BILL ANALYSIS Ó
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THIRD READING
Bill No: SB 1262
Author: Correa (D)
Amended: 5/27/14
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 9-0, 4/21/14
AYES: Lieu, Wyland, Berryhill, Block, Corbett, Galgiani,
Hernandez, Hill, Padilla
SENATE HEALTH COMMITTEE : 6-0, 4/30/14
AYES: Hernandez, Morrell, De León, DeSaulnier, Evans, Wolk
NO VOTE RECORDED: Beall, Monning, Nielsen
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/14
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Medical marijuana: regulation of physicians,
dispensaries, and cultivation sites
SOURCE : California Police Chiefs Association
League of California Cities
DIGEST : This bill makes it unlawful for a physician to
recommend medical marijuana (MM) to a patient if the physician
or their family have a financial interest in the dispensing
facility; requires MM dispensaries and cultivation facilities to
be licensed by the Department of Consumer Affairs (DCA); and
specifies that licensees are subject to local government
restrictions.
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ANALYSIS :
Existing law:
1. Licenses and regulates physicians and surgeons under the
Medical Practice Act (MPA) by the Medical Board of California
(MBC). Requires MBC to take action against a physician who
is charged with unprofessional conduct, as specified.
Requires MBC to prioritize its investigative and
prosecutorial resources to ensure that physicians
representing the greatest threat of harm are identified and
disciplined expeditiously and including those with repeated
acts of excessive prescribing, furnishing, or administering
of controlled substances, or repeated acts of prescribing,
dispensing, or furnishing of controlled substances without a
good faith prior examination of the patient and medical
reason.
2. Prohibits prosecution, under the Compassionate Use Act of
1996 (CUA), for the possession or cultivation of marijuana of
a patient or 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.
3. Declares that the purposes of the CUA are:
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 marijuana 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 in medical need
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of marijuana.
4. States that nothing in the CUA shall be construed to
supersede legislation prohibiting persons from engaging in
conduct that endangers others, or to condone the diversion of
marijuana for non-medical purposes.
5. 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.
6. States Health and Safety Code (HSC) Sections 11357 and
11358, 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 marijuana for
the personal medical purposes of the patient upon the written
or oral recommendation or approval of a physician.
7. Defines "primary caregiver" for purposes of the CUA as the
individual designated by a patient who has consistently
assumed responsibility for the housing, health, or safety of
that person.
8. Requires the Department of Public Health to establish and
maintain a voluntary Medical Marijuana Program (MMP) for
qualified patients to apply for identification cards, and
county health departments to issue identification cards to
qualified patients and their caregivers.
9. Provides that qualified patients, persons with valid
identification cards, and the designated primary caregivers
of qualified patients and persons with identification cards
who associate within the state in order to cultivate
marijuana for medical purposes, collectively or
cooperatively, shall not, solely on that basis, be subject to
state criminal sanctions for the possession, sale, transport,
or other proscribed acts relating to marijuana.
10.Makes it a misdemeanor offense to, among other things,
fraudulently represent a medical condition or provide any
material misinformation to a physician, health department
designee, or to law enforcement, for the purpose or falsely
obtaining an identification card; fraudulently use any
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person's identification card in order to acquire, possess,
cultivate, transport, use, produce, or distribute marijuana;
counterfeit, tamper with, or fraudulently produce an
identification card; or breach any confidentiality
requirements pertaining to an identification card program.
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.
12.Provides that qualified patients, persons with valid
identification cards, and their designated primary caregivers
who associate in order to collectively or cooperatively to
cultivate marijuana are not subject to criminal liability on
that basis.
13.Prohibits MM dispensaries that possess, cultivate, or
distribute MM from being located within a 600-foot radius of
a school, and authorizes cities and counties to further
restrict the locations of MM collectives.
14.Lists marijuana as a hallucinogenic substance in Schedule I
of the California Uniform Controlled Substances Act.
This bill:
1. Makes a legislative declaration that the police power, as
specified, allows each city and county to determine whether
or not an MM facility may operate within its borders and
that, when there are MM facilities, there is a need for the
state to license them and, among other things, prevent the
potential diversion of MM for recreational use.
Physicians/MBC Provisions
2. Makes it unlawful for a physician who recommends marijuana
to a patient for a medical purpose to accept, solicit or
offer any form of remuneration from or to a licensed facility
if the physician or his/her immediate family has a financial
interest, as specified.
3. Requires MBC to consult with the California Marijuana
Research Program (Center for Medicinal Cannabis Research) on
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developing and adopting medical guidelines for the
appropriate administration and use of marijuana.
DCA Licensing Provisions
4. Prohibits a person from selling or providing marijuana other
than at a licensed dispensing facility.
5. Prohibits a person from growing or processing marijuana
other than at a licensed cultivation site.
6. Defines the following terms:
A. "Licensed cultivation site" means a facility that
grows or grows and processes marijuana for medical use and
that is licensed, as specified.
B. "Licensed dispensing facility" means a dispensary,
mobile dispensary, marijuana processing facility, or other
facility that provides marijuana for medical use that is
licensed, as specified.
1. Requires DCA, prior to issuing a license to a dispensing
facility or a cultivation site, to obtain from each proposed
facility:
A. The name of the owner(s) and the address and telephone
number of the proposed facility.
B. A description of the scope of the proposed business.
C. A certified copy of the local jurisdiction's approval
to operate within its borders.
D. A completed application, as required by DCA.
E. Payment of a fee, in an amount determined by DCA,
sufficient to cover but not exceed the actual costs of the
administration of the licensing provisions.
F. An applicant's fingerprint images and related
information required by the Department of Justice (DOJ) to
obtain information as to the existence and content of a
record of state and federal convictions and arrests, as
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specified:
(1) Requires DOJ to forward the fingerprint images
and related information received to the Federal Bureau
of Investigation (FBI) and request a federal summary of
criminal information.
(2) Requires DOJ to review the information returned
from the FBI and compile and disseminate a response to
DCA.
(3) Requires DOJ to charge a fee sufficient to cover
the reasonable cost of processing the requests
described.
(4) Allows DCA to deny a license based on a past
criminal conviction if the crime is substantially
related to the qualifications, functions, or duties of
the business for which the license will be issued.
A. Any other information, as required by DCA.
1. Imposes certain requirements and prohibitions upon a
licensed dispensing facility, including:
A. Prohibiting acquiring, possessing, cultivating,
delivering, transferring, transporting, or dispensing
marijuana for any purpose other than those authorized by
the MMP.
B. Prohibiting the acquisition of 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.
1. Prohibits the distribution of any form of advertising for
physician recommendation of MM unless the advertisement bears
a notice to consumers indicating that the CUA ensures access
to MM when the use is deemed appropriate and in accordance
with accepted standards of medical responsibility.
2. Requires any advertising for physician recommendation for MM
to meet the advertising requirements of the MPA, and
specifically prohibits fraudulent, deceitful, or misleading
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statements, including statements or advertisements of bait,
discounts, premiums, gifts, or any statements of a similar
nature.
3. Requires implementing sufficient security measures to deter
and prevent unauthorized entrance into areas containing
marijuana and theft of marijuana at those facilities. The
security measures shall include, but not be limited to, (a)
limiting access to the facility to only qualifying patients,
the patient's primary caregiver, and facility agents; (b)
preventing unauthorized individuals from remaining on the
premises; (c) establishing limited access areas accessible
only to authorized facility personnel; and (d) storing
marijuana in a secure, locked safe or vault to prevent
diversion, theft, and loss.
4. Requires a licensed facility to notify law enforcement
within 24 hours after discovering discrepancies during the
inventory, diversion, theft, loss, or any criminal activity
involving the facility or a facility agent, any loss or
unauthorized alteration of facility records, and any breach
of security.
5. Requires a licensed cultivation site to weigh, inventory,
and video, all MM to be transported prior to its leaving its
origination location. Requires a licensed dispensing
facility, within eight hours after arrival at the
destination, to reweigh, reinventory, and video, all
transported marijuana.
Local Government Provisions
6. Makes a facility license subject to the restrictions of the
local jurisdiction in which the facility operates or proposes
to operate. Specifies that even if a license has been
granted by DCA, a facility shall not operate in a local
jurisdiction that prohibits the establishment of that type of
business.
7. Makes violation of the licensing provisions punishable by a
civil fine of up to $35,000 for each individual violation.
8. Specifies that nothing shall prevent a city or other local
governing body from taking action as specified in HSC Section
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11362.83 relating to MM cooperatives or collectives.
Background
Since the approval of the CUA by voters in 1996, commonly known
as Proposition 215, state law has allowed Californians access to
marijuana for medical purposes, and prohibited punitive action
against physicians for making MM recommendations. SB 420
(Vasconcellos, Chapter 875, Statutes of 2003) allowed patients
and primary caregivers to cultivate marijuana for personal use
and established, in the DPH, an MM card program for patients to
use on a voluntary basis.
In the intervening 11 years, although there have been several
legislative attempts, no broader, feasible regulatory structure
has been established, and the implementation of the CUA has been
marked by conflicting authorities, regulatory issues,
intermittent federal enforcement action, and a series of
lawsuits which have tested the limits of the CUA, and focused on
the extent of the authority of local government.
The author's office indicates that most attempts at MM
legislation in California have been geared toward state
pre-emption, and unsympathetic to the authority of local
government. None have been health-based, despite the medical
rationale that spawned the CUA. None have sought to impose any
health and safety standards, despite the fact that the
regulatory structure they tried to establish would have
exercised oversight over what is known to be a psychotropic
substance. And finally, no legislation has squarely addressed
the many public safety concerns triggered by such a regulatory
scheme, according to the author's office.
California Attorney General's compassionate use guidelines . In
2003, SB 420 additionally required the California Attorney
General to adopt "guidelines to ensure the security and
non-diversion of marijuana grown for medical use" (Health and
Safety Code Section 11362.81 (d)). To fulfill this mandate, in
August 2008, the Attorney General published Guidelines for the
Security and Non-Diversion of Marijuana Grown for Medical Use.
The Guidelines are intended to (1) ensure that marijuana grown
for medical purposes remains secure and does not find its way to
non-patients or illicit markets, (2) help law enforcement
agencies perform their duties effectively and in accordance with
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California law, and (3) help patients and primary caregivers
understand how they may cultivate, transport, possess, and use
MM under California law.
Marijuana - A Schedule 1 drug . Even though California voters
enacted the CUA to permit the use of marijuana for medical
purposes by persons deemed qualified by their physicians,
marijuana still is an illegal drug both under federal and state
law, and its use, possession, distribution, cultivation, or sale
carries criminal penalties. Under California law, marijuana is
listed as a hallucinogenic substance in Schedule I of the
California Uniform Controlled Substances Act. Under federal
law, possession of marijuana, even by medical users, continues
to be a crime. The federal Controlled Substances Act specifies
that, except as provided, it is unlawful for any person
knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense a controlled substance. The only exception provided in
the Controlled Substances Act for marijuana, a Schedule I drug,
is for its use in government-controlled research projects.
Thus far, calls to reclassify marijuana to remove it from the
list of Schedule I drugs have not resulted in any change in
classification. Since marijuana is a Schedule I drug, the
medical community is unable to do any substantive clinical
trials, controlled studies or peer-reviewed research.
U.S. Department of Justice (USDOJ) Guidance Regarding Marijuana
Enforcement . In August 2013, the USDOJ issued a memorandum
titled "Guidance Regarding Marijuana Enforcement" to all U.S.
Attorneys. The memorandum updated the prior guidance given by
USDOJ regarding marijuana enforcement under the federal
Controlled Substances Act, in light of state ballot initiatives
that legalize marijuana under state laws and that provide for
the possession and use of small amounts of marijuana. While
affirming that marijuana is still, at the federal level,
considered a dangerous drug and that the illegal distribution
and sale of marijuana is a serious crime, the memorandum
outlines enforcement priorities that are particularly important
to the federal government, including:
Preventing distribution to minors;
Preventing revenue from marijuana from going to criminal
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enterprises;
Preventing diversion to other states where marijuana is not
legal under state law;
Preventing state-authorized marijuana from being a cover for
trafficking in other illegal drugs or illegal activity;
Preventing violence in cultivating and distributing
marijuana;
Preventing drugged driving and other public health problems
from marijuana use; and
Preventing growing, possessing or using marijuana on public
lands or on federal property.
The document clearly lays out the federal expectation for the
states that have legalized marijuana, even if only for medical
purposes, that they will develop a robust system of regulation
and enforcement, and that such a system will reduce the
likelihood of federal enforcement activity.
Local control of MM dispensaries . In 2013, the California
Supreme Court in City of Riverside v. Inland Empire Patients,
upheld that local governments have inherent zoning power. The
issue in this case was whether California's MM statutes preempt
a local ban on facilities that distribute MM. The Court
concluded they do not and upheld the City of Riverside's
implementation of a ban on MM dispensaries and on any facility
that is prohibited by federal or state law.
Comments
According to the author's office, this bill is aimed at setting
tighter regulations on doctors who issue MM recommendations.
This bill requires all marijuana dispensing facilities and
cultivations sites to be licensed by DCA. Approval from local
jurisdictions will be required as part of the state license.
The author's office states that this bill also upholds local
governments' ability to ban MM dispensaries and all related
facilities, and outlines security measures for all MM
facilities.
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The author writes, "While medical marijuana is legal in
California, the industry is poorly regulated. Existing laws
lack appropriate standards for medical marijuana
recommendations, cultivation, processing and sales. SB 1262
will require licensing, protect local authority, and establish
security measures for the sale of medical marijuana."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
One-time costs of about $900,000 to develop and adopt
regulations and provide training to new staff by DCA (General
Fund).
Ongoing costs of about $1.1 million per year to process
license applications, conduct spot inspections to verify
compliance with regulatory requirements, review complaints,
and assess civil penalties (Licensing and Certification
Program Fund).
Minor anticipated costs to review and update existing
guidelines for physicians regarding MM by MBC (Contingent
Fund of the MBC).
SUPPORT : (Verified 5/27/14)
California Police Chiefs Association (co-source)
League of California Cities (co-source)
Americans for Safe Access
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Association of Code Enforcement Officers
California Fraternal Order of Police
Cities Association of Santa Clara County
Cities of Adelanto; Beaumont, Calimesa, Canyon Lake, Chowchilla,
Colton, Concord, Covina, Del Mar, Dublin, Encinitas, Etna,
Fortuna, Garden Grove, Gardena, Glendora, Hemet, Highland,
Indio, La Palma, Lathrop, Lodi, Merced, Modesto, Montclair,
Norwalk, Patterson, Rancho Cordova, Rancho Cucamonga, Rancho
Mirage, Rosemead, Sacramento, San Carlos, San Luis Obispo, San
Ramon, Tulare, and Woodland
Colma Police Department
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Covina Police Department
El Cerrito Police Department
El Monte/South El Monte Chamber of Commerce
Encouraging Faith Ministries
Greater Merced Chamber of Commerce
International Faith Based Coalition
Long Beach Police Officers Association
Los Angeles County Police Professional Peace Officers
Association
Los Angeles Police Protective League
Mammoth Lakes Police Department
Patient Advocacy Network
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
San Diego County District Attorney
Santa Ana Police Officers Association
Smart Approaches to Marijuana (Project SAM)
Town of Colma Police Department
Town of Danville
OPPOSITION : (Verified 5/27/14)
American Academy of Cannabinoid Medicine
Butte County Board of Supervisors
California Medical Association
County Health Executives Association of California
County of San Bernardino
Drug Policy Alliance
Health Officers Association of California
Imperial County Board of Supervisors
Law Enforcement Against Prohibition
Urban Counties Caucus
Yolo County Board of Supervisors
ARGUMENTS IN SUPPORT : A sponsor of the bill, the California
Police Chiefs Association, writes that the policy underlying
this bill is the need for inclusive and substantial reform of
the CUA, which has had troublesome issues, including the ability
of virtually anyone to obtain a recommendation for MM. The
other sponsor, the League of California Cities, writes that the
state had been unable to enact a regulatory structure that both
ensures patient access to MM while recognizing laws that
authorize local regulations and address safety concerns. A
coalition of other supporters argues that the CUA lacked a
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responsible, health-based regulatory scheme that upholds local
control and includes important health and safety requirements.
Supporters also argue that local governments should have a
prominent role in any regulatory process for MM.
ARGUMENTS IN OPPOSITION : Law Enforcement Against Prohibition
states that patients need dispensaries and a safe place to
access MM instead of forcing them to go to other cities to find
it, which benefits the criminal element and threatens patient
safety.
MW:k 5/27/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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