BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 243 |Hearing |7/8/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Wood |Tax Levy: |Yes | |----------+---------------------------------+-----------+---------| |Version: |7/3/15 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba and Grinnell | |: | | ----------------------------------------------------------------- MEDICAL MARIJUANA CULTIVATION Enacts a new regulatory framework for the cultivation of medical marijuana and authorizes the Board of Equalization to tax medical marijuana cultivation. Background and Existing Law The Compassionate Use Act (CUA) and SB 420. In 1996, voters approved Proposition 215, known as the Compassionate use Act of 1996 (CUA). The CUA allowed patients and primary caregivers to obtain and use medical marijuana, as recommended by a physician, and prohibited physicians from being punished or denied any right or privilege for making a medical marijuana recommendation to a patient. In 2003, SB 420 (Vasconcellos, 2003) allowed patients and primary caregivers to collectively and cooperatively cultivate medical marijuana, and established a medical marijuana card program for patients to use on a voluntary basis. However, since the passage of Proposition 215 and SB 420, the state has not adopted a framework to provide for appropriate licensure and regulation of medical marijuana. In addition, despite the CUA and SB 420, marijuana is still illegal under state and federal law. Local Authority Over Medical Marijuana. By exempting qualified patients and caregivers from prosecution for using or from AB 243 (Wood) 7/2/15 Page 2 of ? collectively or cooperatively cultivating medical marijuana, the CUA and SB 420 essentially authorized the cultivation and use of medical marijuana. These laws have triggered the growth of medical marijuana dispensaries in many localities, and in response, local governments have sought to exercise their police powers to regulate or ban activities relating to medical marijuana. After numerous court cases and years of uncertainty relating to the ability of local governments to control medical marijuana activities, particularly relating to the ability to control the zoning, operation, and existence of medical marijuana dispensaries, the California Supreme Court (Court), in City of Riverside v. Inland Empire Patients (2013) 56 Cal. 4th 729, held that California's medical marijuana statutes do not preempt a local ban on facilities that distribute medical marijuana. The Court held 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. Environmental Concerns. According to some estimates, there are 30,000 cultivation sites in the tri-county area of Humboldt-Mendocino-Trinity, and an additional 10,000 or more cultivation sites elsewhere in California. As a result, California land, watersheds, and some species have been significantly damaged by some cultivation operations. "Trespass grows", which cultivate marijuana without permission on public, tribal or privately owned land, have been associated with wildlife poisoning, use and dumping of fertilizers and pesticides, illegal water diversions and water pollution, logging and land disturbance, and severe problems with garbage and human waste. These industrial-size marijuana grows, taking place in the National Forests and on private timberland in some of the state's most remote and ecologically sensitive areas, are the subject of a recent study by the California Department of Fish and Wildlife (CDFW), "Impacts of Surface Water Diversions for Marijuana Cultivation on Aquatic Habitat in Four Northwestern California Watershed," which showed that during AB 243 (Wood) 7/2/15 Page 3 of ? drought conditions, water demand for marijuana cultivation exceeded stream flow in three of four study watersheds and that diminished stream flow from this water-intensive activity is likely to have lethal to sub-lethal effects on salmon and steelhead trout, which are listed under the state and federal Endangered Species Acts, and cause further decline of sensitive amphibian species. In response, the Budget Act of 2014 appropriated resources for both CDFW and the State Water Resources Control Board to reduce environmental damage caused by marijuana cultivation on private and high value state-owned public lands in California. A total of $3.3 million was allocated to the two agencies to create a multi-disciplinary Marijuana Task Force, and to implement a priority-driven approach to address the natural resources damages from marijuana cultivation on private lands in northern California and on high conservation value public lands. This program was authorized as a pilot program for five years. Some organizations want to remedy the environmental effects of past marijuana cultivation and regulate medical marijuana cultivation more consistently throughout the state. Proposed Law Assembly Bill 243 prohibits the cultivation of medical marijuana without first obtaining a license or permit from both the state and the relevant city or county, or city and county, in which the cultivation will occur. To carry out this prohibition, AB 243 establishes new regulatory requirements for medical marijuana cultivation and taxes marijuana cultivation, as described below. However, qualified patients and primary caregivers, as defined under Proposition 215, may cultivate marijuana without state or local licenses, unless a local government imposes a separate requirement. State Regulation of Cultivation. The bill creates a Division of Medical Cannabis Cultivation (the Division) within the California Department of Food and Agriculture (CDFA) to oversee implementation of the new state regulatory program and issue state licenses for cultivation. The Division is headed by a gubernatorial appointee. The bill charges the Division with establishing a program to uniquely identify medical marijuana AB 243 (Wood) 7/2/15 Page 4 of ? plants, in consultation with the State Water Resources Control Board and the Department of Fish and Wildlife. The program must issue a unique identifier to each plant that enables identification of permitted plants as they are being cultivated. The unique identifier must be attached to the base of the marijuana plant. In implementing the program, the Division must consider water use and environmental impacts. The Division may also charge a reasonable fee to cover the cost of issuing the unique identifiers and monitoring, tracking, and inspecting permitted plants. Local Authority. AB 243 also authorizes a city, county, or city and county, through its current or future land use regulations or ordinance, to issue or deny permits that allow the cultivation of medical marijuana, with the condition that the permit does not become active until the cultivator receives a state license and final local approval. The local government may inspect the site proposed for cultivation prior to issuing the permit. AB 243 prohibits a cultivator from applying for a state license without receiving the required local approval, or if the local government has prohibited medical marijuana cultivation. If the relevant local government has not implemented a local permitting system by March 1, 2016, the Division becomes the sole regulator in that jurisdiction. However, the bill also allows a local government to choose to administer the unique identification program in place of the state by adopting a resolution or ordinance before July 1, 2018. In addition, the state program does not apply in cities or counties that have an existing program for the unique identification of marijuana plants. Taxing Provisions. AB 243 directs the Board of Equalization (BOE) to administer and collect a tax on cultivating medical marijuana at a rate of $50 per plant that has a unique identifier, administered according to the Fee Collections Procedures Law. Medical marijuana distributors collect the tax as a separately stated item from licensed cultivators, and may retain reimbursement for its costs according to regulations BOE will prescribe. The cultivator is liable for the tax until the distributor pays BOE, and the tax is due and payable on the last day of the month following each quarterly period. Distributors must register with BOE and supply specified information, and pay AB 243 (Wood) 7/2/15 Page 5 of ? the tax electronically. The measure contains provisions for BOE to implement the tax, including authority to issue regulations. The bill bars cultivators from selling marijuana products or any other sales of medical marijuana to anyone other than a licensed distributor, and cultivators cannot sell plants without unique identifiers. BOE must deposit revenues less administrative costs in the Marijuana Production and Environment Mitigation Fund, which the bill creates. The bill continuously appropriates the revenues to BOE and specifies that BOE must distribute the $50 per plant charge in the following manner: $5 to the Division to administer the unique identifier program; $15 to the division for a competitive grant program that allocates funds to state and local law enforcement agencies to prosecute illegal marijuana cultivation. A local law enforcement agency is only eligible for these funds if its local government chooses to administer the unique identifier program. $15 to the California Natural Resources Agency to fund a competitive grant program for environmental cleanup and restoration. Of that $15, at least 35% must be used on public lands and 20% must be used on private lands. The agency must develop guidelines for the grant process by April 1, 2016. $15 to the multiagency task force to address the environmental impacts of cannabis cultivation. Required Reporting. The bill requires several reports to be submitted by January 1, 2021, including reports by: BOE, on the total amount of revenue collected from the tax on cultivation. The multiagency task force, on the progress of the project to address environmental impacts of cannabis cultivation and the use of funds received from the tax. The California Department of Justice, on the use of funds provided by the tax to state and local law enforcement The California Natural Resources Agency, on the use of funds for environmental restoration. Environmental Regulation. AB 243 states the Legislature's intent that the multiagency task force should continue on a permanent basis. It also directs state agencies to address the environmental impacts of medical marijuana cultivation and AB 243 (Wood) 7/2/15 Page 6 of ? coordinate with cities and counties, where appropriate, on law enforcement efforts. The bill also requires all Regional Water Quality Control Boards, and authorizes the State Water Resources Control Board (SWRCB) to take various regulatory actions to address discharges of waste resulting from medical marijuana cultivation and the associated environmental effects. State Revenue Impact No estimate. Comments 1. Purpose of the bill . The cultivation of marijuana has caused significant damage to California's natural environment. The potential for future damage is made all the greater by the lack of regulation of the medical marijuana industry, and in particular, the cultivation of medical marijuana. AB 243 creates a regulatory framework around cultivation. The unique identification program allows for the tracking of medicinal marijuana plants to ensure that marijuana is not being diverted to the black market and also allows law enforcement to determine which plants are legally being cultivated for medical purposes and which are being illegally cultivated. This enables swifter eradication actions against illegal grows while avoiding the accidental eradications of legal medicinal plantings. Furthermore, AB 243 establishes a tax that meets an urgent need for funding to address the impacts of illegal marijuana cultivation. This need is made all the more dire by the current drought, which exacerbates the harm caused by the illegal diversion of water to cultivate marijuana. 2. Home Rule . AB 243 prohibits a local government from deciding to administer the unique identification program after July 1, 2018. This limits local governments' ability to adjust to changes to a relatively nascent industry. Although currently concentrated in the "Emerald Triangle," future policy changes and other factors could significantly change where marijuana is cultivated in the state after the July 1, 2018 date has passed. As a result, some jurisdictions that initially saw no need to administer the program themselves may be prevented from responding to emerging marijuana-related challenges at the local level. Furthermore, the measure is unclear on the scope of AB 243 (Wood) 7/2/15 Page 7 of ? CDFA's regulatory authority and how this authority interacts with local governments' exercise of their police powers. Would their authority be limited to simply issuing unique identifiers to anyone who paid the fee? Or, when considering water use and environmental impacts, would CDFA be able to place additional conditions on the state license, such as to specify the locations where marijuana can be cultivated or how it is grown? In jurisdictions where no local agencies chose to act by July 1, 2018, would CDFA regulations completely preempt local authority to regulate marijuana cultivation? The bill raises serious questions about whether state authority should trump local decisions on the issue of medical marijuana. 3. Let's be clear . The measure is ambiguous on several points, including the following: AB 243 provides that the regulatory program is to be overseen by an appointee within CDFA. However, the taxing provisions of the measure would be implemented by the Board of Equalization. It is unclear whether an appointee at CDFA is intended to direct the BOE taxing effort. It is unclear whether this measure is intended to apply to all cities and counties in the state. AB 243 may not apply to charter cities, which are afforded additional control over their "municipal affairs" by the California Constitution, because it does not include findings and declarations identifying marijuana cultivation as a matter of statewide concern. The bill does not clearly state that receiving a unique identifier is sufficient-or even necessary-for a cultivator to receive a license from the state. 4. Redundant . AB 243 states that local governments may use their current and future land use regulatory authority to issue or deny cultivation permits. However, local agencies already possess this authority under the police power granted to them by the Constitution. Thus it is unclear what additional powers AB 243 grants local governments. The bill also adds unnecessary complication and administrative costs for local governments by requiring a "conditional permit" at the local level that only goes into effect when a state license is issued. Because AB 243 already prohibits the cultivation of marijuana without both a state license and local permit, where applicable, a cultivator who only possesses a local permit could not cultivate marijuana, regardless of whether the local permit was conditional or final. AB 243 (Wood) 7/2/15 Page 8 of ? 5. Taxing . AB 243 seeks to apply a tax infrastructure on medical marijuana cultivation, a currently unregulated sector of the economy. BOE would have to identify every cultivator and distributor in the state, register them, and enforce the tax on a set of taxpayers that currently lack a relationship with BOE in a manner sufficient to prevent noncompliance by June 1, 2016. However, the measure's tax provisions are sparse, and don't contain needed definitions and other provisions necessary for BOE to implement the bill even if it were practically possible to impose a tax regime on a currently black market. Additionally, implementing such a tax could be very costly to administer because of the required spending on personnel, equipment, and information technology. Furthermore, although this bill's intent is to raise funds quickly to address the environmental impacts of cultivation, it is unclear whether this tax will begin collecting funds as quickly as hoped. There are other sources of funding, such as the General Fund or bond funds made available by a recently passed state water bond that could be available to fund restoration sooner if the Legislature determined that this was more important than other priorities. 6. Related legislation . There are two other medical marijuana bills progressing through the Legislature that establish comprehensive regulatory programs and levy fees on medical marijuana. Senate Bill 643 (McGuire), which the Committee passed earlier this year by a vote of 5-1, enacts the Medical Marijuana Public Safety and Environmental Protection Act. SB 643 is currently pending in the Assembly Business and Professions Committee. SB 643 creates a regulatory structure for many aspects of medical marijuana in California, but differs from AB 243 in many respects, including that it: Establishes an office within the Business, Consumer Services, and Housing Agency to license and regulate dispensing facilities, cultivation sites, transporters, and manufacturers of medical marijuana and medical marijuana products, and describes a comprehensive set of rules to govern those activities, rather than establishing an office within CDFA to solely regulate cultivation. Allows local jurisdictions to levy local taxes, subject to voter approval, on the privilege of cultivating, dispensing, producing, processing, preparing, storing, providing, donating, selling, or distributing marijuana, rather than imposing a state tax on cultivation. AB 243 (Wood) 7/2/15 Page 9 of ? Distributes funding to a wide range of state environmental agencies to enforce regulations related to the environmental impact of licensed cultivation sites, rather than directing the SWRCB and CDFW to address the impacts and continue their pilot project. Clarifies that it does not supersede local zoning requirements or enforcement of local licensing requirements. AB 266 (Bonta), which the Committee will hear on July 15, enacts the Medical Cannabis Regulation and Control Act. AB 266 also creates a broad regulatory structure for many aspects of medical marijuana in California, and differs from AB 243 in many respects, including that it: Establishes multiple offices in various state agencies, under the direction of a newly created Governor's Office of Medical Cannabis Regulation, for the regulation of medical marijuana, including within the BOE, CDFA, and Department of Public Health. AB 243 creates the same office within CDFA, but not the other offices created by AB 266. Provides for the regulation and licensing of medical marijuana dispensaries, transporters, dispensaries, manufactures, and certification of employees and testing laboratories in addition to regulating and licensing cultivation, and authorizes the collection of licensing fees. Requires the adoption of health and safety standards for medical cannabis, as well as standards for driving under the influence of marijuana. Allows local jurisdictions to levy local taxes, subject to voter approval, on the privilege of cultivating, dispensing, producing, processing, preparing, storing, providing, donating, selling, or distributing marijuana, rather than imposing a state tax on cultivation. Provides that nothing in the Act prevents a local government from adopting or enforcing an ordinance or other law that bans or regulates the location, operation, or establishment of a licensee or other person that engages in commercial cannabis activity. Requires DFW to promulgate regulations for the protection of any species affected by cultivation activity, and regulations for any cultivation-related development, including alteration of waterways, in addition to requiring SWRCB to develop regulations on discharges AB 243 (Wood) 7/2/15 Page 10 of ? 7. Double-referred . The Senate Rules Committee ordered a double-referral of AB 243 --- first to the Senate Governance and Finance Committee, which has jurisdiction over bills relating to local agencies' land use authority, and then to the Senate Environmental Quality Committee, which has jurisdiction over bills relating to water quality, toxic substances, pesticides, and waste discharges. 8. Urgency . As an urgency measure, AB 243 would take effect immediately upon signature of the Governor. The bill states that an urgency measure is necessary because of the need to address the damage done by illegal marijuana cultivation at the earliest time possible. 9. Tax increase . Because the measure would result in an increase in tax on any taxpayer according to Section 3 of Article XIIIA of the California Constitution, Legislative Counsel has keyed the measure a 2/3 vote. 10. Mandate . The California Constitution generally requires the state to reimburse local agencies for their costs when the state imposes new programs or additional duties on them. According to the Legislative Counsel's Office, AB 243 creates a new state-mandated local program because it increases the duties of local officials. AB 243 says that if the Commission on State Mandates determines that it creates a state-mandated local program, the state must reimburse local agencies by following the existing statutory process for mandate claims. Assembly Actions Assembly Agriculture Committee: 6-2 Assembly Environmental Safety and Toxic Materials Committee:6-0 Assembly Appropriations Committee: 13-1 Assembly Floor: 60-15 Support and Opposition (7/2/15) AB 243 (Wood) 7/2/15 Page 11 of ? Support : California League of Conservation Voters; California Trout; County of Sonoma Board of Supervisors; County of Trinity Supervisor John Fenley, District 5; Emerald Growers Association; Sierra Club California; Small Farmers Association; Sonoma County Water Agency; Trust for Public Land. Opposition : Urban Counties Caucus. -- END --