BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 243|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 243
Author: Wood (D), et al.
Amended: 9/11/15 in Senate
Vote: 27 - Urgency
SENATE GOVERNANCE & FIN. COMMITTEE: 5-0, 7/8/15
AYES: Hertzberg, Beall, Hernandez, Lara, Pavley
NO VOTE RECORDED: Nguyen, Moorlach
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-0, 7/15/15
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NO VOTE RECORDED: Gaines, Bates
SENATE APPROPRIATIONS COMMITTEE: 5-0, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NO VOTE RECORDED: Bates, Nielsen
ASSEMBLY FLOOR: 60-15, 6/3/15 - See last page for vote
SUBJECT: Medical Board of California: medical marijuana
SOURCE: Author
DIGEST: This bill establishes a regulatory program for the
cultivation of medical cannabis, as part of the Medical
Marijuana Regulation and Safety Act (MMRSA).
ANALYSIS:
Existing law:
1) Provides, under the Compassionate Use Act (CUA), that
qualified patients with specified illnesses or their
qualified caregivers cannot be prosecuted for possessing or
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Page 2
cultivating medical marijuana upon the written or oral
recommendation or approval of an attending physician
(Proposition 215, 1996).
2) Encourages federal and state governments to implement a plan
to provide for the safe and affordable distribution of
medical marijuana to those who need it, but also states that
it is not to be construed to supersede legislation
prohibiting conduct that endangers others or to condone the
diversion of medical marijuana for nonmedical purposes.
3) Directs the Department of Public Health to administer the
Medical Marijuana Program, where qualified patients apply for
identification cards when deemed appropriate by their
attending physician.
4) Requires county health departments to issue identification
cards to qualified patients and primary caregivers who
voluntarily register. Cards are valid for one year and may
be renewed annually.
5) Provides that qualified patients, persons with valid
identification cards, and the designated primary caregivers
of qualified patients and persons with identification cards,
who associate within the State of California in order to
collectively or cooperatively cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be
subject to state criminal sanctions under existing law (SB
420, Vasconcellos, Chapter 875, Statutes of 2003).
6) Prohibits any medical marijuana cooperative, collective,
dispensary, operator, establishment, or provider, as
specified, from being located within 600 feet of a school (AB
2650, Buchannan, Chapter 603, Statutes of 2010), and further
clarified the authority of local agencies to adopt and
enforce ordinances regulating the location, operation, or
establishment of a medical marijuana cooperative or
collective (AB 1300, Blumenfield, Chapter 196, Statutes of
2011).
7) Establishes the Joint Sunset Review Committee to
comprehensively analyze every eligible agency to determine
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whether the agency is cost-effective and necessary. Each
eligible agency with a statutory sunset date must submit
specified information to the Committee by December 1 of the
year prior to the year it's set to be repealed.
8) Imposes the Sales and Use Tax on the gross receipts from the
sale of, and on the sales price of, tangible personal
property, unless specifically exempted by statute.
a) Requires every person, retailer, and wholesaler
engaged in selling tangible personal property subject to
sales tax to apply to the Board of Equalization (BOE) for
a seller's permit.
b) Provides that a person that engages in business as a
seller in this state without a seller's permit, and each
officer of any corporation that so engages in business, is
guilty of a misdemeanor.
c) Makes persons who fail to pay Sales and Use Tax
obligations liable for accrued interest and penalties for
up to eight previous calendar years, but that the statute
of limitations never commences when a taxpayer fails to
file a return.
d) Applies various penalties for failing to obtain a
permit, pay or prepay a tax, or file a return.
e) Enacts an exemption for the sales and use tax for
prescription medication; however, to be exempt, the
medication must be:
f) prescribed by an authorized person and dispensed on a
prescription filled by a pharmacist,
i) Furnished by a licensed physician to his or her
own patient, or
ii) Furnished by a health facility for treatment
pursuant to a licensed physician's order, or sold to a
licensed physician.
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9)Allows local governments, pursuant to the California
Constitution, to make and enforce within its limits all local,
police, sanitary, and other regulations which are not in
conflict with general laws, known as the "police power."
This bill:
1) Makes findings related to the environmental impacts
associated with marijuana cultivation and the complex nature
of remediating marijuana cultivation sites, and that:
a) The federal government, including the United States
Environmental Protection Association, has not regulated
pesticide use in medical cannabis.
b) Lawful growers of medical cannabis urge the California
Department of Pesticide Regulation to provide guidance on
the use of pesticides.
2) Requires Department of Fish and Wildlife (DFW), in
consultation with State Water Resources Control Board
(SWRCB), to establish a multiagency task force to address
environmental impacts associated with marijuana cultivation.
3) Requires DFW to adopt regulations to enhance the fees on any
entity cultivating marijuana that impacts a bed, channel or
bank of any river, stream or lake, pursuant to Fish and Game
Code Section 1602, as specified.
4) Requires the multiagency task force, established pursuant to
Water Code Section12029, DFW and the existing SWRCB pilot
project, established to respond to damages caused by
marijuana cultivation, to continue enforcement efforts on
permanent basis statewide to ensure the reduction of adverse
impacts of marijuana cultivation on water quality and fish
and wildlife.
5) Requires each regional board, and permits SWRCB, to address
discharges of waste resulting from medical marijuana
cultivation and associated activities, including adopting a
general permit or establishing waste discharge requirements
or waivers as specified.
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6) Requires a state license to cultivate marijuana and requires
the California Department of Food and Agriculture (CDFA) to
establish a Medical Cannabis Cultivation Program in order to
license the cultivation of indoor and outdoor medical
marijuana.
7) Establishes classes of cultivation licenses based on the
size of the operation and the location.
8) Requires CDFA to establish a program to uniquely identify
medical marijuana plants, in consultation with SWRCB and DFW
that meets the following conditions:
a) The program must issue a unique identifier to each
plant that enables identification of permitted plants as
they are being cultivated.
b) The unique identifier must be attached to the base of
the marijuana plant and must only be issued to licensed
individuals.
c) CDFA must take steps to prevent fraudulent identifiers
and illegal diversion of unique identifiers to unlicensed
cultivators.
d) In implementing the program, CDFA must consider water
use and environmental impacts and ensure that individual
and cumulative effects of water diversion do not affect
the instream flows needed for fish spawning, natural
variability, or springs and other aquatic habitats.
9) Authorizes CDFA to develop and implement regulations to
carry out the licensing program authorized under this bill
and to regulate weighing and measuring devices used to meet
the MMRSA's requirements.
10)States that nothing in MMRSA supersedes the authority of the
SWRCB, regional water boards, or DFW.
11)Authorizes a city, county, or city and county, through its
current or future land use regulations or ordinance, to issue
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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.
12)Requires any local licensing requirements, including the
unique identifier program, to be equivalent to or more
stringent than CDFA's licensing requirements.
13)Prohibits a cultivator from applying for a state license if
they have not received the required local approval, or if the
local government has prohibited medical marijuana
cultivation.
14)Establishes CDFA as the sole regulator in any local
jurisdiction that has not implemented a local permitting
system by March 1, 2016.
15)States that the cultivation licensing program does not apply
to a qualified patient if he or she does not cultivate
greater than 100 square feet, nor a caregiver if the
caregiver does not cultivate greater than 500 square feet and
does not supply more than five qualified patients and meets
certain other requirements.
16)Requires each licensing authority, as defined in AB 266
(Bonta, 2015) - which enacts the Medical Marijuana Public
Safety and Environmental Protection Act - to levy fees
adequate to cover the reasonable regulatory costs of
administering the MMRSA. These fees must be:
a) Charged to fairly and proportionately to cover the
total cost of administering MMRSA;
b) Scaled based on the size of the business charged the
fee.
c) Deposited in the Medical Marijuana Regulation and
Safety Act Fund (MMRSAF), as created by this bill.
d) Used, upon appropriation of the Legislature, by the
licensing authorities to administer MMRSA.
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17)Establishes civil penalties for engaging in cannabis
activity without the required licenses and unique identifiers
of up to twice the cost of the appropriate licensing fee per
day of violation, to be paid as follows:
a) If the Attorney General brings action, to the General
Fund.
b) If a district attorney or county counsel brings
action, to the treasurer of the county in which the
judgment was entered.
c) If a city attorney or city prosecutor, to the
treasurer of the city or city and county in which the
judgment was entered, unless the case is adjudicated in a
superior court in the unincorporated area or in another
city, in which case the penalty shall be split evenly
between the treasurers in the two jurisdictions.
18)Authorizes the destruction of medical cannabis associated
with any civil penalties.
19)Provides for a General Fund or special fund loan, including
up to $10 million from the General Fund, to the Bureau of
Medical Marijuana Regulation (Bureau) as established by AB
266, to support the initial regulatory activities authorized
by MMRSA.
20)Requires repayment of any initial loans for regulatory
activities to be repaid by January 1, 2022, from the
regulatory fees charged by the licensing authorities and, if
necessary, from the Medical Cannabis Fines and Penalties
Account.
21)Requires the Bureau to establish a grant program to fund
activities by state and local law enforcement to remedy the
environmental effects of cannabis cultivation, payable from
fines and penalties charged pursuant to the bill after all
outstanding loans for the program are repaid.
22)Appropriates $10 million from the MMRSAF to the Department
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of Consumer Affairs to begin the activities of the Bureau.
23)Provides that provisions relating to Joint Sunset Review
Committee oversight do not apply to the Bureau.
24)Ends the legal effect of current law stating patients,
individuals with identification cards, or their caregivers,
who associate in California to collectively and cooperatively
cultivate marijuana for medical purposes shall not solely on
the basis of that fact be subject to state criminal sanctions
when the Bureau posts a notice on its Internet website that
licensing authorities have commenced issuing licenses.
25)Directs BOE to adopt a system to report the movement of
commercial cannabis and cannabis products throughout the
distribution chain, which must not duplicate CDFA's track and
trace program. The system must capture specified information
regarding:
a) Amount of tax due by the designated entity,
b) Name, address, and license number of the designated
entity remitting the tax,
c) Name, address, and license number of the succeeding
entity receiving the product,
d) The transaction date, and
e) Any other information deemed necessary by BOE for the
taxation and regulation of marijuana and marijuana
products.
26)States that no reimbursement for local costs is required
because this bill creates a new crime or infraction, among
other reasons, but requires reimbursement of local agencies
pursuant to existing law if the Commission on State Mandates
determines that the bill contains other mandated costs.
27)States that the measure only becomes active upon the
enactment and operation of Assembly Bill 266 and Senate Bill
643 of the 2015-16 Regular Session.
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Background
The Compassionate Use Act and SB 420. In 1996, voters approved
Proposition 215, known as the Compassionate use Act of 1996.
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
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
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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 DFW, "Impacts of Surface Water
Diversions for Marijuana Cultivation on Aquatic Habitat in Four
Northwestern California Watershed," which showed that during
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 DFW and SWRCB 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.
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Some organizations want to remedy the environmental effects of
past marijuana cultivation and regulate medical marijuana
cultivation more consistently throughout the state.
Comments
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. 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
Unknown
SUPPORT: (Verified9/11/15)
California League of Conservation Voters
California Native Plant Society
California State Parks Foundation
California Trout
California Urban Streams Partnership
Clean Water Action
Defenders of Wildlife
Nature Conservancy
Pacific Forest Trust
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Trout Unlimited
Trust for Public Land
OPPOSITION: (Verified9/11/15)
None received
ASSEMBLY FLOOR: 60-15, 6/3/15
AYES: Alejo, Bigelow, Bloom, Bonilla, Bonta, Brown, Burke,
Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman,
Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson,
Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández,
Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Lopez,
Low, Maienschein, McCarty, Medina, Mullin, Nazarian,
O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood,
Atkins
NOES: Achadjian, Travis Allen, Baker, Brough, Chávez, Beth
Gaines, Gatto, Grove, Harper, Kim, Linder, Mathis, Melendez,
Obernolte, Steinorth
NO VOTE RECORDED: Calderon, Campos, Chang, Dahle, Mayes
Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
9/11/15 18:58:39
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