BILL ANALYSIS Ó
AB 2300
Page 1
ASSEMBLY THIRD READING
AB
2300 (Wood)
As Amended April 28, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
| | | | |
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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, Civil Code Section 1947.5.
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FISCAL EFFECT: None
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.
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) Chapter 264, 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
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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 (ASA) and California National Organization for the
Reform of Marijuana Laws (NORML), apparently acknowledge this
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 [HSC] Section 11362.79 (a)."
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,
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
that authority raises the policy question of how that
ability should be exercised by a landlord. From a
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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 Section 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
legal activity, is different because doing so in many cases
creates a change-in-tenancy that subsequently must be addressed
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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.
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, as recently amended, provides 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, and subject to the same
restrictions set forth in, Civil Code Section 1947.5.
This bill does not appear to infringe upon a person's right to
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,
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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
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
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predicament of having to choose between their medicine or their
home under this bill should it become law. Greenbridge explains
that many 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. (Citation omitted) Furthermore, 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.
Greenbridge therefore is in discussion with the author about
potential amendments that would clarify that vaporization of
cannabis would not be banned by the prohibition on smoking of
marijuana.
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 University of
California, San Francisco (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% drop in blood vessel
function, similar to the cardiovascular effects produced by
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secondhand tobacco smoke. ("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." It therefore stands to reason 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, given the stated goal of the bill to protect
public health.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0002837