Senate Bill No. 1262

Introduced by Senator Correa

February 21, 2014

An act to add Article 25 (commencing with Section 2525) to Chapter 5 of Division 2 of the Business and Professions Code, and to add Article 7 (commencing with Section 111657) to Chapter 6 of Part 5 of Division 104 of the Health and Safety Code, relating to medical marijuana.

LEGISLATIVE COUNSEL’S DIGEST

SB 1262, as introduced, Correa. Medical marijuana: regulation of physicians, dispensaries, and cultivation sites.

(1) Existing law, the Compassionate Use Act of 1996, an initiative measure enacted by the approval of Proposition 215 at the November 6, 1996, statewide general election, authorizes the use of marijuana for medical purposes. Existing law enacted by the Legislature requires the establishment of a program for the issuance of identification cards to qualified patients so that they may lawfully use marijuana for medical purposes, and requires the establishment of guidelines for the lawful cultivation of marijuana grown for medical use.

This bill would require the State Department of Public Health to license dispensing facilities and cultivation sites that provide, process, and grow marijuana for medical use, as specified, and would make these licenses subject to the restrictions of the local jurisdiction in which the facility operates or proposes to operate. The bill would require the department to establish standards for quality assurance testing of medical marijuana and would prohibit the use of nonorganic pesticides in any marijuana cultivation site. The bill would require licensed dispensing facilities and licensed cultivation sites to implement sufficient security measures to both deter and prevent unauthorized entrance into areas containing marijuana and theft of marijuana at those facilities, including establishing limited access areas accessible only to authorized facility personnel, and would require these facilities to notify appropriate law enforcement authorities within 24 hours after discovering specified breaches in security. The bill would make enforcement of these provisions the responsibility of the county health departments, with oversight by the department. Violation of these provisions would be punishable by a civil fine of up to $35,000 for each individual violation. By expanding the duties of local health officers, this bill would impose a state-mandated local program.

(2) Existing law, the Medical Practice Act, provides for licensure and regulation of physicians and surgeons by the Medical Board of California.

This bill would establish requirements for a physician and surgeon to recommend medical marijuana, including prescribed procedural and recordkeeping requirements, and would require a recommendation for medical marijuana for a minor to include a specific justification for the recommendation and why the benefit of use is more important than the possible neurological damage that could be caused by the minor using marijuana and to be approved by a board certified pediatrician. The bill would require a physician and surgeon that recommends medical marijuana to report to the board the number of recommendations issued, with supporting documentation on patient medical need.

This bill would require the board to audit a physician and surgeon who recommends medical marijuana more than 100 times in a year to ensure compliance with existing law and would require the board to establish a certification process for physicians who wish to issue medical marijuana recommendations, including a mandatory training in identifying signs of addiction and ongoing substance abuse.

Violation of these provisions would be punishable by a civil fine not to exceed $5,000.

(3) 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.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) The California Constitution grants cities and counties the
authority to make and enforce, within their borders, “all local
police, sanitary, and other ordinances and regulations not in conflict
with the general laws.” This inherent local police power includes
broad authority to determine, for purposes of public health, safety,
and welfare, the appropriate uses of land within the local
jurisdiction’s borders. The police power, therefore, allows each
city and county to determine whether or not a medical marijuana
dispensary or other facility that makes medical marijuana available
may operate within its borders. This authority has been upheld by
City of Riverside v. Inland Empire Patients Health & Wellness,
Inc. (2013) 56 Cal.4th 729 and County of Los Angeles v. Hill
(2011) 192 Cal.App.4th 861.

(b) If, pursuant to this authority, a city or county determines
that a dispensary or other facility that makes medical marijuana
available may operate within its borders, then there is a need for
the state to license these dispensaries and other facilities for the
purpose of adopting and enforcing protocols for training and
certification of physicians who recommend the use of medical
marijuana and for agricultural cultivation practices. This licensing
requirement is not intended in any way nor shall it be construed
to preempt local ordinances regarding the sale and use of medical
marijuana, including, but not limited to, security, signage, lighting,
and inspections.

(c) Given that the current system of all-cash transactions within
the medical marijuana industry is unsustainable in the long term,
there is a need to provide a monetary structure, as an alternative
to the federal banking system, for the operation, regulation, and
taxation of medical marijuana dispensaries.

(d) All of the following elements are necessary to uphold
important state goals:

(1) Strict provisions to prevent the potential diversion of
marijuana for recreational use.

(2) Audits to accurately track the volume of both product
movement and sales.

(3) An effective means of restricting access to medical marijuana
by minors, given the medical studies documenting marijuana’s
harmful and permanent effects on the brain development of youth.

(4) Stricter provisions relating to physicians and their
recommendation procedures in order to address widespread
problems of questionable medical marijuana recommendations by
physicians without a bona-fide doctor-patient relationship with
the person to whom they are issuing the recommendation.

(e) Nothing in this act shall be construed to promote or facilitate
the nonmedical, recreational possession, sale, or use of marijuana.

SEC. 2.  

Article 25 (commencing with Section 2525) is added
to Chapter 5 of Division 2 of the Business and Professions Code,
to read:

 

Article 25.  Recommending Medical Marijuana

 

2525.  

(a) Prior to recommending marijuana to a patient
pursuant to Article 2.5 (commencing with Section 11362.7) of
Chapter 6 of Division 10 of the Health and Safety Code, a
physician and surgeon shall meet all of the following requirements:

(1) Have a bona fide doctor-patient relationship, with medical
marijuana recommendations to be made by a patient’s primary
care physician or by a physician and surgeon to whom the patient
is referred by their primary care physician.

(2) Conduct an in-person examination to establish the patient’s
need for medical marijuana.

(3) Consult with the patient as necessary and periodically review
the treatment’s efficacy.

(b) A physician and surgeon that recommends medical marijuana
shall do all of the following:

(1) Address, in the recommendation, the quantity of use and
method of delivery, including a discussion of side effects. If the
recommended method of delivery is smoking, the recommendation
shall state the reasons for selecting this method of delivery in the
context of health issues created by smoking.

(2) Address, in the recommendation, what kind of marijuana to
obtain, including high tetrahydrocannabinol (THC) levels, low
THC levels, high cannabidiol (CBD) levels, low CBD levels, and
explain the reason for recommending the particular strain. Under
no circumstances shall a physician and surgeon recommend butane
hash oil.

(3) Maintain a system of recordkeeping that supports the
decision to recommend the use of medical marijuana for individual
patients.

(c) A recommendation for medical marijuana provided to a
minor shall include a specific justification for the recommendation
and why the benefit of use is more important than the possible
neurological damage that could be caused by the minor using
marijuana. A recommendation for a minor shall be approved by a
board certified pediatrician. A recommendation for a minor shall
be for high CBD marijuana and all recommendations for minors
must be for nonsmoking delivery.

2525.1.  

(a) A physician and surgeon who recommends medical
marijuana shall report to the California Medical Board the number
of recommendations issued, with supporting documentation on
patient medical need. The board shall forward these reports to the
State Department of Public Health.

(b) A physician and surgeon who makes more than 100
recommendations in a calendar year shall be audited by the
California Medical Board to determine compliance with Article
2.5 (commencing with Section 11362.7) of Chapter 6 of Division
10 of the Health and Safety Code.

2525.2.  

The California Medical Board shall establish a
certification process for physicians who wish to issue medical
marijuana recommendations, including a mandatory training in
identifying signs of addiction and ongoing substance abuse.

2525.3.  

In addition to all other remedies available pursuant to
this chapter, violation of any provision of this article shall be
punishable by a civil fine of up to five thousand dollars ($5,000).

SEC. 3.  

Article 7 (commencing with Section 111657) is added
to Chapter 6 of Part 5 of Division 104 of the Health and Safety
Code, to read:

 

Article 7.  Medical Marijuana

 

111657.  

For purposes of this article, the following definitions
shall apply:

(a) “Department” means the State Department of Public Health.

(b) “Licensed cultivation site” means a facility that grows or
grows and processes marijuana for medical use and that is licensed
pursuant to Section 111657.1.

(c) “Licensed dispensing facility” means a dispensary, mobile
dispensary, marijuana processing facility, or other facility that
provides marijuana for medical use that is licensed pursuant to
Section 111657.1.

111657.1.  

(a) Except as provided in Section 11362.5 of, and
Article 2.5 (commencing with Section 11362.7) of Chapter 6 of
Division 10 of, the Health and Safety Code, a person shall not sell
or provide marijuana other than at a licensed dispensing facility.

(b) Except as provided in Section 11362.5 of, and Article 2.5
(commencing with Section 11362.7) of Chapter 6 of Division 10
of, the Health and Safety Code, a person shall not grow or process
marijuana other than at a licensed cultivation site.

(c) The department shall require, prior to issuing a license to a
dispensing facility or a cultivation site, all of the following:

(1) The name of the owner or owners of the proposed facility.

(2) The address and telephone number of the proposed facility.

(3) A description of the scope of business of the proposed
facility.

(4) A certified copy of the local jurisdiction’s approval to operate
within its borders.

(5) A completed application, as required by the department.

(6) Payment of a fee, in an amount to be determined by the
department not to exceed the amount necessary, but that is
sufficient to cover, the actual costs of the administration of this
article.

(7) Any other information as required by the department.

111657.2.  

The department shall, after consulting with outside
entities as needed, establish standards for quality assurance testing
of medical marijuana, to ensure protection against microbiological
contaminants. Nonorganic pesticides shall not be used in any
marijuana cultivation site, irrespective of size or location.

111657.3.  

(a) A licensed dispensing facility shall not acquire,
possess, cultivate, deliver, transfer, transport, or dispense marijuana
for any purpose other than those authorized by Article 2.5
(commencing with Section 11362.7) of Chapter 6 of Division 10.

(b) A licensed dispensing facility shall not acquire marijuana
plants or products except through the cultivation of marijuana by
that facility, if the facility is a licensed cultivation site, or another
licensed cultivation site.

111657.4.  

(a) A facility licensed pursuant to this article shall
implement sufficient security measures to both deter and prevent
unauthorized entrance into areas containing marijuana and theft
of marijuana at those facilities. These security measures shall
include, but not be limited to, all of the following:

(1) Allow only registered qualifying patients, personal
caregivers, and facility agents access to the facility.

(2) Prevent individuals from remaining on the premises of the
facility if they are not engaging in activity expressly related to the
operations of the facility.

(3) Establish limited access areas accessible only to authorized
facility personnel.

(4) Store all finished marijuana in a secure, locked safe or vault
and in a manner as to prevent diversion, theft, and loss.

(b) A facility licensed pursuant to this article shall notify
appropriate law enforcement authorities within 24 hours after
discovering any of the following:

(1) Discrepancies identified during inventory.

(2) Diversion, theft, loss, or any criminal activity involving the
facility or a facility agent.

(3) The loss or unauthorized alteration of records related to
marijuana, registered qualifying patients, personal caregivers, or
facility agents.

(4) Any other breach of security.

(c) A licensed cultivation site shall weigh, inventory, and
account for on video, all medical marijuana to be transported prior
to its leaving its origination location. Within eight hours after
arrival at the destination, the licensed dispensing facility shall
re-weigh, re-inventory, and account for on video, all transported
marijuana.

111657.5.  

(a) Enforcement of this article shall be the
responsibility of the county health departments, with oversight by
the department.

(b) An enforcement officer may enter a facility licensed pursuant
to this article during the facility’s hours of operation and other
reasonable times to do either of the following:

(1) Conduct inspections, issue citations, and secure samples,
photographs, or other evidence from the facility, or a facility
suspected of being a dispensing facility or cultivation site.

(2) Secure as evidence documents, or copies of documents,
including inventories required pursuant to subdivision (c) of
Section 111657.4, or any record, file, paper, process, invoice,
video, or receipt for the purpose of determining compliance with
this chapter.

(c) A written report shall be made and a copy shall be supplied
or mailed to the owner of the facility at the completion of an
inspection or investigation.

(d) Upon request by the department, local governments shall
provide the department with reports on the number and types of
facilities operating within their jurisdiction.

111657.6.  

In addition to the provisions of this article, a license
granted pursuant to this article shall be subject to the restrictions
of the local jurisdiction in which the facility operates or proposes
to operate. Even if a license has been granted pursuant to this
article, a facility shall not operate in a local jurisdiction that
prohibits the establishment of that type of business.

111657.7.  

Violation of this provision shall be punishable by a
civil fine of up to thirty-five thousand dollars ($35,000) for each
individual violation.

SEC. 4.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.