BILL ANALYSIS Ó AB 2300 Page 1 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 AB 2300 Page 2 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. AB 2300 Page 3 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).) AB 2300 Page 4 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 AB 2300 Page 5 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 AB 2300 Page 6 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 AB 2300 Page 7 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 AB 2300 Page 8 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 AB 2300 Page 9 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 AB 2300 Page 10 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. AB 2300 Page 11 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. AB 2300 Page 12 ("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. AB 2300 Page 13 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 AB 2300 Page 14 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 AB 2300 Page 15 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 AB 2300 Page 16 Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334