BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 243                           |Hearing    |7/8/15   |
          |          |                                 |Date:      |         |
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          |Author:   |Wood                             |Tax Levy:  |Yes      |
          |----------+---------------------------------+-----------+---------|
          |Version:  |7/3/15                           |Fiscal:    |Yes      |
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          |Consultant|Favorini-Csorba and Grinnell                          |
          |:         |                                                      |
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                             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  







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          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  








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          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  








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          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  








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          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  








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          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  








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          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.








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           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. 








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                 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








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          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)









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           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.



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