BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2300


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          Date of Hearing:  April 26, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 2300  
          (Wood) - As Amended March 18, 2016


                              As Proposed to be Amended


          SUBJECT:  MEDICAL MARIJUANA: RENTAL PROPERTY: PROHIBITION


          KEY ISSUE:  SHOULD the state codify a landlord's right to  
          prohibit the smoking of medical marijuana on the premises of  
          rental property?

                                      SYNOPSIS


          California currently bans smoking of tobacco products in most  
          public places, and restricts where medical marijuana may be  
          used.  According to the author, both landlords and marijuana  
          user advocates agree that under existing law, rules restricting  
          cigarette smoking generally apply to the smoking of medical  
          marijuana, as well.  This bill, sponsored by the California  
          Apartment Association (CAA), seeks to make clear that existing  
          law giving landlords the authority to prohibit cigarette and  
          tobacco smoking also extends to the smoking of medical  
          marijuana.  As proposed to be amended, the bill clarifies that  
          the prohibition of smoking of medical marijuana in any location  
          where cigarette or tobacco smoking is prohibited by a landlord  
          is pursuant to and subject to the same restrictions set forth in  








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          Civil Code Section 1947.5 (as enacted by SB 322 (2011),  
          codifying landlord authority to prohibit tobacco smoking in  
          rental property.)  These restrictions are intended to ensure  
          greater due process to tenants who might be impacted by  
          enforcement of a new policy or changes in the terms of their  
          tenancy.


          Proposition 215, the Compassionate Use Act of 1996, states that  
          the Act is intended "to ensure that seriously ill Californians  
          have the right to obtain and use marijuana for medical  
          purposes", but does not specifically mention the right to smoke  
          marijuana.  According to the author, this bill does not infringe  
          upon a person's rights to use medical marijuana under  
          Proposition 215 because it prohibits only the smoking of  
          marijuana, but not the use of other forms of marijuana,  
          including edibles, oils or other non-smoking means of ingesting  
          medical cannabis.  The bill is supported by landlord groups, the  
          Realtors, and county health executives.  Marijuana use  
          advocates, including Americans for Safe Access and California  
          NORML, are neutral on the bill, as they agree with supporters  
          that this bill simply codifies existing law that already gives  
          landlords the authority to prohibit medical marijuana in rental  
          property.  The bill is opposed by other user advocates who,  
          among other things, want vaporizing to be exempted from the  
          definition of "smoking" since there is no combustion or burning  
          of cannabis involved in that method of using medicinal  
          marijuana.


          SUMMARY:  Codifies a landlord's right to prohibit smoking of  
          medical marijuana on the rental property.  Specifically, this  
          bill clarifies that existing law does not authorize a qualified  
          patient or person with an identification card to engage in the  
          smoking of medical marijuana in any location at which smoking is  
          prohibited by a landlord pursuant to, and subject to the same  
          restrictions set forth in, Section 1947.5 of the Civil Code.










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          EXISTING LAW:   


          1)Pursuant to the Medical Marijuana Program (MMP), requires the  
            State Department of Public Health to establish and maintain a  
            voluntary program for the issuance of identification cards to  
            qualified patients who satisfy specified requirements with  
            respect to the use of medical marijuana.  (Article 2.5 of  
            Chapter 6 of Division 10 of the Health & Safety Code,  
            commencing with Section 11362.7.)


          2)Clarifies that nothing in the MMP authorizes a qualified  
            patient or person with an identification card to engage in the  
            smoking of medical marijuana under any of the following  
            circumstances: (a) In any place where smoking is prohibited by  
            law; (b) In or within 1,000 feet of the grounds of a school,  
            recreation center, or youth center, unless the medical use  
            occurs within a residence; (c)  On a school bus; (d)  While in  
            a motor vehicle that is being operated; (e)  While operating a  
            boat.  (Health & Safety Code Section 11362.79.)


          3)Permits a landlord of a residential dwelling unit, or his or  
            her agent, to prohibit the smoking of a cigarette or other  
            tobacco product on the property or in any building or portion  
            of the building, including any dwelling unit, other interior  
            or exterior area, or the premises on which it is located.   
            (Civil Code 1947.5 (a).)


          4)Provides that a landlord who exercises the above authority to  
            prohibit smoking shall be subject to federal, state, and local  
            requirements governing changes to the terms of a lease or  
            rental agreement for tenants with leases or rental agreements  
            that are in existence at the time that the policy limiting or  
            prohibiting smoking is adopted.  (Civil Code 1947.5 (c).)









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          5)Provides that a limitation or prohibition of the use of any  
            tobacco product shall not affect any other term or condition  
            of the tenancy, nor shall these provisions be construed to  
            require statutory authority to establish or enforce any other  
            lawful term or condition of the tenancy.  (Civil Code 1947.5  
            (e).)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  California already bans smoking of tobacco products  
          in most public places, and restricts where medical marijuana may  
          be used.  According to the author, both landlords and marijuana  
          user advocates have interpreted existing law to mean that rules  
          restricting cigarette and tobacco smoking generally apply to the  
          smoking of medical marijuana, as well.  This bill, sponsored by  
          the California Apartment Association (CAA), seeks to make clear  
          that existing law gives landlords the authority to prohibit  
          cigarette and tobacco smoking and also provides authority to  
          prohibit smoking medical marijuana.  CAA states:


               In 2011, the State Legislature overwhelmingly passed  
               legislation to allow rental property owners to prohibit  
               the smoking of tobacco within rental properties. AB  
               2300 would extend that same authority to medicinal  
               marijuana smoking. 


               The smoking of marijuana is a major source of conflict  
               between smoking and non-smoking tenants, with landlords  
               getting caught in the middle. In multi-family housing,  
               secondhand smoke can easily travel into neighboring  
               units through windows, doors, shared ventilation  
               systems and walls. Families living in rental housing  
               are exposed to potentially harmful secondhand smoke  








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               from their neighbor's smoking.  In addition, smoking in  
               rental units causes significant damage to the walls,  
               carpets, drapes and upholstery. Smoking substantially  
               increases the risk of fire and the potential for  
               property damage or personal injury. 


          Landlords appear to already have the authority to prohibit the  
          smoking of medical marijuana on their rental property, as this  
          bill makes clear.  According to CAA, landlords already have the  
          authority to prohibit the smoking of medical marijuana on their  
          rental property, although this authority is not yet specifically  
          articulated in statute.  First, they contend that a ban on  
          smoking medical marijuana is similar to other contractual  
          restrictions that landlords may place on tenants, including the  
          imposition of "quiet hours," guest restrictions, pet  
          restrictions and other limitations on the use of the dwelling  
          unit-including the prohibition of cigarette or tobacco smoking.   
          Prior to 2011, the law allowed landlords to prohibit cigarette  
          smoking in their residential properties so long as the rules  
          governing the prohibition were included as terms of the rental  
          agreement.  Then in 2011, the Legislature approved and the  
          Governor signed SB 332 (Padilla) Ch. 264, Stats. 2011, which  
          codified the authority of landlords to prohibit the smoking of  
          cigarettes and other tobacco products on their rental  
          properties.  Secondly, proponents note that possession or use of  
          marijuana, medical or otherwise, has always been and continues  
          to be illegal under federal law.  Virtually all leases in  
          California require tenants to comply with local, state and  
          federal laws, so proponents contend that virtually all leases in  
          California already prohibit marijuana use.  Finally, proponents  
          note that there appear to be no laws or regulations preventing  
          landlords from banning the smoking of medical marijuana on their  
          rental properties, and no tenant has a legal right to smoke  
          marijuana, medical or otherwise, in his or her apartment.  


          Marijuana user advocacy organizations, including Americans for  
          Safe Access and California NORML, apparently acknowledge this  








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          point, and have officially adopted a neutral position on this  
          bill.  ASA states:  "This bill upholds the status quo under  
          state law.  (We) acknowledge that property owners already have  
          the authority to prohibit the smoking of medical cannabis in  
          rental properties in the lease agreement."  California NORML  
          states: "We have generally advised consumers the non-smoking  
          rules apply to medical marijuana, as implied by Health & Safety  
          Code Section 11362.79 (a)."


          For all of these reasons, the author and CAA make a strong case  
          that landlords already possess the authority to prohibit the  
          smoking of medical marijuana in their rental property.   
          Accordingly, the bill seeks to make explicit what is implied by  
          HSC Section 11362.79, and amends that section to provide that a  
          qualified marijuana patient or a person with an identification  
          card under the Medical Marijuana Program "is not authorized to  
          smoke medical marijuana in any location at which smoking is  
          prohibited by a landlord pursuant to Section 1947.5 of the Civil  
          Code."


          While this bill seeks to make clear that landlords may prohibit  
          the smoking of medical marijuana, it does not purport to change  
          the terms of any person's tenancy.  Committee staff notes that  
          the purpose of this bill is similar to the purpose of SB 332  
          (2011), legislation which successfully sought to codify the  
          existing authority of landlords to prohibit cigarette and  
          tobacco use in their rental properties.  A review of the  
          legislative history of SB 322 reveals that "the intent of the  
          bill is to codify the landlord's ability to ban smoking so that,  
          should this bill be enacted, a landlord would have the same  
          authority as under existing law."  (Senate Judiciary Committee  
          analysis, April 26, 2011.)  The Senate Judiciary analysis  
          continues:


               Although landlords may currently prohibit smoking in  
               and around their rental units, the act of codifying  








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               that authority raises the policy question of how that  
               ability should be exercised by a landlord.  From a  
               policy standpoint, the prohibition should balance the  
               rights of the landlord (and community) to prohibit  
               smoking that could damage real property and impact the  
               health of surrounding tenants while ensuring that  
               tenants addicted to smoking who are not currently  
               subject to a smoking ban have a reasonable time to find  
               new housing, quit smoking, or find an alternate area in  
               which to smoke.   


               This bill seeks to address those issues by (1)  
               requiring smoking restrictions to be in rental  
               agreements, (2) providing that a smoking prohibition  
               constitutes a change in terms of tenancy requiring  
               adequate notice, and (3) clarifying that a landlord who  
               exercises his or her power to prohibit smoking is  
               subject to state and local notice requirements.  


          Committee staff notes that while SB 322 includes the above  
          described protections to ensure due process for tenants who  
          potentially face an adverse impact on their housing situation,  
          it is not clear that this bill has similar protections in place.  
           For example, while CAA states that this bill "cannot be used as  
          an excuse to simply evict long-standing tenants in  
          rent-controlled properties" (which was a concern of SB 322  
          before due process language was crafted in HSC 11362.7 (c) to  
          address it), it is not clear that the current language of the  
          bill carries out the author's intent.


          CAA contends there are key differences between SB 322's approach  
          and the approach of this bill, the key one being that smoking  
          tobacco is not illegal under federal law, while smoking  
          marijuana (medical or non-medical) has always been illegal under  
          federal law.  Consequently, CAA contends, codifying the  
          landlord's authority to prohibit cigarette smoking, an otherwise  








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          legal activity, is different because doing so in many cases  
          creates a change-in-tenancy that subsequently must be addressed  
          by existing law that requires adequate notice to be given to  
          affected tenants.  Here, they argue, codifying the landlord's  
          authority to prohibit smoking medical marijuana creates no  
          change-in-tenancy because no California tenant has a legal right  
          to smoke marijuana in the rental property.  That conduct has  
          always violated federal law and routine provisions of every  
          lease that require compliance with all federal laws.  If no  
          change-in-tenancy is created, then due process protections to  
          address potential concerns are not necessary.  CAA cautions that  
          the absence of an express prohibition against something should  
          not be considered consent by the landlord to allow the smoking  
          of marijuana on the premises.  For example, no rental agreement  
          calls out the fact that a tenant can't commit murder on the  
          premises, but murder is still illegal and would be grounds for  
          eviction under the lease, in addition to much greater liability.  
           In short, CAA argues that this bill does not "pull the rug out  
          from anyone" because the bill is not changing any existing rules  
          or terms of tenancy.


          Proposed amendment:  Setting aside the open question of whether  
          codifying a landlord's authority under this bill potentially  
          changes, or otherwise impacts, the terms of tenancies by  
          thousands of renters who currently use medical marijuana at  
          home, the author and sponsor have indicated that, out of an  
          abundance of caution, it may be clarified that the protections  
          of Section 11362.7, which go hand in hand with the statutory  
          authority to prohibit smoking cigarettes, shall also apply to  
          this bill.  Accordingly, the author proposes the following  
          amendment:


            On page 2, line 7, strike "pursuant to" and insert "pursuant  
            to, and subject to the same restrictions set forth in,"


          This bill does not appear to infringe upon a person's right to  








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          use medical marijuana under the Compassionate Use Act.  In  
          clarifying that a landlord may prohibit the smoking of medical  
          marijuana in rental property, it could be argued that this bill  
          may infringe on the rights of marijuana patients who rent their  
          homes to take their medicine under Proposition 215 (also known  
          as the Compassionate Use Act of 1996).  According to the author,  
          this bill does not infringe upon those rights because it does  
          not prohibit other forms of marijuana consumption, including  
          edibles, oils or other non-smoking means.  Only smoking, which  
          produces secondhand smoke that may affect the health of others,  
          of marijuana may be prohibited by the landlord under this bill.   
          Proposition 215 clearly states that it is intended "to ensure  
          that seriously ill Californians have the right to obtain and use  
          marijuana for medical purposes" -- but does not specifically  
          mention the right to smoke marijuana.  The author notes that  
          patients will still be able to exercise their right to obtain  
          and use medical marijuana under the provisions of this bill, but  
          they will need to obtain and use it in forms other than smoking.


          Proponents argue that the bill already accommodates medical  
          marijuana patients by allowing them to take marijuana in other  
          forms on the rental premises.  Committee staff research did not  
          reveal any case law holding that a landlord is entitled to  
          provide a reasonable accommodation to a person who for medical  
          reasons must smoke marijuana rather than take it in some other  
          form.  Under the federal Fair Housing Act (FHA), housing  
          providers are ordinarily obligated to provide reasonable  
          accommodations for tenants with disabilities to ensure that they  
          have the full use and enjoyment of their homes.  However, courts  
          have not yet found that a reasonable accommodation must be made  
          for a patient who smokes medical marijuana because the FHA  
          specifically excludes the use of a controlled substance from  
          protection under federal law, and marijuana remains a Schedule I  
          controlled substance under the federal Controlled Substance Act.


          The bill is opposed by Greenbridge Corporate Counsel, lawyer  
          advocates for medical cannabis patients.  Greenbridge contends  








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          that there is, in fact, a subcategory of marijuana patients who,  
          because of their particular health condition, need to inhale  
          cannabis rather than taking it in edible form.  This group of  
          patients, while still facing the same legal obstacles posed by  
          the FHA and Controlled Substances Act in claiming reasonable  
          accommodations, would nonetheless face the unenviable  
          predicament of having to choose between their medicine or their  
          home under this bill should it become law.  Greenbridge explains  
          the medical factors as follows:


               Over two million medical cannabis patients reside in  
               California, and most are tenants. Many of these two  
               million patients need to inhale cannabis, meaning  
               either smoke or vaporize, rather than ingest it via  
               eating it. Patients who use cannabis for acute or  
               severe symptoms, such as cachexia or nausea, need  
               fast-acting relief.  Inhalation takes less than a  
               minute to deliver this symptom relief, whereas  
               ingestion of edible medical cannabis products can take  
               over an hour. Patients suffering from gastrointestinal  
               distress, experiencing nausea or vomiting, may use  
               medical cannabis in order to be able to eat, and may  
               be unable to consume baked goods or liquid  
               preparations.  (See "Gastrointestinal Disorders and  
               Medical Marijuana" by Americans for Safe Access, at  
               safeaccessnow.org/  
               gastrointestinal_disorders_booklet.)


               Further, a major advantage of inhalation is dose  
               titration. People whose symptoms vary day-to-day may  
               need more or less cannabis to relieve their symptoms  
               than they did yesterday.  Inhalation's quick onset  
               makes it possible to titrate the dose (i.e. decide  
               whether more or less is needed), whereas ingestion  
               takes much longer before knowing whether increasing the  
               dose is necessary. 









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               According to a [recent article] in Forbes: "One of the  
               issues lies in how the two forms of the drug are  
               absorbed and metabolized, and how quickly the high  
               comes on.  'The major difference is in the absorption  
               of the [edible] product into the blood stream,' says  
               Kari Franson, PharmD, PhD, Clinical Pharmacologist and  
               Associate Dean for Professional Education, Department  
               of Clinical Pharmacy, at University of Colorado Skaggs  
               School of Pharmacy. 'Once it is in the blood, it  
               quickly goes to and has an effect on the brain. With  
               smoking, the peak blood levels happen within 3-10  
               minutes, and with eating, it's 1-3 hours.'  ("Is Eating  
               Marijuana Really Riskier Than Smoking It?" Forbes  
               Magazine, (June 4, 2014).)  


               Thus, ingesting medical cannabis, by virtue of its less  
               rapid onset, provides inferior symptom relief for  
               patients seeking to address acute symptoms as rapidly  
               as possible.


          Should landlords who prohibit medical marijuana also be required  
          to prohibit tobacco smoking?  User advocates, including  
          Americans for Safe Access and California NORML, are neutral on  
          the bill, but state that "they believe current scientific  
          evidence shows that secondhand marijuana smoke does not pose the  
          same kind of health dangers as tobacco."  Proponents of the  
          bill, by contrast, cite the need to reduce potentially harmful  
          secondhand smoke exposure from marijuana smoke to neighboring  
          tenants and families as one of the main justifications for the  
          bill.  The author cites a recent study by UCSF researchers  
          indicating that breathing secondhand marijuana smoke could  
          damage the heart and blood vessels as much as secondhand  
          cigarette smoke.  In this preliminary study, researchers found  
          that lab rats exposed to secondhand marijuana smoke had a 70  
          percent drop in blood vessel function, similar to the  
          cardiovascular effects produced by secondhand tobacco smoke.   








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          ("Secondhand marijuana smoke may damage blood vessels as much as  
          tobacco smoke", UCSF Center for Tobacco Control Research and  
          Education (November 16, 2014.).)  Furthermore, the California  
                                                                                         Association of Realtors, writing in support, states that "for  
          the purposes of rental housing, [AB 2300] seeks to treat all  
          smoking the same, regardless of the substance."


          The Committee agrees with this simple principle and believes  
          that if a landlord is to prohibit marijuana smoking in rental  
          property, then cigarette and tobacco smoking should also be  
          prohibited by the landlord in that property, without exception.   
          The evidence that secondhand tobacco smoke injures health is  
          more established and documented than that for secondhand  
          marijuana smoke, a relatively new subject of academic study.   
          Thus, it makes no sense to permit a landlord to prohibit  
          marijuana smoking while allowing tobacco smoking on the same  
          rental property given the stated goal of the bill to protect  
          public health.  Accordingly, the author may wish to consider a  
          simple amendment to require landlords to prohibit tobacco  
          smoking whenever medical marijuana smoking is prohibited under  
          this bill.  While there is more than one way to craft such an  
          amendment, one possible way would be to add subdivision (f) to  
          Civil Code Section 1947.5, stating:  


               Civil Code 1947.5. 


               . . .


               (f) A limitation or prohibition of smoking medical  
               marijuana may not be included in the lease or rental  
               agreement unless there is a similar limitation or  
               prohibition of the smoking of cigarettes or other tobacco  
               products in accordance with this section.










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          ARGUMENTS IN SUPPORT:  The bill is supported by the Association  
          of California Healthcare Districts (ACHD), who represents 78  
          healthcare districts throughout the state that offer a variety  
          of services to improve community health.  ACHD believes that  
          current research shows that secondhand marijuana smoke is  
          harmful and therefore appropriate to be banned from rental  
          housing.  ACHD states:


               Healthcare districts are vitally concerned with public  
               health issues.  The effect of exposure to secondhand  
               marijuana smoking is an increasing public health  
               concern.  A recent study from UC San Francisco found  
               that similar to tobacco smoke, marijuana smoke reduces  
               blood vessel function.  Impaired blood vessel function  
               can increase the risk of heart attack and  
               atherosclerosis-a major risk factor for heart disease.   
               The researchers stated, "There's no reason to think  
               marijuana smoke is better than tobacco smoke.  Avoid  
               them both."


               Many studies have documented the negative effects that  
               marijuana may have on health, including poor memory and  
               changes in brain function similar to those found in  
               patients with schizophrenia, while other research found  
               that marijuana may cause sleep problems.


          ARGUMENTS IN OPPOSITION:  The bill is opposed unless amended by  
          Greenbridge Corporate Counsel.  Greenbridge seeks amendments to  
          ensure that vaporizing medical marijuana does not fall under the  
          definition of "smoking" medical marijuana under this bill.  They  
          write:


               The Legislature's stated purpose in allowing landlords  
               to prohibit tobacco smoking was reducing the harms of  
               secondhand smoke.  Thus AB 2300 could be amended to  








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               exempt vaporizing from the activities that landlords  
               may prohibit.  This could be accomplished as simply as  
               defining the term "smoking" to include combustion, so  
               that vaporizing (releasing cannabis vapors by heating  
               cannabis above its activation temperature but below  
               its combustion point) would remain legal for medical  
               cannabis patients who are tenants.  If this bill were  
               amended to exempt vaporizing from this new prohibition  
               on patients who are renters, we would remove our  
               opposition.


          The bill is also opposed by Legal Services for Prisoners with  
          Children (LSPC), who believe the bill has negative criminal  
          justice implications.  LSPC writes: "People smoke in their own  
          homes in order to do so privately.  This bill would make it more  
          likely that people who have been prescribed marijuana (and  
          therefore need to use it) will have to smoke in public  
          spaces-increasing their risk of being arrested and prosecuted."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Apartment Association (sponsor)


          Apartment Association, California Southern Cities


          Apartment Association of Orange County


          Association of California Healthcare Districts








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          California Association of Realtors


          County Health Executives Association of California (CHEAC)


          East Bay Rental Housing Association


          North Valley Property Owners Association


          Western Manufactured Housing Communities Association (support if  
          amended)


          Neutral


          Americans for Safe Access


          National Organization for the Reform of Marijuana Laws (NORML),  
          CA Chapter




          Opposition


          Greenbridge Corporate Counsel (oppose unless amended)


          Legal Services for Prisoners with Children










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          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334