BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 21
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|AUTHOR: |Wood, Bonta, Cooley, Jones-Sawyer, and Lackey |
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|VERSION: |January 15, 2016 |
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|HEARING DATE: |January 20, | | |
| |2016 | | |
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|CONSULTANT: |Reyes Diaz |
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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. Deletes a provision in
current law that allows local governments to regulate or ban any
MM activity, even by a qualified patient or a patient's primary
caregiver.
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
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cultivation are met.
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:
1)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.
2)Deletes a provision in existing law that allows local
governments to regulate or ban any MM activity, even by a
qualified patient or a patient's primary caregiver.
3)Makes technical changes.
FISCAL
EFFECT : This bill has been keyed nonfiscal.
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. AB 21 also
resolves another drafting error contained in the MMRSA. The
mistake endangers the ability for patients and their primary
caregivers to gain access to their MM. Immediately once the
mistakes came to light, Assemblymember Wood submitted a letter
to the Assembly Journal committing to resolve both issues in
2016. AB 21 is a reflection of the commitment to give local
governments more time to develop thoughtful MM regulations, as
well as protecting the rights of patients and their primary
caregivers. These clean-up measures reflect the deal struck
amongst legislators and stakeholders last year, and represent
the Legislatures' intention to provide a pathway for MM
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businesses to comply with state laws as well as to provide
patients with proper consumer protections.
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.
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) requires local governments to pass MM
ordinances or regulations by March 1, 2016, 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)Related legislation. AB 26 (Jones-Sawyer) requires a state
licensee to institute and maintain a training program for the
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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 set for hearing in the Assembly
Appropriations Committee on January 21, 2016.
AB 1575 (Bonta et al) is clean-up legislation for the MMRSA.
AB 1575 is pending referral in the Assembly.
5)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 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,
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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 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
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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.
6)Support. The American Civil Liberties Union (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. The Drug Policy Alliance (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. The Fresno Cannabis Association argues this bill
is needed because the inadvertent inclusion of the provision
giving local governments the authority to ban all MM activity
negatively affects thousands of MM patients.
7)Support if amended. The California Police Chiefs Association,
California State Association of Counties, League of California
Cities, Rural County Representatives of California, and Urban
Counties of California support this bill if it is amended to
include language that gives local governments the authority to
exercise their police power authority under Article XI,
Section 7 of the California Constitution.
.
SUPPORT AND OPPOSITION :
Support: American Civil Liberties Union
Drug Policy Alliance
Fresno Cannabis Association
Oppose: None received.
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