BILL ANALYSIS Ó
AB 21
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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:
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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
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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
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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
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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."
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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
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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.
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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
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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