or override the zoning, licensing, and police
powers of local jurisdictions; or mandate local accommodation
of medical marijuana cooperatives, collectives, or
dispensaries." (Id. at pp. 762-763.)
3)California Constitutional Limitations on Legislative
Regulation of Medical Marijuana :
Because the CUA was enacted by voter initiative, the Legislature
may not amend the statute without subsequent voter approval
unless the initiative permits such amendment, and then only
upon whatever conditions the voters attached to the
Legislature's amendatory powers. (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const.,
art. II, § 10, subd. (c).) The California Constitution
states, "The Legislature may amend or repeal referendum
statutes. It may amend or repeal an initiative statute by
another statute that becomes effective only when approved by
the electors unless the initiative statute permits amendment
or repeal without their approval." (Cal. Const., art. II, §
10, subd. (c).) Therefore, unless the initiative expressly
authorizes the Legislature to amend, only the voters may alter
statutes created by initiative. Proposition 215 is silent as
to the Legislature's authority to amend that proposition.
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The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
the people's initiative power and, hence, to apply a liberal
construction to this power wherever it is challenged in order
that the right to resort to the initiative process is not
improperly annulled by a legislative body. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.) Yet, despite the strict bar on the Legislature's
authority to amend initiative statutes, judicial decisions
have recognized that the Legislature is not thereby precluded
from enacting laws addressing the general subject matter of an
initiative. The Legislature remains free to address a
"related but distinct area" or a matter that an initiative
measure "does not specifically authorize or prohibit." (People
v. Kelly, supra, 47 Cal. 4th 1008, 1025-1026.)
As noted above, the California Supreme Court has previously
ruled on the Legislature's ability to regulate the use of
medical marijuana because it was an initiative. In People v.
Kelly, supra, 47 Cal.4th 1008, the California Supreme Court
ruled that the Legislative restriction on the number of plants
a person may possess was unconstitutional as it interfered
with the rights established by the initiative. Although the
Legislature may be able to clarify or expand the rights
established in Proposition 215, it may not enact legislation
that interferes with the use of marijuana for medicinal
purposes. (Id. at 1044.)
But, as the Supreme Court recognized in City of Riverside v.
Inland Empire Patient's Health & Wellness Center, supra, 56
Cal.4th 729, the CUA and the MMPA are limited exceptions to
the state's criminal sanctions and nuisance laws. (Id. at pp.
739, 744-746.) The CUA and MMPA are silent on zoning,
licensing, and police powers of jurisdictions. (Id. at p.
762-763.)
This bill does not appear to place a greater burden on
patients than the CUA does. Patients and caregivers are
exempt from registration under the provision of this Act.
Rather, the bill imposes a regulatory structure on commercial
entities, which was deemed outside the scope of the CUA and
MMPA by the Supreme Court.
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The one area of potential conflict with the CUA is the
provision requiring the Medical Board to prioritize the
prosecution of cases involving "repeated acts of excessively
recommending marijuana to a patient for medical purposes" by
physicians. The CUA provides that "no physician may be
punished or denied any right or privilege under state law for
recommending medical marijuana to a patient." (Health & Saf.
Code, § 11362.5, subd. (c).) Depending on how this provision
is interpreted, it may arguably conflict with the CUA.
However, given that the bill contains a severability clause,
if this provision were deemed to conflict with the CUA, the
other provisions can still be given effect.
4)Arguments in Support :
a) According to the City of Oakland , "AB 1894 is a
comprehensive, thorough approach to medicinal cannabis and
it brings forward order and clarity. This legislation
clarifies state law for local government by respecting the
right of local government to control, limit or ban
dispensaries. This legislation clarifies state law for law
enforcement by creating enforceable and clearly understood
rules and responsibilities. In addition, this legislation
creates a searchable database that is accessible to verify
whether or not an individual has the right to cultivate,
transport or distribute medical cannabis for commercial
purposes.
"Oakland has been on the forefront of medicinal cannabis and
we have 8 approved, sanctioned, well-functioning
dispensaries in our City. I can say with the utmost
confidence that our well-regulated medical cannabis
dispensaries are a benefit to our community. First, there
is safe and ready access to medical marijuana for those in
need which can change the quality of life for those
suffering among us. Next, dispensaries provide quality
jobs, benefits and a safe working environment. They allow
medical cannabis patients to purchase safe medicine in a
secure environment. Third, dispensaries can also provide
much needed tax revenue to local governments, which can be
dedicated to public safety and other quality-of-life
issues."
b) The California Public Defenders Association states,
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"This bill is a commonsense approach to establishing
statewide standards for the cultivation, manufacturing,
testing, transportation, distribution, and sales of medical
marijuana and medical marijuana products. Its even-handed
approach protects the interests of patients, their
caregivers, municipalities and medical marijuana
businesses. It provides a measure of regulatory certainty
to medical marijuana businesses and protects patients and
citizens from unauthorized purveyors of medical marijuana.
Moreover, by barring local law enforcement from
participating in federal harassment of legitimate medical
marijuana businesses, this bill protects California
citizens, especially the ill and infirm."
5)Arguments in Opposition :
a) According to the California Narcotic Officers'
Association , "This bill will open the door to virtual
unfettered trafficking in so-called medical marijuana. AB
1894 contemplates vesting jurisdiction over commercial
medical marijuana in the Department of Alcoholic Beverage
Control. There is no little irony in the selection of the
Department of Alcoholic Beverage Control as the
administering agency for the medical marijuana trade. We
know of no other area of law where an agency charged with
regulating recreational substances such as alcohol is also
given portfolio over matters which are alleged to be
medical.
The challenges faced by the Department of Alcoholic Beverage
Control in carrying its current mandate are daunting; to
now add an entirely different subject matter are to their
responsibilities is simply overwhelming.
In its present form, AB 1894 will undermine local
governments' ability to take action to remove problem
marijuana stores from their communities. Instead, any
effort to remove a problem location would be the virtual
exclusive province of the Department of Alcoholic Beverage
Control. Those of us who are familiar with the attenuated
process that the Department of Alcoholic Beverage Control
requires when they are attempting to close problem bars or
liquor stores can take cold comfort from the lengthy
process that will be entailed to remove a problem marijuana
outlet."
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b) The International Faith Based Coalition states, "As
inner-city pastors, we have already seen the devastating
impact of the overconcentration of liquor stores in our
communities. To permit the same agency that has allowed
the overconcentration of liquor stores to now serve as an
expeditor of marijuana stores in our communities is simply
unacceptable.
"Pastors in under-served communities are on the front lines
of extraordinary social challenges, many of which are
occasioned by the soft bigotry of remote institutions. We
believe that AB 1894 will result in our communities - which
are fragile under the best of circumstances - being forced
to bear the brunt of unbearable burdens. Marijuana stores
are a blight on our communities, they are magnets for
criminal activities and AB 1894 would allow the state to
impose them on us and prevent us from closing them."
6)Related Legislation : SB 1262 (Correa) would require the State
Department of Public Health to license dispensing facilities
and cultivation sites that provide, process, and grow
marijuana for medical use. SB 1262 is pending hearing in the
Senate Business, Professions and Economic Development
Committee.
7)Prior Legislation :
a) AB 473 (Ammiano) of the current legislative session
would have created the Division of Medical Marijuana
Regulation and Enforcement in order to regulate the
cultivation, manufacture, testing, transportation,
distribution, and sale of medical marijuana. AB 473 failed
passage on the Assembly floor.
b) AB 604 (Ammiano) of the current legislative session, was
gutted and amended from a different subject matter and
would have enacted the Medical Cannabis Regulation and
Control Act. AB 604 was never heard by the Senate Public
Safety Committee.
c) AB 2312 (Ammiano), of the 2011-12 Legislative Session,
would have established the Medical Marijuana Regulation and
Control Act, authorizing local taxes on medical cannabis
and creating a board to regulate the medical cannabis
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industry. AB 2312 was never heard by the Senate Committee
on Business, Professions and Economic Development.
d) AB 1300 (Blumenfield), Chapter 196, Statutes of 2011,
provides that a local government entity may enact an
ordinance regulating the location, operation or
establishment of a medical marijuana cooperative or
collective; authorizes local government entity to enforce
such ordinances through civil or criminal remedies and
actions; and authorizes a local government entity to enact
any ordinance that is consistent with the Medical Marijuana
Program. AB 1300 did not directly regulate medical
marijuana facilities.
e) SB 626 (Calderon), of the 2011-12 Legislative Session,
would have required the Board of Equalization (BOE) to
establish a nine-member task force to conduct a study to
determine ways to enhance collections of sales and use
taxes on retail sales of marijuana and ensure proper
regulation of the cultivation, transportation, and
distribution of marijuana and marijuana products. SB 626
was held on the Senate Appropriations Committee's Suspense
File.
f) AB 390 (Ammiano), of the 2009-10 Legislative Session,
would have legalized the possession, sale, cultivation and
other conduct relating to marijuana and required ABC to
administer and enforce the terms of legalized marijuana.
AB 390 passed this Committee and was never heard by the
Assembly Committee on Health.
g) SB 1098 (Migden), of the 2007-08 Legislative Session,
would have required the State Board of Equalization to
administer a tax amnesty program, as specified, for medical
marijuana dispensaries, as defined. SB 1098 was never
voted on by the Senate Revenue and Taxation Committee.
h) SB 420 (Vasconcellos) Chapter 875, Statutes of 2003,
established the Medical Marijuana Program Act, a statewide,
voluntary program for the issuance of identification cards
to identify persons authorized to engage in the medical use
of marijuana under the Compassionate Use Act.
i) Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
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cannabis by a patient or a patient's primary caregiver with
a physician's written or oral recommendation.
REGISTERED SUPPORT / OPPOSITION :
Support
California Cannabis Industry Association
California Norml
California Public Defenders Association
City of Oakland
Drug Policy Alliance
Opposition
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Fraternal Order of Police
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
International Faith Based Coalition
League of California Cities
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Patient Advocacy Network
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Smart Approaches to Marijuana
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744