Amended in Assembly August 5, 2013

Amended in Assembly June 27, 2013

Amended in Senate April 1, 2013

Senate Bill No. 439

Introduced by Senators Steinberg and Leno

February 21, 2013

An act to amend begin delete Section end delete begin insert Sections 2220.05, 2242, and 2264 of the Business and Professions Code, and to amend Section end insert 11362.765 of the Health and Safety Code, relating to medical marijuana.

LEGISLATIVE COUNSEL’S DIGEST

SB 439, as amended, Steinberg. Medical marijuana.

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

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This bill would specify that repeated acts of excessively recommending marijuana to a patient for medical purposes constitutes the type of case that the board should prioritize. This bill would add that recommending marijuana to a patient for medical purposes without an appropriate prior examination and medical indication constitutes unprofessional conduct. This bill would also specify that employing, aiding, or abetting, an unlicensed person to engage in the practice of medicine with a cannabis clinic or dispensary to provide recommendations for medical marijuana constitutes unprofessional conduct. Because a violation of these provisions would be a crime, the bill would impose a state-mandated local program.

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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.

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

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

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

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

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begin insert SECTION 1. end insert   

end insert

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

2220.05.  

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

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

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

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

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

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

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

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

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begin insert SEC. 2. end insert   

end insert

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

2242.  

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

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

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

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

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

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

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

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

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begin insert SEC. 3. end insert   

end insert

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

2264.  

The employing, directly or indirectly, the aiding, or the
abetting of any unlicensed person or any suspended, revoked, or
unlicensed practitioner to engage in the practice of begin delete medicine end delete
begin insert medicine, including, but not limited to, engaging in the practice
of providing recommendations for medical marijuana at a cannabis
clinic or dispensary, end insert or any other mode of treating the sick or
afflicted which requires a license to practice constitutes
unprofessional conduct.

begin delete SECTION 1. end delete
begin insert SEC. 4. end insert   

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, or 11366.5, or liability as a nuisance under
Section 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.

(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.

(f) Consistent with Section 11362.83, this section shall not
prevent a local government from adopting or enforcing local
ordinances that regulate the location, operation, or establishment
of a medical marijuana collective or cooperative.

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begin insert SEC. 5. end insert   

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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.

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