BILL NUMBER: SB 439 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senators Steinberg and Leno
FEBRUARY 21, 2013
An act to amend Section 11362.7 11362.765
of the Health and Safety Code, relating to medical marijuana.
LEGISLATIVE COUNSEL'S DIGEST
SB 439, as amended, Steinberg. Medical marijuana.
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.
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.
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.
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.
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.
This bill would make a technical, nonsubstantive change to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11362.765 of the
Health and Safety Code is amended to read:
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.
(4) Collectives and cooperatives.
(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.
(c)
(d) 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.
(e) For purposes of this section, both of the following apply:
(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.
(2) A collective may be organized as any statutory business entity
permitted under California law.
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.