BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 21|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 21
Author: Wood (D), Bonta (D), Cooley (D), Jones-Sawyer (D), and
Lackey (R), et al.
Amended: 1/21/16 in Senate
Vote: 27 - Urgency
PRIOR VOTES NOT RELEVANT
SENATE GOVERNANCE & FIN. COMMITTEE: 6-0, 1/13/16
AYES: Hertzberg, Nguyen, Beall, Lara, Moorlach, Pavley
NO VOTE RECORDED: Hernandez
SENATE HEALTH COMMITTEE: 7-0, 1/20/16
AYES: Hernandez, Hall, Mitchell, Monning, Pan, Roth, Wolk
NO VOTE RECORDED: Nguyen, Nielsen
SUBJECT: Medical marijuana: cultivation licenses
SOURCE: Author
DIGEST: This bill repeals a March 1, 2016 deadline by which
cities and counties must act on ordinances to regulate or ban
medical marijuana cultivation and allows local governments to
exercise their police powers over certain cultivators of medical
marijuana.
ANALYSIS:
Existing law:
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1)Prohibits the possession, possession with intent to sell,
cultivation, sale, transportation, importation, or furnishing
of marijuana.
2)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
medical marijuana upon the written or oral recommendation or
approval of an attending physician.
3)Provides, pursuant to the Medical Marijuana Regulation and
Safety Act (MMRSA), for the licensing and regulation by both
state and local entities of medical marijuana and its
cultivation.
4)Grants the California Department of Food and Agriculture
(CDFA) sole licensing authority for medical marijuana
cultivation applicants if a city, county, or city and county
does not have land use regulations or ordinances regulating or
prohibiting the cultivation of medical marijuana by March 1,
2016.
5)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.
6)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.
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7)Grants, under the California Constitution, cities and counties
the authority to make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in
conflict with general laws-known as the "police power."
This bill:
1)Deletes a provision of existing law that grants CDFA sole
licensing authority for medical marijuana cultivation
applicants if a city, county, or city and county does not have
land use regulations or ordinances regulating or prohibiting
the cultivation of medical marijuana by March 1, 2016.
2)Deletes the provision of existing law that provides that
exemption from the licensing requirements for qualified
patients and primary caregivers does not limit local
government's ability to regulate or ban medical marijuana
activities by exempt individuals.
3)Specifies that exemption from the licensing requirements for
qualified patients does not limit or prevent a local
government from exercising its police power under the
California Constitution.
4)Makes technical changes.
Background
Until 2015, California's $1 billion medical marijuana industry
was largely unregulated. In response to growing medical
marijuana activity, local governments have sought to exercise
their police powers to regulate or ban activities relating to
medical marijuana. Under this power, many cities in California
permanently banned dispensary operations, while others have
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adopted temporary land use moratoria, adopted regulations
permitting a limited number of dispensaries, or otherwise
regulated the sale, storage, and delivery of medical marijuana.
Other jurisdictions have established "permissive" zoning
ordinances, whereby any land use-such as cultivation of medical
marijuana-that is not explicitly authorized by the ordinance is
prohibited.
State law, including initiatives, generally preempt local
ordinances when the two conflict. However, courts have
generally supported local agencies against claims that
ordinances regulating or banning medical marijuana activities
conflict with the CUA or SB 420 (Vasconcellos, Chapter 875,
Statutes of 2003). In particular, the California Supreme Court
upheld local dispensary bans in City of Riverside v. Inland
Empire Patients Health and Welfare Center (Case S198638, 2013).
In addition, the Third Appellate District Court upheld local
cultivation bans in Maral v. City of Live Oak (Case C071822,
2013). In general, courts have reasoned that nothing in the CUA
or SB 420 expressly or impliedly limited the inherent authority
of a local jurisdiction, by its own ordinances, to regulate the
use of its land, including the authority to provide that
facilities for the distribution of medical marijuana will not be
permitted to operate within its borders. Accordingly, many
California jurisdictions, roughly estimated by the League of
California Cities at 50% pending completion of a statewide
survey, ban the cultivation and sale of medical marijuana
altogether.
Medical Marijuana Regulation and Safety Act. In 2015, the
Legislature enacted MMRSA, a package of legislation that
comprehensively regulates many aspects of medical marijuana
including cultivation, manufacturing, transportation,
distribution, sale, and product safety. The MMRSA comprises
three bills-SB 643 (McGuire, Chapter 719, Statutes of 2015), AB
243 (Wood, Chapter 688, Statutes of 2015), and AB 266 (Bonta,
Chapter 689, Statutes of 2015). Among other actions, the MMRSA
explicitly authorizes local governments to establish a licensing
system for the cultivation of medical marijuana through their
current or future land use authority, and prohibits the
cultivation of medical marijuana without obtaining both a state
license-issued by CDFA-and a local license. However, MMRSA also
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designates CDFA as the sole licensing authority for medical
marijuana cultivation in cities or counties that have not
developed regulations or banned medical marijuana cultivation by
March 1, 2016.
On September 11, 2015, Assemblymember Wood wrote a letter in the
Assembly Journal stating his intent to introduce cleanup
legislation to address three errors in MMRSA, including to
remove the March 1, 2016 deadline and to remove a provision
explicitly authorizing local governments to regulate or ban
cultivation within their jurisdiction.
Faced with the prospect of permanently losing their authority to
regulate medical marijuana cultivation, many cities and counties
are moving quickly to ban medical marijuana cultivation. At
least 19 cities have banned cultivation following the passage of
AB 243, and according to a December 31, 2015 San Francisco
Chronicle article, at least 40 cities and counties across the
state were currently considering bans of medical marijuana
cultivation or have a ban pending approval. Some local
officials want more time to consider the best way to regulate
medical marijuana cultivation in their jurisdictions and adopt
appropriate zoning ordinances.
Comments
Purpose of this bill. The MMRSA contains two inadvertent errors
made at the close of the 2015 legislative session that imposes a
significant burden on local governments and on qualified
patients. First, by permanently making CDFA the sole regulator
of medical marijuana cultivation in cities and counties that do
not have regulations in place by March 1, 2016, this provision
of MMRSA undermines the principle of local control that exists
throughout the remainder of the act. It also creates a very real
risk of a state agency imposing uniform regulations on
cultivation that do not consider the needs and unique
circumstances of local communities. AB 21 provides a
straightforward solution to this issue by removing the deadline
and the related risk of a state takeover of cultivation
licensing. Second, AB 21 addresses concerns with a provision
that could have inadvertently expanded local authority to
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regulate qualified patients and caregivers by tying any ability
of local governments to regulate to their police powers granted
by the California Constitution. These fixes are urgently needed
to stem the tide of cities and counties banning cultivation and
to ensure that the rights of qualified patients and caregivers
are not unreasonably restricted.
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Related Legislation
AB 1575 (Bonta), currently pending referral in the Assembly, was
introduced in January 2016 to address some additional drafting
errors in MMRSA, including an error raised in Assemblymember
Wood's letter to the Journal. Specifically, AB 1575 clarifies
that increased fees for remediation of environmental impacts of
marijuana cultivation shall be levied on only medical marijuana
cultivation activities that require a permit to alter a lake or
streambed, instead of increasing fees on any entity that
requires that type of permit. AB 1575 also requires the
Department of Public Health to establish uniform safety
standards on packaging of medical marijuana, allows the Bureau
of Medical Marijuana Regulation to issue temporary permits for
businesses to perform medical marijuana-related activities,
requires the Bureau to establish standards for the delivery of
medical marijuana and for dispensary employees, and exempts
commercial medical marijuana activity by a licensed person from
criminal penalties associated with the transportation, sale, or
administration of controlled substances in the state. In
addition, two bills address the taxation of medical marijuana
cultivation.
SB 297 (McGuire, 2015), currently pending in the Senate
Appropriations Committee, states the legislature's intent to
impose an excise tax on medical marijuana at the point of sale.
AB 1548 (Wood, 2015), currently pending in the Assembly Revenue
and Taxation Committee, establishes a tax on the cultivation of
medical marijuana to fund environmental restoration and law
enforcement activities related to illegal marijuana cultivation.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified1/21/16)
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Americans for Safe Access
American Civil Liberties Union of California
California Growers Association
California Police Chiefs Association
California State Association of Counties
City of Oakland
City of San Leandro
County of Del Norte
Drug Policy Alliance
League of California Cities
Rural County Representatives of California
Urban Counties of California
OPPOSITION: (Verified1/21/16)
None received
Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
1/22/16 12:41:24
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