BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2300 (Wood)
Version: April 28, 2016
Hearing Date: June 28, 2016
Fiscal: No
Urgency: No
TH
SUBJECT
Medical Marijuana
DESCRIPTION
Under existing law, participation in California's Medical
Marijuana Program does not authorize qualified patients to
engage in the smoking of medical marijuana in certain locations,
including in any place where smoking is prohibited by law.
This bill would specify that participation in California's
Medical Marijuana Program does not authorize qualified patients
to smoke medical marijuana in any location prohibited by a
landlord.
BACKGROUND
In 1996, California voters passed Proposition 215, the
Compassionate Use Act, "to ensure that seriously ill
Californians have the right to obtain and use marijuana for
medical purposes." The Compassionate Use Act authorized
individuals with chronic medical conditions and their caregivers
to cultivate, possess, and use marijuana upon the recommendation
of their physician. Several years after the passage of
Proposition 215, the Legislature passed SB 420 (Vasconcellos,
Ch. 875, Stats. 2003), the Medical Marijuana Program Act, which
established a program for the issuance of identification cards
to patients qualified to use medical marijuana, and made
numerous legal clarifications and statutory changes necessary to
implement and enforce a statewide system of providing medical
marijuana to chronically ill patients.
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SB 420 settled several issues concerning the exercise of a
qualified patient's right to use medical marijuana. Among other
things, the Medical Marijuana Program Act clarified that
participation in the program would not require any accommodation
for the use of medical marijuana on the property or premises of
any place of employment, or during the hours of employment, or
on the property or premises of any jail, correctional facility,
or other type of penal institution in which prisoners reside or
persons under arrest are detained. (See Health & Saf. Code Sec.
11362.785.) The Act also clarified that participation in the
program did not authorize (nor prohibit) a qualified patient to
engage in the smoking of medical marijuana: in any place where
smoking is prohibited by law; 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; on a school bus;
while in a motor vehicle that is being operated; or while
operating a boat. (See Health & Saf. Code Sec. 11362.79.)
This bill would expand the list of places neither authorized nor
prohibited for a qualified patient to engage in the smoking of
medical marijuana under the Medical Marijuana Program Act to
include any location where smoking is prohibited by a landlord.
CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act, declares it
to be against public policy to discriminate on the basis of
race, color, religion, sex, gender, gender identity, gender
expression, sexual orientation, marital status, national origin,
ancestry, familial status, source of income, disability, or
genetic information in housing accommodations. (Gov. Code Sec.
12920.)
Existing law declares that the opportunity to seek, obtain, and
hold housing without discrimination because of race, color,
religion, sex, gender, gender identity, gender expression,
sexual orientation, marital status, national origin, ancestry,
familial status, source of income, disability, genetic
information, or any other specified basis is a civil right.
(Gov. Code Sec. 12921.)
Existing law declares it unlawful for the owner of any housing
accommodation to discriminate against or harass any person
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because of the race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, or genetic information of that person. (Gov. Code
Sec. 12955.)
Existing law regulates the terms and conditions of residential
tenancies, and generally requires landlords to keep the rental
units in a condition fit for occupancy. (Civ. Code Sec. 1940 et
seq.)
Existing law creates an implied covenant of quiet enjoyment in
every lease, requiring that the tenant shall not be disturbed in
his or her possession by the landlord. (Civ. Code Sec. 1927;
Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)
Existing law authorizes the 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, as specified. (Civ. Code Sec. 1947.5.)
Existing law , Proposition 215 of 1996, the Compassionate Use
Act, provides that individuals have the right to obtain and use
marijuana for medical purposes where medical use has been deemed
appropriate and recommended by a physician because the person's
health would benefit from the use of marijuana in treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana
provides relief. (Health & Saf. Code Sec. 11362.5(b)(1).)
Existing law removes the criminal penalties for cultivation and
possession of marijuana by qualified patients, who are persons
with a physician's written or oral recommendation or approval to
use marijuana for medical use, or by their primary caregivers,
and protects physicians from punishment for recommending
marijuana to a patient for medical purposes. (Health & Saf.
Code Sec. 11362.5(b), (c) and (d).)
Existing law , the Medical Marijuana Program Act, provides that
participation in the Medical Marijuana Program shall not require
any accommodation of any medical use of marijuana on the
property or premises of any place of employment or during the
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hours of employment or on the property or premises of any jail,
correctional facility, or other type of penal institution in
which prisoners reside or persons under arrest are detained.
(Health & Saf. Code Sec. 11362.785(a).)
Existing law specifies that participation in the Medical
Marijuana Program shall not authorize a qualified patient to
engage in the smoking of medical marijuana under any of the
following circumstances:
in any place where smoking is prohibited by law;
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;
on a school bus;
while in a motor vehicle that is being operated; or
while operating a boat. (Health & Saf. Code Sec. 11362.79.)
This bill would provide that participation in the Medical
Marijuana Program shall not authorize a qualified patient to
engage in the smoking of medical marijuana in any location
prohibited by a landlord, as specified.
COMMENT
1.Stated need for the bill
The author writes:
In 1996, Proposition 215 (Compassionate Use Act) was passed by
California voters to allow seriously ill patients to use
marijuana for medical purposes. The Compassionate Use Act
also requires a recommendation from a physician before a
patient can begin using or obtaining the cannabis. Once a
patient has a physician recommendation, the right to use and
obtain medical marijuana is protected. A few years later, the
Legislature passed and the Governor signed SB 420
(Vasconcellos, 2003) to ensure there was a proper structure in
place to implement and enforce the Compassionate Use Act. SB
420 established a voluntary ID program for qualified patients
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that use medical marijuana while also making other statutory
changes to protect the public. The bill prohibited medical
marijuana patients from smoking cannabis near schools, while
operating a car or boat, and any other place where smoking is
prohibited by law.
In 2011, SB 332 (Padilla) codified in law that a landlord may
prohibit smoking tobacco within their rental dwellings. The
new law aligned with the already existing ban of smoking in
the workplace, while also recognizing that secondhand smoke
may cause death or serious illness. Secondhand smoke is
especially problematic in multi-unit apartments and condos
because the smoke can [easily travel] through windows, doors,
and shared ventilation systems. Neighbors living in
multi-family housing can be exposed to toxic, and unwanted,
secondhand tobacco smoke. A University of California San
Francisco (UCSF) study researched the effects of breathing
secondhand marijuana smoke. The UCSF study, released in 2014,
highlights that secondhand marijuana smoke can be as dangerous
as secondhand tobacco smoke.
Current law already outlaws qualified patients from smoking
medical marijuana at any place where smoking is prohibited,
but further clarity in statute is needed to protect tenants,
especially families living in multi-family housing, from
unsolicited secondhand marijuana smoke. AB 2300 allows a
landlord to prohibit the smoking of marijuana within their
rental properties. The bill does not prohibit other forms of
marijuana consumption, so qualified patients can still consume
medical cannabis through other means, such as, edibles, oils,
or other non-smoking alternatives.
2.Dangers associated with secondhand smoke
Since 1994, California has banned smoking in all workplaces,
including all restaurants, and in 1998 this smoking ban was
extended to bars. Current law prohibits public employees and
members of the public from smoking a cigarette or tobacco
product inside a public building or within 20 feet of any door,
window, or air intake of any government building within the
state, including buildings owned or occupied by any government
entity, including public universities, or public buildings
leased to private entities. Additionally, it is an infraction
for a person to smoke within 25 feet of a playground or for a
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person to smoke in the presence of a minor while in a moving
vehicle.
According to the California Environmental Protection Agency
(CalEPA), secondhand smoke, which is defined as a mixture of the
smoke from burning tobacco and the smoke exhaled from smokers,
can cause or exacerbate a wide variety of adverse health
effects, including asthma, cancer, and respiratory infections in
persons of all ages. Because of the toxicity of secondhand
smoke, the California Air Resources Board (CARB) identified it
as a toxic air contaminant (TAC), so that secondhand smoke is
now identified as an airborne toxic substance that may cause
and/or contribute to death or serious illness.
Studies have shown that secondhand smoke can be particularly
harmful to children. According to a 1997 study by the CalEPA,
the effect on children from secondhand smoke annually causes 120
child deaths from sudden infant death syndrome; 1,200 to 2,200
low-weight births; 900 to 1,800 hospitalizations and 16 to 25
deaths from increased bronchitis, pneumonia, and middle ear
infections; and 48,000 to 120,000 children experiencing more
acute asthma.
According to recent research by the University of California at
San Francisco (UCSF), "[b]reathing secondhand marijuana smoke
could damage your heart and blood vessels as much as secondhand
cigarette smoke." The study notes that "[r]educed blood vessel
function may raise the chances of developing atherosclerosis and
could lead to a heart attack," and states that
"[a]therosclerosis is the disease process that causes plaque
build-up in the arteries which narrows them and restricts blood
flow." According to a senior author of the study, "[m]ost
people know secondhand cigarette smoke is bad for you, but many
don't realize that secondhand marijuana smoke may also be
harmful." (Stanton Glantz, Secondhand Marijuana Smoke May
Damage Blood Vessels As Much As Tobacco Smoke, UCSF Center for
Tobacco Control Research and Education (November 16, 2014)
[as of June 5, 2016].)
3.Landlord authority to prohibit smoking tobacco products
Under current law, landlords can prohibit the smoking of tobacco
products on rented property and in residential dwelling units as
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a condition of a tenancy agreement. For many years, bans on
smoking have been viewed as similar to other rules tenants must
follow as a condition of their tenancy, such as observing
specified quiet hours or not allowing pets to live in a unit. A
landlord's ability to prohibit or restrict smoking on a property
helps the landlord protect his or her interest in the property,
as well as maintain conditions that preserve the right of quiet
enjoyment guaranteed to all tenants under California law.
In 2011, the Legislature codified the ability of a residential
landlord to prohibit the smoking of tobacco products on a rented
property or in any building or portion of a building, including
in a residential dwelling unit. (See SB 332 [Padilla, Ch. 264,
Stats. 2011].) This bill would codify that the Medical
Marijuana Program Act does not authorize qualified patients to
engage in the smoking of medical marijuana in any location
prohibited by a landlord, and by cross reference to the
applicable section of the Civil Code involving the smoking of
tobacco products, would imply that landlords have the authority
to prohibit the smoking of medical marijuana in rented
accommodations or on rented property.
4.Impact to qualified patients
With the passage of Proposition 215 in 1996, the people of
California recognized the smoking of marijuana to be medically
beneficial in certain circumstances. Unlike the smoking of
tobacco products which has limited, if any, health benefits,
Proposition 215 declared that "Californians have the right to
obtain and use marijuana for medical purposes where that medical
use is deemed appropriate and has been recommended by a
physician who has determined that the person's health would
benefit from the use of marijuana," and identified the treatment
of "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, [and] migraine" as illnesses for which marijuana may
provide relief. (Health & Saf. Code Sec. 11362.5(b)(1).)
While the law recognizes that landlords can prohibit the smoking
of tobacco products on rental property, it is unclear whether
landlords have an unconditional power to prohibit the smoking of
medical marijuana on these properties, particularly since
Proposition 215 recognized a patient's right of access to
medical marijuana in certain circumstances. If, for example, a
tenant smokes medical marijuana on the advice of his or her
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doctor to treat a terminal cancer, could a landlord
unconditionally prohibit such activity without running afoul of
the tenant's right of access, particularly if the tenant was
unable to easily move to an alternate location where smoking was
permissible? If a tenant has a medical need to smoke marijuana
for the treatment of a particular disability, would an
unconditional ban on the smoking of medical marijuana conflict
with a tenant's right to be free from discrimination in housing
accommodation under the Fair Employment and Housing Act?
While this bill does not explicitly authorize landlords to
prohibit the smoking of medical marijuana in rented
accommodations or on rented property, it would declare that the
Medical Marijuana Program Act does not require a landlord to
permit the medical use of marijuana on the landlord's property
or premises. Such a declaration raises the policy question of
how a landlord should exercise whatever power he or she has to
restrict the smoking of medical marijuana, particularly since
other state laws may limit that power. From a policy
standpoint, implementing restrictions on the use of medical
marijuana in the rental housing context should balance the
rights of the landlord (and other tenants) to prohibit
activities that could damage real property and impact the health
of surrounding tenants, while ensuring that tenants who have a
recognized right to use medical marijuana are still able to
exercise that right.
Suggested Amendment :
restrict the ability of landlords to prohibit or
condition the smoking of medical marijuana where such
conditions or prohibitions effectively deny patient access
to medical marijuana.
Support : Apartment Association, California Southern Cities;
Association of California Healthcare Districts; California
Association of Realtors; County Health Executives Association of
California; East Bay Rental Housing Association; Apartment
Association of Orange County; North Valley Property Owners
Association
Opposition : Greenbridge Corporate Counsel; Legal Services for
Prisoners with Children
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HISTORY
Source : California Apartment Association
Related Pending Legislation : None Known
Prior Legislation :
SB 332 (Padilla, Ch. 264, Stats. 2011) codified the ability of a
residential landlord to prohibit smoking on the property or in
any building or portion of the building, including any
residential dwelling unit.
AB 2279 (Leno, 2008) would have provided that an employee who is
a qualified patient cannot be fired from a job because of his or
her status as a qualified patient or for testing positive for
marijuana, and would have provided that an employee who is a
qualified patient cannot be discriminated against or penalized
by an employer for marijuana status or positive testing during
the hiring process. This bill was vetoed by Governor
Schwarzenegger who asserted that the bill would interfere with
employment decisions relating to marijuana use.
SB 420 (Vasconcellos, Ch. 875, Stats. 2003) See Background.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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