Amended in Senate April 1, 2013

Senate Bill No. 439

Introduced by Senators Steinberg and Leno

February 21, 2013

An act to amend Section begin delete 11362.7 end delete begin insert 11362.765 end insert of the Health and Safety Code, relating to medical marijuana.

LEGISLATIVE COUNSEL’S DIGEST

SB 439, as amended, Steinberg. Medical marijuana.

begin insert

Existing law, the Compassionate Use Act of 1996, provides that a patient or a patient’s primary caregiver who possesses or cultivates marijuana for personal medical purposes of the patient upon the written or oral recommendation or approval of a physician is not subject to conviction for offenses relating to possession and cultivation of marijuana.

end insert begin insert

Existing law also makes it a crime to possess for sale, plant, cultivate, harvest, dry process, transport, import into this state, sell, furnish, administer, or give away, to offer to transport, import into this state, sell, furnish, administer, or give away, or to attempt to import into this state or transport, any marijuana. Existing law makes it a felony or misdemeanor to open or maintain any place for the purpose of unlawfully selling, giving away, or using, or to knowingly rent, lease, or make available for use a building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution. Existing law further provides that every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered.

end insert begin insert

Existing law requires the Attorney General to develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996, and the Attorney General has published guidelines regarding collectives and cooperatives organized and operated to cultivate and distribute marijuana for medical purposes.

end insert begin insert

This bill would exempt from the criminal acts and abatement of nuisance provisions described above collectives, and cooperatives, as defined. The bill would also exempt those entities and persons from criminal prosecution or punishment solely on the basis of the fact that they receive compensation for actual expenses incurred in carrying out activities that are in compliance with those guidelines.

end insert begin delete

Existing law, the Compassionate Use Act of 1996, prohibits any physician from being punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. The act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

end delete begin delete

This bill would make a technical, nonsubstantive change to these provisions.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 11362.765 of the end insert begin insert Health and Safety Code end insert
begin insert is amended to read: end insert

11362.765.  

(a) Subject to the requirements of this article, the
individuals specified in subdivision (b) shall not be subject, on
that sole basis, to criminal liability under Section 11357, 11358,
11359, 11360, 11366, 11366.5, or 11570. However, nothing in
this section shall authorize the individual to smoke or otherwise
consume marijuana unless otherwise authorized by this article,
nor shall anything in this section authorize any individual or group
to cultivate or distribute marijuana for profit.

(b) Subdivision (a) shall apply to all of the following:

(1) A qualified patient or a person with an identification card
who transports or processes marijuana for his or her own personal
medical use.

(2) A designated primary caregiver who transports, processes,
administers, delivers, or gives away marijuana for medical
purposes, in amounts not exceeding those established in subdivision
(a) of Section 11362.77, only to the qualified patient of the primary
caregiver, or to the person with an identification card who has
designated the individual as a primary caregiver.

(3) Any individual who provides assistance to a qualified patient
or a person with an identification card, or his or her designated
primary caregiver, in administering medical marijuana to the
qualified patient or person or acquiring the skills necessary to
cultivate or administer marijuana for medical purposes to the
qualified patient or person.

begin insert

(4) Collectives and cooperatives.

end insert begin insert

(c) Collectives and cooperatives that receive compensation for
actual expenses incurred in carrying out activities that are in
compliance with the guidelines referenced in subdivision (e),
including reasonable compensation incurred for services provided
to the members or the organization, shall not be subject to
prosecution or punishment under Section 11359 or 11360 solely
on the basis of the fact that those entities or persons receive
compensation as described in this subdivision.

end insert begin delete

(c)

end delete

begin insert (d) end insert  A primary caregiver who receives compensation for actual
expenses, including reasonable compensation incurred for services
provided to an eligible qualified patient or person with an
identification card to enable that person to use marijuana under
this article, or for payment for out-of-pocket expenses incurred in
providing those services, or both, shall not, on the sole basis of
that fact, be subject to prosecution or punishment under Section
11359 or 11360.

begin insert

(e) For purposes of this section, both of the following apply:

end insert begin insert

(1) “Collectives and cooperatives” means a collective or
cooperative that operates within the terms of the Compassionate
Use Act of 1996 (Section 11362.5) and this article and that is
organized and operated in compliance with paragraphs A and B
of Section IV of the Guidelines for the Security and Non-Diversion
of Marijuana Grown for Medical Use, issued by the Attorney
General in August 2008, pursuant to Section 11362.81. For
purposes of this section “collectives and cooperatives” includes
the officers, members, and employees of the collectives and
cooperatives.

end insert begin insert

(2) A collective may be organized as any statutory business
entity permitted under California law.

end insert

begin delete

SECTION 1.  

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 conducted a medical examination of that
patient before recording in the patient’s medical record the
physician’s assessment of whether the patient has a serious medical
condition and whether the medical use of marijuana is appropriate.

(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 Health Services 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.

end delete