BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 21


                                                                    Page  1





          Date of Hearing:   January 27, 2016


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          AB 21  
          (Wood, et al.) - As Amended January 21, 2016


          SUBJECT:  Medical marijuana: cultivation licenses.


          SUMMARY:  Amends the recently-enacted Medical Marijuana  
          Regulation and Safety Act to clarify the authority of cities and  
          counties to regulate medical marijuana cultivation in their  
          jurisdictions.  Specifically, this bill:


          1)Deletes a provision of the Medical Marijuana Regulation and  
            Safety Act (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 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), by doing  
            the following:










                                                                      AB 21


                                                                    Page  2





             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 Section 7 of Article XI of the California  
               Constitution.


          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 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.



          EXISTING LAW:  


          1)Prohibits, pursuant to the CUA (also known as Proposition  
            215), 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  








                                                                      AB 21


                                                                    Page  3





            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,  
            transport, provision, or other activity by the exempt person,  
            or impair the enforcement of that regulation or ban.

          6)Provides, pursuant to Section 7 of Article XI of the  
            California Constitution, 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 MMRSA.  The first correction eliminates  
            DFA's exclusive authority, which begins March 1, 2016, over  








                                                                      AB 21


                                                                    Page  4





            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.





          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  








                                                                      AB 21


                                                                    Page  5





            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, et al),  
            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  








                                                                      AB 21


                                                                    Page  7





            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?(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 21 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)Urgency Clause.  This bill contains an urgency clause and  
            requires a two-thirds vote of each house.










                                                                      AB 21


                                                                    Page  8






          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Civil Liberties Union of California


          Americans for Safe Access


          California Cannabis Industry Association


          California Chapter of the National Organization for the Reform  
          of Marijuana Laws


          California Growers Association


          California Police Chiefs Association


          California State Association of Counties


          City of Oakland


          City of San Leandro


          County of Del Norte









                                                                      AB 21


                                                                    Page  9






          Drug Policy Alliance


          League of California Cities


          Rural County Representatives of California


          Urban Counties of California




          Opposition


          None on file




          Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958