BILL ANALYSIS Ó AB 21 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 21 (Wood, et al.) As Amended January 21, 2016 2/3 vote. Urgency -------------------------------------------------------------------- |ASSEMBLY: | |(May 18, 2015) |SENATE: |35-3 |(January 25, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- (vote not relevant) Original Committee Reference: NAT. RES. SUMMARY: Amends the recently-enacted Medical Marijuana Regulation and Safety Act (MMRSA) to clarify the authority of cities and counties to regulate medical marijuana cultivation in their jurisdictions. The Senate amendments delete the prior version of the bill and add language that does the following: 1)Deletes a provision of the MMRSA that grants the Department of Food and Agriculture (DFA), beginning March 1, 2016, sole licensing authority for medical marijuana (MM) cultivation applicants in any city or county that lacks land use regulations or ordinances regulating or prohibiting the AB 21 Page 2 cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to MMRSA. 2)Clarifies the limits of an exemption that MMRSA grants to qualified patients or primary caregivers who cultivate MM pursuant to the Compassionate Use Act of 1996 (CUA), but doing the following: a) Deletes language stating that the exemption 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; and, b) Adds language stating that the exemption does not limit or prevent a city or county from exercising its police authority under the California Constitution Article XI, Section 7. 3)Provides that this bill is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect, and provides that the facts constituting the necessity are: to allow local governments to protect the health of their citizens by regulating marijuana at the earliest possible date, it is necessary that this bill take effect immediately. 4)Makes technical corrections. AS PASSED BY THE ASSEMBLY, this bill revised the list of energy-related matters upon which the Air Resources Board must consult with other relevant state agencies when preparing the AB 32 (Núñez), Chapter 488, Statutes of 2006, Scoping Plan, to AB 21 Page 3 include energy efficiency and the facilitation of the electrification of the transportation sector. EXISTING LAW: 1)Prohibits, pursuant to the CUA (also known as Proposition 215, 1996), criminal prosecution 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 MMRSA, for the licensing and regulation by both state and local governments of MM and its cultivation. 3)Provides that, if a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to MMRSA, then commencing March 1, 2016, the division (sic) shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county. 4)Exempts qualified patients and primary caregivers, as specified, from MMRSA's requirements governing the cultivation of MM if certain square footage requirements for cultivation are met. 5)Provides that the exemption outlined in 4) above, does not limit or prevent a city, county, or city and county from regulating or banning the cultivation, storage, manufacture, AB 21 Page 4 transport, provision, or other activity by the exempt person, or impair the enforcement of that regulation or ban. 6)Provides, pursuant to the California Constitution Article XI, Section 7, that a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. FISCAL EFFECT: None COMMENTS: 1)Bill Summary. This bill seeks to correct two inadvertent errors contained in the MMRSA. The first correction eliminates DFA's exclusive authority, which begins March 1, 2016, over licensing for MM cultivation in cities or counties that lack regulations for cultivating MM The second correction attempts to clarify local government authority over MM cultivation as it relates to an exemption in MMRSA for qualified patients and their caregivers who cultivate MM. The MMRSA grants qualified patients and caregivers an exemption from MMRSA's requirements governing MM cultivation under specified conditions. This bill deletes language stating that the exemption "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." Instead, this bill clarifies that the exemption does not limit or prevent a city or county from exercising its police authority granted to it by the California Constitution. This bill is sponsored by the Author. AB 21 Page 5 2)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 businesses to comply with state laws as well as to provide patients with proper consumer protections." 3)Background. Last year, the Legislature approved three measures that collectively established the MMRSA: AB 243 (Wood), Chapter 688, Statutes of 2015; AB 266 (Bonta), Chapter 689, Statutes of 2015; and, SB 643 (McGuire), Chapter 719, Statutes of 2015. The MMRSA established a regulatory framework for the cultivation, manufacturing, transport, distribution, sale and product safety of MM. Included in the MMRSA is a provision that states, "If a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016, the division (sic) shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county." AB 21 Page 6 The MMRSA also exempts qualified patients and primary caregivers from MMRSA's requirements to obtain state and local licenses or permits to cultivate MM for patient use if certain square footage requirements for cultivation are met. However, the MMRSA also states that this exemption "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." In September, Assemblymember Wood stated his intent to introduce clean-up legislation in 2016 to strike these provisions from the MMRSA. Despite Assemblymember Wood's letter to the Assembly Journal and a subsequent open letter to county and city government officials stating his intent to remove the March 1, 2016, deadline from the MMRSA, numerous local jurisdictions have enacted ordinances banning all cultivation of marijuana as an emergency response to the possibility of losing their licensing authority to DFA. In addition, patient advocates have expressed strong objections to the language in MMRSA that allows local governments to ban patients or caregivers from MM activities. This bill represents a compromise among stakeholders to ensure patient access to treatment while providing local control over MM cultivation. 4)Arguments in Support. The American Civil Liberties Union of California, in support, writes, "AB 21 resolves an inadvertent drafting error contained in the Medical Marijuana Regulation and Safety Act (MMRSA) passed last year. Some local jurisdictions believe that they must pass land use regulations for medical marijuana cultivation by March 1st, 2016 to maintain local control over medical marijuana cultivation? AB 21 Page 7 (B)y deleting this provision, AB 21 clarifies the legal landscapes and gives cities and counties clear indication that they will have the same local control over medical marijuana cultivation as they do over all other medical marijuana licensing categories. "AB 12 also resolves another drafting error contained in the MMRSA? (which) endangered the ability of patients and their primary caregivers to cultivate and possess medical marijuana? AB 21 is a reflection of the commitment to give local governments more time to develop thoughtful medical marijuana regulations, as well as protecting the rights of patients and their primary caregivers." 5)Arguments in Opposition. None on file. 6)Amended. This bill was substantially amended in the Senate, and its contents have not been heard by any Assembly committee this legislative session. Analysis Prepared by: Angela Mapp / L. GOV. / (916) 319-3958 FN: 0002604