BILL ANALYSIS                                                                                                                                                                                                    



          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  |
          |---------------+-----------------------------------------------|
          |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.

                                      -- END --

          









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