BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2169


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          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