BILL ANALYSIS Ó
AB 2169
Page 1
Date of Hearing: April 5, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2169 (Travis Allen) - As Introduced February 17, 2016
SUMMARY: Prohibits a person from maintaining or operating a
place of business in which drug paraphernalia is kept, displayed
or offered in any manner, sold, furnished, transferred or given
away and deletes provisions of law authorizing these activities
under certain conditions.
EXISTING LAW:
1)States that it is unlawful to possess an opium pipe or any
device, contrivance, instrument, or paraphernalia used for
unlawfully injecting or smoking specified controlled
substances, however, it is not unlawful until January 1, 2021,
for a person to possess solely for personal use hypodermic
needles or syringes if acquired from a physician, pharmacist,
hypodermic needle and syringe exchange program, or any other
source that is authorized by law to provide sterile syringes
or hypodermic needles without a prescription. (Health & Saf.
Code, § 11364, subds. (a) and (c).)
2)Provides that, except as authorized by law, no person shall
maintain or operate any place of business in which drug
paraphernalia is kept, displayed or offered in any manner,
sold, furnished, transferred or given away unless such drug
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paraphernalia is completely and wholly kept, displayed or
offered within a separate room or enclosure to which persons
under the age of 18 years not accompanied by a parent or legal
guardian are excluded. Each entrance to such a room or
enclosure shall be signposted in reasonably visible and
legible words to the effect that drug paraphernalia is kept,
displayed or offered in such room or enclosure and that
minors, unless accompanied by a parent or legal guardian, are
excluded. (Health & Saf. Code, § 11364.5, subd. (a).)
3)States that, except as authorized by law, no owner, manager,
proprietor or other person in charge of any room or enclosure,
within any place of business, in which drug paraphernalia is
kept, displayed or offered in any manner, sold, furnished,
transferred or given away shall permit or allow any person
under the age of 18 years to enter, be in, remain in or visit
such room or enclosure unless such minor person is accompanied
by one of his or her parents or by his or her legal guardian.
(Health & Saf. Code, § 11364.5, subd. (b).)
4)Prohibits, unless authorized by law, any person under the age
of 18 years from entering, being in, remaining in or visiting
any room or enclosure in any place of business in which drug
paraphernalia is kept, displayed or offered in any manner,
sold, furnished, transferred or given away unless accompanied
by one of his or her parents or by his or her legal guardian.
(Health & Saf. Code, § 11364.5, subd. (c).)
5)Defines "drug paraphernalia" to mean "all equipment, products,
and materials of any kind which are intended for use or
designed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling, or otherwise introducing into
the human body a controlled substance." "Drug paraphernalia"
includes, but is not limited to, all of the following:
a) Kits intended for use or designed for use in planting,
propagating, cultivating, growing or harvesting of any
species of plant which is a controlled substance or from
which a controlled substance can be derived;
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b) Kits intended for use or designed for use in
manufacturing, compounding, converting, producing,
processing, or preparing controlled substances;
c) Isomerization devices intended for use or designed for
use in increasing the potency of any species of plant which
is a controlled substance;
d) Testing equipment intended for use or designed for use
in identifying, or in analyzing the strength, effectiveness
or purity of controlled substances;
e) Scales and balances intended for use or designed for use
in weighing or measuring controlled substances;
f) Diluents and adulterants, such as quinine hydrochloride,
mannitol, mannite, dextrose, and lactose, intended for use
or designed for use in cutting controlled substances;
g) Separation gins and sifters intended for use or designed
for use in removing twigs and seeds from, or in otherwise
cleaning or refining, marijuana;
h) Blenders, bowls, containers, spoons, and mixing devices
intended for use or designed for use in compounding
controlled substances;
i) Capsules, balloons, envelopes, and other containers
intended for use or designed for use in packaging small
quantities of controlled substances;
j) Containers and other objects intended for use or
designed for use in storing or concealing controlled
substances;
aa) Hypodermic syringes, needles, and other objects intended
for use or designed for use in parenterally injecting
controlled substances into the human body; and,
bb) Objects intended for use or designed for use in
ingesting, inhaling, or otherwise introducing marijuana,
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cocaine, hashish, or hashish oil into the human body.
(Health & Saf. Code, § 11364.5, subd. (d).)
6)Allows a court, in determining whether an object is drug
paraphernalia, to consider, in addition to all other logically
relevant factors, the following:
a) Statements by an owner or by anyone in control of the
object concerning its use;
b) Prior convictions, if any, of an owner, or of anyone in
control of the object, under any state or federal law
relating to any controlled substance;
c) Direct or circumstantial evidence of the intent of an
owner, or of anyone in control of the object, to deliver it
to persons whom he or she knows, or should reasonably know,
intend to use the object to facilitate a violation of this
section. The innocence of an owner, or of anyone in control
of the object, as to a direct violation of this section
shall not prevent a finding that the object is intended for
use, or designed for use, as drug paraphernalia;
d) Instructions, oral or written, provided with the object
concerning its use;
e) Descriptive materials, accompanying the object which
explain or depict its use;
f) National and local advertising concerning its use;
g) The manner in which the object is displayed for sale;
h) Whether the owner, or anyone in control of the object,
is a legitimate supplier of like or related items to the
community, such as a licensed distributor or dealer of
tobacco products;
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i) The existence and scope of legitimate uses for the
object in the community; and,
j) Expert testimony concerning its use. (Health & Saf.
Code, § 11364.5, subd. (e).)
7)Contains an exemption for any pharmacist, physician, dentist,
podiatrist, veterinarian or manufacturer, wholesaler, or
retailer licensed by the California Board of Pharmacy who
legally furnishes, prescribes, sells, or transfers hypodermic
syringes, needles, and other objects designed for use or
marketed for use in parenterally injecting controlled
substances into the human body. (Health & Saf. Code, §
11364.5, subd. (f)(1)-(3).)
8)Provides that, except as authorized by law, any person who
delivers, furnishes, or transfers, possesses with intent to
deliver, furnish, or transfer, or manufactures with the intent
to deliver, furnish, or transfer, drug paraphernalia, knowing,
or under circumstances where one reasonably should know, that
it will be used to plant, propagate, cultivate, grow, harvest,
compound, convert, produce, process, prepare, test, analyze,
pack, repack, store, contain, conceal, inject, ingest, inhale,
or otherwise introduce into the human body a controlled
substance, except as provided, is guilty of a misdemeanor.
(Health & Saf. Code, § 11364.7, subd. (a).)
9)States that, except as authorized by law, any person who
manufactures with intent to deliver, furnish, or transfer drug
paraphernalia knowing, or under circumstances where one
reasonably should know, that it will be used to plant,
propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body cocaine, cocaine base,
heroin, phencyclidine, or methamphetamine is punishable as a
misdemeanor or a felony. (Health & Saf. Code, § 11364.7,
subd. (b).)
10)Exempts medical marijuana patients from the prohibition
against possession and cultivation of marijuana if used for
personal medical purposes. (Health & Saf. Code, § 11362.5,
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subd. (d).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Federal and
state laws never intended to allow illegal drug tools to be
sold. California can no longer turn a blind eye to this
illegal activity that allows our children to be taken
advantage of and encourages them to use illegal drugs."
2)Medical Marijuana Laws: In 1996, voters passed Proposition
215, the Compassionate Use Act, which authorizes a patient or
the patient's primary caregiver to possess marijuana or
cultivate marijuana for the patient's medical use upon the
written or oral recommendation of a physician. (Health and
Saf. Code, § 11362.5.)
The Compassionate Use Act of 1996 ensures that seriously ill
Californians have the right to obtain and use marijuana for
medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined
that the person's health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief. The Act also
ensures that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation
of a physician are not subject to criminal prosecution or
sanction. (Health and Saf. Code, § 11362.5.)
In 2003, the Legislature clarified the Compassionate Use Act
with SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
known as the Medical Marijuana Program Act (MMPA). The MMPA
offered a voluntary identification card which patients and
caregivers could obtain that would additionally protect them
from arrest. The MMPA also set limits on the amounts of
marijuana to be legally grown and possessed, however, the
California Supreme Court ruled in People v. Kelly (2010) 47
Cal.4th 1008, that the MMPA section limiting quantities of
marijuana is unconstitutional because it amends a voter
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initiative.
The Compassionate Use Act protects caregivers and patients who
possess or cultivate medical marijuana use, but, people who
engage in these activities remain liable for federal arrest
and prosecution, and those who operate dispensaries face
frequent federal enforcement actions. The U.S. Supreme Court
ruled in Gonzales v. Raich (2005) 545 U.S. 1, that the federal
government can enforce marijuana prohibition despite state
medical-marijuana laws. Thus, the CUA and the MMPA have no
effect on federal enforceability of the federal Controlled
Substances Act.
After several failed legislative attempts to regulate the
medical marijuana industry, in 2015, the Legislature enacted
the Medical Marijuana Regulation and Safety Act. (AB 243
(Wood), Chapter 688, Statutes of 2015, AB 266 (Bonta), Chapter
689, Statutes of 2015, and SB (McGuire), Chapter 719, Statutes
of 2015.) The Act, among other things, requires licenses for
cannabis dispensaries and creates a new state agency to
oversee the industry.
3)2016 Ballot Initiatives: This year, California voters will
likely have the opportunity to vote on at least one ballot
measure to legalize non-medical marijuana. Although multiple
competing measures have been filed, the Adult Use of Marijuana
Act is the most likely to qualify for the 2016 ballot. The
Adult Use of Marijuana Act, if approved, would tax and
regulate marijuana in a manner similar to alcohol while
allowing adults, age 21 and older, to possess and cultivate
marijuana as sanctioned by the measure without fear of
prosecution. (Pot Legalization Efforts Now Down to One Major
Initiative, L.A. Weekly (Jan. 5, 2016)
< http://www.laweekly.com/news/pot-legalization-efforts-now-down
-to-one-major-initiative-6447387 > [as of January 6, 2016].)
If recreational use of marijuana is approved by the voters this
year, possession, smoking, ingestion and cultivation will be
legal activities. Additionally, these activities are already
legal for patients who use marijuana for medicinal purposes.
Considering that current law already restricts businesses from
selling, displaying or transferring drug paraphernalia which
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includes items that assist in smoking or growing marijuana,
would further restricting the availability of drug
paraphernalia unnecessarily burden lawful activities?
4)Argument in Support: According to the California Police
Chiefs Association, "Drug usage is a problem that continues to
increase, mostly because of its availability to the general
population. California shops that sell drug paraphernalia
accommodate illicit drug users, making it easier for them to
abuse various illegal drugs. The National Institute on Drug
Abuse Cited in 2012, that in Los Angeles County alone,
marijuana accounted for the highest percentage (27 percent) of
drug treatment admissions. The usage of illegal drugs is not
only harmful to one's self, but also negatively impacts the
state of California.
"Existing law prohibits a person from maintaining or operating
any place of business in which drug paraphernalia is kept,
displayed, or offered in any manner, sold, furnished,
transferred, or given away. Too many localities and law
enforcement entities are struggling to keep up with the abuses
to this law, and this bill will help them immensely. AB 2169
will install a necessary standard to prohibit shops from
selling illegal glass pipes and drug paraphernalia."
5)Argument in Opposition: According to the American Civil
Liberties Union, "Many of the items on the list of 'drug
paraphernalia' have lawful uses, including for the consumption
of medical marijuana. Completely banning retail sales of these
items is excessive and unwarranted from a public health
perspective.
"The Compassionate Use Act, approved by the voters in Proposition
215, specifically states that a 'qualified patient or primary
caregiver may possess no more than eight ounces of dried
marijuana' and 'may also maintain no more than six mature or 12
immature marijuana plants.' Health & Safety Code § 11362.77. AB
2169 would ban retail sale of items legitimately used by
qualified patients and their caregivers to grow and consume
medical marijuana. It would also ban the sale of items that
eliminate the negative health impacts of smoking marijuana, such
as vaporizers. Making it more difficult for qualified patients
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to grow and consume medical marijuana is inconsistent with the
will of the voters.
"Moreover, the voters will likely decide soon whether California
should decriminalize possession and consumption of small amounts
of marijuana for recreational purposes. The Legislature should
not now be completely prohibiting the sale of the items related
to what may soon become a legitimate business in California.
"In addition, the proposed bill contradicts the advice of
experts on how to prevent the harms of substance use. It is
recognized that the availability of sterile syringes reduces
the spread of HIV and hepatitis C. Previous state legislation
has reduced or removed the legal barriers to accessing sterile
syringes, in the interest of preventing transmission of HIV or
viral hepatitis. In 2014 AB 1734 (Ting) passed and was signed
into law by Governor Brown, allowing non-prescription pharmacy
sales of syringes and personal possession of syringes in order
to most effectively eliminate HIV and hepatitis C transmission
among people who inject drugs. AB 2169 would move in the
opposite direction and is contrary to the best practices for
promoting public health."
6)Prior Legislation:
a) AB 261 (Travis Allen), of the 2015-16 Legislative
Session, is identical to this bill. AB 261 died in
Committee.
b) AB 1811 (Ammiano), of the 2009-10 Legislative Session,
would have revised the definition of "drug paraphernalia"
to include those same objects when designed or marketed for
use in the unlawful conducts of those acts, including the
unlawful ingesting, inhaling, or other introduction of
those controlled substances into the human body. AB 1811
failed passage on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION:
Support
Action Network Family Resource Center
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California Police Chiefs Association
California Narcotic Officers' Association
Central Valley Recovery Services, Inc.
Huntington Beach Police Chief
Palomar Health Communities Coalition Escondido
Partnership for a Positive Pomona
San Marcos Prevention Coalition
Santee Solutions Coalition
Take Back America Campaign
Wellness and Prevention Center
5 private individuals
Opposition
American Civil Liberties Union
Drug Policy Alliance
Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744