BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 34


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          Date of Hearing:  May 27, 2015


                         ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                  Jimmy Gomez, Chair


          AB  
          34 (Bonta) - As Amended May 20, 2015


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:  No


          SUMMARY:


          This bill, titled the Medical Cannabis Regulation and Control  
          Act, creates a comprehensive state licensing and regulatory  
          framework for the cultivation, processing, distribution, testing,  
          and sale of medical cannabis.  The bill includes provisions  








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          related to health and safety standards, which include medical  
          cannabis testing and labeling; record-keeping; security;  
          transportation; taxation; and certification of employees.   
          Specifically, this bill:


          1)Provides that, without limiting the authority of a city or  
            county, the state shall have the exclusive right and power to  
            regulate and license persons for the cultivation, manufacture,  
            transportation, sale, and other related activities regarding  
            medical cannabis in the state.  Specifies it does not intend to  
            preempt any local ordinance or prevent local jurisdictions from  
            adopting or enforcing ordinances that ban or regulate cannabis.


          2)Exempts patients and primary caregivers, as defined, from  
            commercial cannabis activity regulation.  States it shall not  
            apply to, and shall have no diminishing effect on, the rights  
            and protections granted to a patient or a primary caregiver  
            pursuant to the Compassionate Use Act of 1996.


          3)Establishes the Division of Medical Cannabis Regulation and  
            Enforcement, within the Department of Alcoholic Beverage  
            Control (ABC), as the primary regulatory agency as it pertains  
            to the sale, distribution, and transportation of commercial  
            cannabis activity. 


          4)Establishes the Division of Medical Cannabis Manufacturing and  
            Testing, within the State Department of Public Health (CDPH),  
            to administer provisions related to manufacturing, testing, and  
            certification of testing laboratories.  Requires CDPH to adopt  
            labeling, packaging, sanitation, and testing standards.


          5)Establishes the Division of Medical Cannabis Cultivation within  
            the Department of Food and Agriculture (CDFA), to administer  
            provisions related to cultivation of medical cannabis.   








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            Requires CDFA to adopt regulations and standards ensuring  
            cultivation is in compliance with specified environmental and  
            agricultural regulations and practices, and to establish weight  
            and measure standards. Prohibits cannabis cultivation on public  
            lands.


          6)Requires a task force be convened to further specify the  
            appropriate roles of regulatory authorities, and establish  
            communication guidelines. Requires a report to the Legislature  
            by August 1, 2016.


          7)Requires the three divisions to issue tiered licenses specified  
            in the bill, which depend on the level and type of activity,  
            for commercial cannabis activity within their jurisdictions;  
            establish licensing fees; establish applicant and employee  
            qualifications, and requirements related to security, product  
            disposal, marketing, and labeling; and enforce licensure  
            provisions. Prohibits unlicensed activity.


          8)Requires regulatory authorities to charge application  
            processing fees to process licenses and license fees that  
            reflect licensure regulatory costs. Requires license fees to be  
            charged upon issuing a license. Requires fees to be set at an  
            amount that will fairly and proportionately generate sufficient  
            total revenue to fully cover the total regulatory costs.


          9)Establishes the Medical Cannabis Control Fund as a continuously  
            appropriated fund with four specified accounts. Requires fines  
            and penalties to be deposited into an account in the fund,  
            which is available upon appropriation by the Legislature, for  
            the purposes of funding an enforcement grant program.


          10)Requires specified state departments to enter into an  
            interagency agreement to set forth their respective duties and  








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            reimbursement from the fund.


          11)Requires regulatory authorities to adopt, as soon as  
            practicable, emergency regulations establishing provisional  
            licenses. Requires issuance of provisional licenses to  
            individuals and entities that determined to have been, during  
            the 3 months prior to January 1, 2016, conducting commercial  
            cannabis activity in compliance with local ordinances.   
            Considers entities provided immunity under Los Angeles's  
            Measure D as compliant. 


          12)States it does not prevent local jurisdictions from adopting  
            or enforcing a zoning or other law, ordinance, or regulation  
            that regulates the location, operation, or establishment of  
            commercial cannabis activity.  States it does not prevent a  
            city or county from adopting specified local ordinances  
            inconsistent with its provisions.


          13)Makes licensure for persons who are not local permitholders  
            contingent on proof the applicant has received permission from  
            local authorities for commercial cannabis activities.  


          14)Allows local jurisdictions to impose a temporary local  
            suspension of the license of a commercial licensee for up to 30  
            days for violations of this chapter or a local ordinance.


          15)Authorizes boards of supervisors to impose, by ordinance,  
            applicable to voter approval requirements, a tax on  
            cultivation, storing, distributing or selling marijuana by a  
            licensee.  Limits total taxation of state and local authorities  
            to 25 percent of retail prices.


          16)Specifies civil penalties of up to twice the amount of the  








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            license fee for each incident of unlicensed activity.    
            Requires penalties collected pursuant to action brought by the  
            Attorney General to be deposited into the General Fund.


          17)Requires the California Highway Patrol (CHP) to conduct  
            research to determine whether a driver is operating a vehicle  
            under the influence of cannabis, and to assist law enforcement  
            agencies to establish best practices.  Funds this activity  
            through the fines and penalties account.


          18)Requires the Division of Labor Standards Enforcement in the  
            Department of Industrial Relations (DIR) to develop employee  
            competency and training certification standards for cultivation  
            and dispensing.  Creates a one-time $25 registration fee which  
            is deposited in the Fund.  Requires employee certification by  
            January 1, 2019.  


          19)Requires the Division of Occupational Safety and Health (in  
            DIR) to convene an advisory committee to evaluate whether there  
            is a need to develop industry-specific regulations.  Requires  
            the Division of Apprenticeship Standards (in DIR) to adopt  
            regulations governing apprenticeship programs.


          FISCAL EFFECT:


          1)Significant annual costs, likely in excess of $15 million  
            (Medical Cannabis Control Fund / GF or special funds), to  
            create the Division of Medical Cannabis Regulation and  
            Enforcement within the ABC to regulate the medical marijuana  
            industry.  Significant costs would be incurred before fees are  
            collected, and the bill does not specify a funding source  
            startup costs.  Funds would likely come from the GF for at  
            least the first year, until sufficient fee revenue is  
            generated.  If authorized, a loan could also be made from the  








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            Alcohol Beverages Control Fund for a portion of startup costs,  
            but it appears the fund's projected $25 million balance will be  
            needed to support an imbalance between expenditures and  
            revenues for ABC's current programs.

            The current budget of ABC is approximately $60 million and 450  
            positions. The ABC is charged with licensing and regulating  
            persons and businesses engaged in the manufacture, importation  
            and distribution of alcoholic beverages, and administering the  
            provisions of the ABC Act to protect the health, safety,  
            welfare and economic well-being of the state. In addition, the  
            ABC Appeals Board has a $1 million budget.  

            Based on funding and staffing levels of the ABC, and  
            considering the complexities of the undertaking and the  
            significant start-up costs of any new entity (adoption of  
            regulations and fee schedules, office equipment and expenses,  
            etc.), it appears reasonable to assume the costs of providing  
            statewide regulation for cultivation, manufacture, testing,  
            transportation, distribution, and sale of medical marijuana,  
            along with associated hearings, appeals, litigation and  
            enforcement, would conservatively be in the range of 25% of the  
            ABC budget.  

          2)Annual costs, likely in the range of several million dollars to  
            CDPH for regulation of manufacturing and testing (Medical  
            Cannabis Control Fund / GF or special funds), as well as CDFA  
            for regulation of cultivation sites ((Medical Cannabis Control  
            Fund / GF or special funds).   Funds would likely come from the  
            GF or special funds for at least first year until sufficient  
            fee revenue is generated.

          3)This bill establishes unspecified fees that must be sufficient  
            to cover regulatory costs. The costs of creating and  
            maintaining the regulatory infrastructure would require  
            significant application fees. For purpose of illustration, the  
            average fee to cover a $20 million cost, if there were 2,000  
            annual applications, would be $10,000 per application.  









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          4)This bill creates a continuous appropriation from the Medical  
            Cannabis Control Fund to support specified departments.  
            Continuous appropriations are contrary to the general practice  
            of this committee, which prefers annual budget review of  
            expenditures.

          5)Minor and absorbable costs to the Medical Board of California  
            associated with provisions defining specified employment and  
            prescribing behavior as unprofessional conduct.

          6)One-time costs to DIR to certify cultivation and dispensing  
            employees, adopting regulations related to apprenticeship  
            programs, and examining the need for industry-specific  
            regulations, in the range of $1.3 million (GF or special  
            funds), and $900,000 annually ongoing (fee-supported Cannabis  
            Certification Fund /GF or special funds).  

          7)Unknown costs, potentially in the range of $1 million GF to CHP  
            to develop a test determining whether a driver is operating a  
            vehicle under the influence of cannabis, and to develop related  
            protocols. 

          8)Minor ongoing costs to DOJ for background checks, covered by  
            applicant fees. 

          Tax and penalty revenue:

          1)Unknown moderate local revenue increase, potentially in the  
            millions of dollars, from a permissive and unspecified local  
            tax. 

          2)Unknown fine and penalty will be deposited in the fines and  
            penalties account in the Fund.  Penalties are specified as  
            twice license fees, which are unknown. Additionally, each  
            regulatory authority is authorized to define fines and  
            penalties. Potential GF revenue if actions are brought by the  
            Attorney General.
          









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          COMMENTS:





          1)Purpose. According to the author, California has fallen behind  
            the nation and failed to implement a comprehensive licensing  
            and regulatory structure to ensure patient access and protect  
            our environment, public safety, and public health. This bill  
            would create a structure in which patients can safely exercise  
            their right to medical cannabis.  It applies existing  
            regulatory frameworks to this new industry, while adapting for  
            the unique and historical circumstances surrounding medical  
            cannabis. To this end, the bill divides the licensing structure  
            among multiple agencies that have expertise in various  
            industries that have similarities to that of medical cannabis,  
            in addition to requiring these agencies to promulgate  
            appropriate regulations for the medical cannabis industry.  AB  
            34 also ensures that all licensees and transactions between  
            them are tracked in order to fight diversion of medical  
            cannabis.


          2)Current Medical Marijuana Law. Possession and sale of marijuana  
            is a crime under federal law, and federal law preempts state  
            law. California patients who obtain a physician's  
            recommendation are protected from prosecution for possessing or  
            cultivating an amount of cannabis reasonably related to their  
            current medical needs, as are patients' caregivers. Patients  
            and caregivers who obtain a state MMP identification card from  
            their county health department are protected from arrest and  
            prosecution for possessing, delivering, or cultivating  
            cannabis. Patients and caregivers who engage in these  
            activities, however, remain liable to federal arrest and  
            prosecution, and those who operate dispensaries face frequent  
            federal enforcement actions.  A brief history of relevant law  
            is below:








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             a)   In 1996, California voters passed Prop 215, the  
               Compassionate Use Act (CUA), which prohibits prosecution for  
               growing or using marijuana if a person has an oral or  
               written recommendation of a physician. 



             b)   In 2003, SB 420 (Vasconcellos, Statutes of 2003), the  
               Medical Marijuana Program Act, created a voluntary  
               identification card that patients and caregivers could  
               obtain to protect them from arrest, and limited the amount  
               of marijuana that could be legally grown and possessed.
          
             c)   In 2005, the U.S. Supreme Court ruled in Gonzales v.  
               Raich (2005) that the federal government can enforce  
               marijuana prohibitions despite state medical marijuana law. 



             d)   In 2010, the CA Supreme Court ruled in People v. Kelly  
               that the MMP section limiting quantities of cannabis is  
               unconstitutional because it amends a voter initiative. 



             e)   In 2013, the CA Supreme Court held medical marijuana  
               statutes do not preempt a local ban on facilities that  
               distribute medical marijuana, and that municipalities may  
               prohibit such conduct as a public nuisance (City of  
               Riverside v. Inland Empire Patient's Health & Wellness  
               Center).  
          










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             f)   Also in 2013, the U.S. Department of Justice (USDOJ)  
               issued guidance that stated, "In jurisdictions that have  
               enacted laws legalizing marijuana in some form and that have  
               also implemented strong and effective regulatory and  
               enforcement systems to control the cultivation,  
               distribution, sale, and possession of marijuana, conduct in  
               compliance with those laws and regulations" is less likely  
               to threaten federal priorities which include the most  
               significant public threats, including disrupting gang and  
               cartel activities, preventing revenue diversion, etc.  DOJ  
               states where strong state and local regulatory systems  
               exist, "enforcement of state law by state and local law  
               enforcement and regulatory bodies should remain the primary  
               means of addressing marijuana-related activity."  California  
               is the only state that permits medical marijuana in the  
               absence of a robust statewide regulatory system; half of all  
               states have some such system.

          3)Support. A coalition of marijuana growers, the United Food and  
            Commercial Workers Union, American Nurses  
            Association/California, Peace Officers Research Association of  
            California, the California Statewide Law Enforcement  
            Association, and other organizations support this bill.   The  
            Emerald Grower's Association argues the multi-agency approach  
            in this bill ensures that agencies are only responsible for  
            regulating things they are capable of regulating, and also  
            points out the tiered licensing scheme accommodates the  
            different levels and types of activity to be licensed.  They  
            note deference to the regulatory process for the many details,  
            given the complexity and multitude of stakeholders. 

          4)Opposition. This bill is opposed unless amended the California  
            Police Chiefs Association and League of California Cities.  The  
            police chiefs do not believe the ABC is an appropriate  
            administrative department for medical marijuana regulation, and  
            raises concerns regarding the efficacy of state enforcement,  
            instead advocating for an enforcement structure based on local  
            enforcement with state enforcement being secondary.    The  
            League of California Cities writes several of this bill's  








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            provisions set the stage for future litigation, pitting local  
            governments against the state, and against industry  
            participants who have attempted to set up shop in direct  
            violation of local ordinances.  The Family Winemakers of  
            California oppose placement in ABC and are concerned about the  
            potential redirection of alcohol-related license fee revenue. 

          5)Related Legislation. 





             a)   AB 266 (Cooley and Lackey), also on today's calendar,  
               creates a similar statewide regulatory framework, but tasks  
               the Department of Consumer Affairs with licensure duties. 



             b)   AB 243 (Wood), also on today's calendar, requires medical  
               marijuana cultivation (MMC) to be conducted in accordance  
               with state and local laws and best practices, as specified,  
               and would require state agencies to address environmental  
               impacts of MMC and coordinate with local governments in  
               enforcement efforts, and establishes a MMC permitting  
               system.  



             c)   SB 643 (McGuire), pending in the Senate Appropriations  
               Committee, establishes within DCA  a Bureau of Medical  
               Marijuana Regulation, under the supervision and control of  
               the Chief of the Bureau of Medical Marijuana Regulation, and  
               requires the bureau to license and regulate dispensing  
               facilities, cultivation sites, transporters, and  
               manufacturers of medical marijuana and medical marijuana  
               products, subject to local ordinances, and enforced  
               primarily at the local level.  
        








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          1)Prior Legislation.



             a)   AB 1262 (Correa) of 2014, would have established a  
               licensing and regulatory framework for the cultivation,  
               processing, transportation, testing, recommendation and sale  
               of medical marijuana to be administered by the Department of  
               Consumer Affairs (DCA) and enforced primarily at the local  
               level, was held on the Suspense File of this committee. 

             b)   AB 1894 (Ammiano), 2014, would have established the  
               Medical Cannabis Regulation and Control Act to regulate the  
               cultivation, testing, transportation, distribution, and sale  
               of medical cannabis, and created the Division of Medical  
               Cannabis Regulation (division) in the ABC, failed passage on  
               the Assembly floor, 26-33.

             c)   AB 473 (Ammiano), 2013, would have created the Division  
               of Medical Marijuana Regulation and Enforcement within the  
               ABC to regulate cultivation, testing, transportation,  
               distribution, and sale of medical marijuana failed passage  
               on the Assembly floor (35-37).

             d)   AB 2312 (Ammiano), 2012, would have established the  
               Medical Marijuana Regulation and Control Act, authorizing  
               local taxes on medical cannabis and creating a board to  
               regulate the medical cannabis industry, was never heard in  
               the Senate.  

          7)Staff Comments. The DIR is tasked with certifying and annually  
            renewing registration for cannabis workers.  The bill  
            establishes a fee not to exceed $25 for initial registration,  
            but it specifies there shall not be a fee for the annual  
            renewal of registration.  This puts pressure on the GF or  
            special funds to fund whatever ongoing costs are incurred for  
            registration in absence of fee support.  Staff suggests fee  








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            authority be provided in a manner sufficient to fund these  
            regulatory activities without GF or other special fund support.  
              
          Analysis Prepared by:Lisa Murawski / APPR. / (916)  
          319-2081