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
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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).)
AB 2300
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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