BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 21 --------------------------------------------------------------- |AUTHOR: |Bonta, Cooley, Jones-Sawyer, Lackey, and Wood | |---------------+-----------------------------------------------| |VERSION: |January 4, 2016 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |January 13, | | | | |2016 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Reyes Diaz | --------------------------------------------------------------- SUBJECT : Medical marijuana: cultivation licenses SUMMARY : Deletes a provision in current law that grants the Department of Food and Agriculture sole licensing authority for medical marijuana (MM) cultivation if a local government does not have land use regulations or ordinances regulating or prohibiting the cultivation of MM by March 1, 2016. Existing law: 1)Prohibits criminal prosecution, pursuant to the Compassionate Use Act (CUA) of 1996, also known as Proposition 215, of a qualified patient with specified illnesses, or a patient's primary caregiver, for the possession or cultivation of MM upon the written or oral recommendation or approval of an attending physician. 2)Provides, pursuant to the Medical Marijuana Regulation and Safety Act (MMRSA), for the licensing and regulation by both state and local entities of MM and its cultivation. 3)Grants the Department of Food and Agriculture (DFA) sole licensing authority for MM cultivation applicants if a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of MM commencing March 1, 2016. 4)Exempts qualified patients and a patient's primary caregiver from obtaining state and local licenses or permits for the cultivation of marijuana for personal use or for use of the qualified patient if certain square footage requirements for cultivation are met. AB 21 (Bonta) Page 2 of ? 5)Provides that exemption from the license or permit requirement does not limit or prevent a city, county, or city and county from regulating or banning the cultivation, storage, manufacture, transport, provision, or other activity by the exempt person, or impair the enforcement of that regulation or ban. This bill: Deletes a provision of existing law that grants DFA sole licensing authority for MM cultivation applicants if a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of MM by March 1, 2016. FISCAL EFFECT : This bill has not been analyzed by a fiscal committee. COMMENTS : 1)Author's statement. According to the author, AB 21 resolves an inadvertent drafting error contained in the MMRSA passed in 2015. Without AB 21, local jurisdictions would be required to pass land use regulations for MM cultivation by March 1, 2016, to maintain local control over MM cultivation, which was never the intention of MMRSA. By deleting this provision, cities and counties will have the same local control over MM cultivation as they do over all other MM licensing categories. 2)CUA. Since the approval of the CUA by voters in 1996, state law has allowed Californians access to MM, and prohibits punitive action against physicians for making MM recommendations. The CUA established the right of patients to obtain and use MM to treat specified illnesses, including any illness for which it provides relief. The CUA prohibits prosecution for cultivating or possessing MM for qualified patients and their primary caregivers. Additionally, the CUA exempts qualified patients and their primary caregivers from California drug laws prohibiting possession and cultivation of MM. 3)MMRSA. The package of bills that comprised the MMRSA, which contained language drafted with input from the Governor's office, Senate and Assembly members and staff, and stakeholders, were: AB 243 (Wood, Chapter 688, Statutes of 2015), AB 266 (Bonta et al, Chapter 689, Statutes of 2015), and SB 643 (McGuire, Chapter 719, Statutes of 2015). The Governor signed these bills on October 9, 2015. AB 21 (Bonta) Page 3 of ? In a letter to the Assembly Journal dated September 11, 2015, Assemblymember Wood expressed his intent to introduce clean-up legislation in the 2016 Legislative Session to address inadvertent drafting errors contained in the MMRSA bills. The letter stated: "I plan to introduce cleanup legislation in the 2016 Legislative Session to strike Section 4 of 11362.777 from the Health and Safety Code, strike out the last sentence in Section 11362.777(g), and clarify in Section 12029(d) of the Fish and Game Code that fees shall only be assessed on cannabis cultivation sites and not on all entities, which was inadvertently kept in AB 243 (2015)." Section 11362.777(c)(4) is the error being addressed in this bill, and the last sentence in Section 11362.777(g) allows local governments to ban all MM activity, even by qualified patients and their primary caregivers. 4)Double referral. This bill is double referred. Should it pass out of the Senate Governance and Finance Committee on January 13, 2016, it will be heard in this Committee. 5)Related legislation. AB 26 (Jones-Sawyer) requires a state licensee to institute and maintain a training program for the licensee's agents and employees regarding compliance with the MMRSA, and would require that an application for state licensure include a detailed description of the applicant's program. AB 26 is pending in the Assembly Business and Professions Committee. AB 1575 (Bonta et al) is clean-up legislation for the MMRSA. AB 1575 is pending referral in the Assembly. 1)Prior legislation. SB 643 (McGuire), AB 243 (Wood), and AB 266 (Bonta et al) were part of a package of bills that comprised the MMRSA, which provides for the licensing and regulation by both state and local entities of MM and its cultivation. SB 1262 (Correa, of 2014) was very similar to a previous version of AB 266 and SB 643, and would have created a Bureau of MM Regulation within the Department of Consumer Affairs (DCA). SB 1262 was held on suspense in the Assembly Committee on Appropriations. AB 21 (Bonta) Page 4 of ? AB 1894 (Ammiano of 2014) would have established the Medical Cannabis Regulation and Control Act and created the Division of Medical Cannabis Regulation and Enforcement within the Department of Alcoholic Beverage Control (ABC) for the purpose of registering people for the cultivation, manufacture, testing, transportation, storage, distribution, and sale of MM within the state subject to specified exemptions for a city or county; provided that the ABC director and its employees who administer and enforce provisions of the Act are peace officers; required the ABC to work with law enforcement entities to implement and enforce the rules and regulations regarding MM and to take appropriate action against businesses and individuals that fail to comply with the law; and authorized a board of supervisors of a county and the governing body of a city to levy, increase, or extend transactions and use taxes on the retail sale of or storage, use, or other consumption of MM or MM-infused products. AB 1894 failed on the Assembly floor. AB 604 (Ammiano of 2013) was substantially similar to AB 1894. AB 604 failed in the Senate Committee on Public Safety. SB 439 (Steinberg of 2013) would have exempted MM collectives and cooperatives from criminal liability for possession, cultivation, possession for sale, sale, transport, importation, and furnishing MM; also clarified Medical Board of California enforcement of MM recommendations, what constitutes unprofessional conduct, and the bar on the corporate practice of medicine. On April 21, 2014, SB 439 was amended to a new purpose. AB 473 (Ammiano of 2013) would have enacted the MM Regulation and Control Act, and created a Division of MM Regulation and Enforcement in the ABC to regulate the cultivation, manufacture, testing, transportation, distribution, and sale of MM. AB 473 failed passage on the Assembly Floor. AB 2312 (Ammiano of 2012) would have established a nine-member Board of MM Enforcement within DCA to regulate the MM industry and to collect fees from MM businesses to be deposited into a new MM Fund. AB 2312 would have authorized local taxes on MM up to five percent. AB 2312 was never heard in the Senate Committee on Business, Professions, and Economic Development. AB 21 (Bonta) Page 5 of ? AB 2465 (Campos of 2012) would have made patient and primary caregiver Medical Marijuana Identification Cards (MMICs) mandatory and required MM collectives to keep copies of members' MMICs. AB 2465 was never heard in the Assembly Committee on Public Safety. SB 1182 (Leno of 2012) would have exempted a MM cooperative or collective that operates within the Attorney General's guidelines from being subject to prosecution for MM possession or commerce, as specified; exempted such an entity and its employees, officers, and members from being subject to prosecution for MM commerce because the entity or its employees, officers, or members received compensation for actual expenses incurred in carrying out activities in compliance with the guidelines. SB 1182 died on the Senate Inactive File. AB 1300 (Blumenfield, Chapter 196, Statutes of 2011) permits a local government to enact an ordinance regulating the location, operation, or establishment of an MM cooperative or collective. Authorizes a local government to enforce such ordinances through civil or criminal remedies and actions; authorizes the local government to enact any ordinance that is consistent with the Medical Marijuana Program (MMP). AB 1017 (Ammiano of 2011) would have made the cultivation of marijuana, except as allowed by the MMP, punishable as a misdemeanor with a penalty of imprisonment in a county jail for a period of not more than one year. AB 1017 died on the Assembly Inactive File. 1)Support. Supporters of this bill, comprised of law enforcement and counties, argue that the March 1, 2016, deadline for local governments to adopt land use regulations or ordinances related to MM was a drafting error and never the intent of the MMRSA. Supporters argue that by deleting this provision, local governments will have the ability to use existing approval processes and timelines when considering their own approach to regulating the cultivation of MM. The League of California Cities further argues that the deadline should not have been included in the final version of the MMRSA and that it conflicts with a critical component of the MMRSA, which is allowing for licensure by the state and local governments. 2)Oppose Unless Amended. The American Civil Liberties Union AB 21 (Bonta) Page 6 of ? (ACLU) argues that the provision in current law that allows local governments to regulate or ban any MM activity may be misinterpreted to allow local jurisdictions to completely ban qualified and seriously ill patients from possessing or cultivating MM, which is in violation of the CUA. ACLU further states that they have consistently opposed bills that purport to allow local jurisdictions to completely ban MM activity by qualified patients. The Drug Policy Alliance (DPA) argues that as currently written this bill validates and reestablishes language that undermines the right of patients to care for themselves with MM recommended by a physician. DPA argues that the MMRSA did not intend to prohibit patients' abilities to provide their own medical care, and that it is urgent for the first bill of 2016 regarding MM to delete language that compromises patients' rights to self-care. The ACLU and DPA both argue that the California Supreme Court has not ruled on the question of whether local jurisdictions may completely ban qualified patients from possessing or cultivating MM, only on the question of whether such jurisdictions may ban dispensaries. 3)Policy comment. At the request of the Chair, AB 266 was amended to ensure that language in the bill not interfere with or violate provisions of the CUA, particularly by limiting access to MM by a qualified patient and the patient's primary caregiver. However, this amendment [striking the final sentence in Health and Safety Code 11362.777(g)] was inadvertently excluded from the final package of bills that was enacted, and was one of the three amendments identified in the Letter to the Journal. This bill contains only one of the three amendments identified in the Letter to the Journal. The Committee may wish to request the author take the other two amendments or, at a minimum, the amendment that was previously accepted at the request of the Chair. 4)Technical amendments. The author requests the following technical amendments in bold, italics, and underline: a. In lines 1 and 2 of the heading: Introduced by Assembly
Member PereaMembers Wood, Bonta, AB 21 (Bonta) Page 7 of ? Cooley, Jones-Sawyer, Lackey, and Woodand Lackey b. In Section 11362.777(c)(1): Except as otherwise specified in this subdivision, and without limiting any other local regulation, a city, county, or city and county, through its current or future land use regulations or ordinance, may issue or deny a permit to cultivate medical marijuana pursuant to this section. A city, county, or city and county may inspect the intended cultivation site for suitability prior tobefore issuing a permit. After the city, county, or city and county has approved a permit, the applicant shall apply for a state medical marijuana cultivation license from the department. A locally issued cultivation permit shall only become active upon licensing by the department and receiving final local approval. A person shall not cultivate medical marijuana prior tobefore obtaining both a permit from the city, county, or city and county and a state medical marijuana cultivation license from the department. SUPPORT AND OPPOSITION : Support: California Police Chiefs Association California State Association of Counties County of Del Norte County of Humboldt County of Merced County of Sacramento County of Siskiyou County of Solano County of Sonoma County of Tulare League of California Cities Rural County Representatives of California Urban Counties of California Oppose: American Civil Liberties Union (unless amended) Drug Policy Alliance (unless amended) -- END -- AB 21 (Bonta) Page 8 of ?