BILL ANALYSIS Ó
SB 439
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Date of Hearing: June 18, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 439 (Steinberg) - As Amended: April 1, 2013
SUMMARY : Exempts medical-marijuana cooperative and collectives
which comply with the medical-marijuana guidelines of the
Attorney General from prosecution for specified drug crimes and
nuisance-abatement laws. Specifically, this bill :
1)Exempts medical-marijuana collectives and cooperatives from
criminal liability for possession, cultivation, possession for
sale, sale, transport, importation, and furnishing marijuana,
as well as for maintaining a place, or knowingly providing a
place, for selling or furnishing marijuana.
2)Defines a "collective and cooperative" as an entity which
operates within the terms of the Compassionate Use Act of 1996
? and that is organized and operated in compliance with
specified medical marijuana guidelines issued by the Attorney
General in August 2008, as specified.
3)Provides that the sole fact that a collective or cooperative
receives compensation for actual expenses incurred for
activities carried out in compliance with the Attorney General
guidelines on medical marijuana does not make it subject to
prosecution or punishment for marijuana sales or possession
for sale.
4)Specifies that collectives and cooperatives include the
officers, members, and employees of those entities.
5)Allows, for purposes of these provisions, a collective to be
organized as any statutory business entity permitted under
California law.
EXISTING LAW :
1)States that the People of the State of California hereby find
and declare that the purposes of the Compassionate Use Act of
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1996 are as follows:
a) 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 it
provides relief.
b) To ensure that patients and their primary caregivers who
obtain and use marijuana for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
c) To encourage the Federal and State governments to
implement a plan to provide for the safe and affordable
distribution of marijuana to all patients who medically
need it. [Health and Safety Code (HSC) Sections
11362.5(b)(1)(A) to (C).]
2)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
marijuana for nonmedical purposes. [HSC Section
11362.5(b)(2).]
3)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right
or privilege, for having recommended marijuana to a patient
for medical purposes. [HSC Section 11362.5(c).]
4)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. [HSC Section
11362.5(e).]
5)States that existing law relating to the possession and the
cultivation of marijuana shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates it
for the personal medical purposes of the patient upon the
written or oral recommendation or approval of a physician.
[HSC Section 11362.5(d).]
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6)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. [HSC Sections 11362.71(a) and (b)].
7)Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of marijuana, absent evidence of
fraud. [HSC Section 11362.71(e).]
8)Provides that patients and caregivers may possess and
cultivate an amount of marijuana reasonably necessary for the
patient's current medical needs, notwithstanding any limits
set by the Legislature that impermissibly amend the
Compassionate Use Act. [People v. Kelly (2010) 47 Cal.4th
1008, 1043.]
9)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. [HSC Section 11362.715(a).]
10)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. [HSC Section 11362.735(a).]
11)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. (HSC
Section 11362.78.)
12)Provides that qualified patients, persons with valid
identification cards, and their designated primary caregivers
who associate in order to cultivate marijuana collectively or
cooperatively are not subject to criminal liability on that
basis. (HSC Section 11362.775.)
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13)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. [HSC Section 11362.768(b),
(f), and (g).]
14)Allows local governments to adopt and enforce local
ordinances that regulate the location, operation, or
establishment of a medical-marijuana collective or
cooperative. [HSC Section 11362.83(a) and (b).]
15)Prohibits the possession, possession with intent to sell,
cultivation, sale, transportation, importation, or furnishing
of marijuana, except as otherwise provided by law. (HSC
Sections 11357, 11358, 11359, and 11360.)
16)Provides that every place used to unlawfully sell, serve,
store, keep, manufacture, or give away certain controlled
substances is a nuisance that shall be enjoined, abated, and
prevented, and for which damages may be recovered." (HSC
Section 11570.)
17)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, "While voters
made California the first state to legalize marijuana for
medical use by passing Proposition 215 in 1996, we have
significantly lagged behind in setting regulations for the
industry to follow. While I do not support the legalization
of marijuana, I do believe that California has to put some
rules in place so: patients who need medicinal cannabis have
access to it; so we can insure that drug cartels and other
criminals do not benefit off of the lack of regulations; and
because if we do not do something now - IF marijuana for
recreational use is legalized as it has in other states -- we
will have no ability to control, monitor, or regulate any use
of marijuana in our state.
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"SB 439 is based on the 2008 Attorney General Guidelines 'for
the Security and Non-Diversion of Marijuana Grown for Medical
Use.' SB 439 provides that a cooperative or a dispensary that
operates within the Attorney General's Guidelines shall not be
subject to prosecution from marijuana possession or commerce.
By creating a clear line of what is and is not legal, we are
giving law enforcement the needed tools to go after the actual
'bad apples.'
"Also, it is important to make it clear that SB 439 does not
create a blanket prosecution exemption for all dispensaries.
It only creates an exemption for a dispensary/collective that
is in full compliance with CA state law. Both the California
Supreme Court and the federal government have stated that the
State needs to provide guidance and oversight in this area."
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
Medical Marijuana Program Act (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. In 2010, the California Supreme
Court ruled in People v. Kelly, supra, 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.
Partly as a result of the conflict between federal and state
law, many city and county officials have expressed confusion
about the scope of state medical-marijuana law. Several
localities have passed ordinances banning or zoning
medical-marijuana dispensaries. Some of these ordinances had
been overturned by the courts, while others had been upheld.
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.) The Court did state,
however, "[N]othing prevents future efforts by the
Legislature, or by the People, to adopt a different approach."
(Id. at p. 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, Section 10, subd. (c).] The California Constitution
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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,
Section 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.
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 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 (2010) 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.)
This bill does not appear to place a greater burden on patients
than the CUA does. Rather, by exempting collectives and
cooperatives from prosecution under certain criminal and
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nuisance laws, arguably, this bill advances one of the goals
of the CUA, namely "to encourage the federal and state
governments to implement a plan to provide for the safe and
affordable distribution of marijuana to all patients in
medical need." [HSC Section 11362.5(b)(1)(C).]
4)Attorney General Guidelines Regarding Cooperatives and
Collectives : The Attorney General guidelines distinguish
between cooperatives (coops) and collectives.
(
) The guidelines note that coops are a creature of state law
and subject to detailed regulations. Coops exists mostly for
the benefit of the member-patrons. As to medical marijuana
coops specifically, the guidelines stress they "should not
purchase marijuana form or sell to non-members; instead they
should only provide a means for facilitating or coordinating
transactions between members." (Id. at p. 8.)
In contrast, "collectives" are not defined under state law; so
the guidelines rely on the dictionary definition of a
collective as a business, farm, or other entity operated by
members of an organization or group. On this basis, the
guidelines conclude that a collective "should be an
organization that merely facilitates the collaborative of
patients and caregiver members- including the allocation of
costs and revenues." (Id. at p. 8.) As to marijuana
collectives specifically, the guidelines also specify that
collectives "should not purchase marijuana form or sell to
non-members; instead they should only provide a means for
facilitating or coordinating transactions between members."
(Ibid.)
Other guidelines for the lawful operation of collectives and
cooperatives include: operation as a non-profit, business
licenses, seller's permits, sales-tax collection, and
membership applications and verifications. (Id. at p. 9.)
In addition, the guidelines prohibit distribution and sales to
non-members, and require acquisition only of lawfully
cultivated marijuana. (Id. at p. 10.) Finally, the
guidelines state that dispensaries are not recognized under
the law and are subject to prosecution if not organized as a
coop or collective. (Id. at p. 11.) The guidelines note that
a dispensary describing itself as a caregiver for patients,
but which only satisfies the patient's pharmaceutical needs is
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not a caregiver under the law. [People v. Mentch (2008) 45
Cal.4th 274, 283-286.]
5)Argument in Support : According to the California Attorneys
for Criminal Justice , "Under current law a confusing legal
problem exists. How are people who are legally using medical
marijuana supposed to get their marijuana? In order to avoid
having seriously ill Californians resort to their local
illegal drug dealer, medical marijuana cooperatives and
collectives have filled the gap to provide marijuana pursuant
to the Compassionate Use Act. This has drawn the ire of law
enforcement. The owners and operators of medical marijuana
collectives are being targeted by law enforcement in order to
shut them down and hopefully drive them out of town. Senate
Bill 439 saves money. It will eliminate the expense of
needless arrests and fruitless prosecutions.
"In [the] County of San Bernardino, we have seen those who
attempt to start and operate medical marijuana dispensaries
severely persecuted. Law enforcement is taking advantage of
the current ambiguity in the statute. Because the statute is
unclear, people who run medical marijuana dispensaries are
being arrested, inventory is destroyed, assets are seized,
bank accounts frozen and even their children have been taken
by Child Protective Services. In many cases criminal charges
are eventually dismissed, either by a judge at preliminary
hearing or by the District Attorney on the eve of trial.
Usually the case is only dismissed after every attempt has
been made to squeeze a plea to out of the accused.
Unfortunately in most cases the damage is already done, the
collective is scattered and the dispensary is no more. Those
persons who have been through this are so disheartened they
abandon their purpose and vow never to attempt it again.
"This bill is just common sense. In every other non-profit
business in the county the owners and employees have a right
to recoup costs and receive just compensation. Why is it that
those who operate medical marijuana dispensaries are
discriminated against? If there is going to be a law that
allows people in California to treat their serious illnesses
with medical marijuana there must be a legal way for these
people to obtain their marijuana. Similarly, those
collectives and cooperatives that provide medical marijuana
legally must not be singled out for prosecution."
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6)Argument in Opposition : According to the League of California
Cities , "The League is deeply concerned about any effort to
limit local governments from bringing nuisance abatement
actions, which are an indispensable tool of local land use
authority. In certain instances, nuisance abatement actions
represent the only avenue available to locals to remedy or
remove threats to public health and public safety. The
nuisance abatement provision within SB 439 is therefore an
encroachment upon local land use authority that we do not
believe to be justified.
"In addition, we regard the provision precluding criminal
prosecution of medical marijuana dispensaries as a clear and
present danger to public safety in our communities,
particularly when considering that SB 439 contains absolutely
no enforcement provisions that would address the abuse of
marijuana by those who do not need it for legitimate medical
reasons. It is this abuse, at least in part, that fueled the
federal crackdown on dispensaries in California in recent
years. Moving forward on this issue without a meaningful
enforcement component could well invite similar attention from
the U.S. Department of Justice in the future."
7)Related Legislation : AB 473 (Ammiano) creates 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.
8)Prior Legislation : SB 1182 (Leno), of the 2011-12 Legislative
Session, provided that a cooperative or collective that
operates within the Attorney General's guidelines was not be
subject to prosecution for marijuana possession or commerce.
SB 1182 failed passage on the Senate Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California NORML
Drug Policy Alliance
Marijuana Policy Project
Mayor Bob Filner, City of San Diego
Mayor Jean Quan, City of Oakland
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Mayor Kevin Johnson, City of Sacramento
Mayor Tom Bates, City of Berkeley
Small Farmers Association
Opposition
California Narcotics Officers; Association
California Peace Officers' Association
California Police Chiefs Association
Citizens Against Legalizing Marijuana
Health Advocates Rejecting Marijuana
League of California Cities
San Bernardino County Sheriff's Office
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744