BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 643 |Hearing | 4/29/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |McGuire |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |4/6/15 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Grinnell & Weinberger | |: | | ----------------------------------------------------------------- MEDICAL MARIJUANA Enacts a new regulatory framework for medical marijuana, authorizes local agencies to tax marijuana products, and prohibits marijuana cultivation in areas zoned residential. Background and Existing Law I. Local Taxes. Section Five of Article XI of the California Constitution allows charter cities to levy taxes which haven't been preempted by state or federal governments. The Government Code also allows general law cities, but not counties, to levy any tax that a charter city can unless state law limits or prohibits such a tax. Article XIIIA of the California Constitution requires 2/3 voter approval when a local agency wants to impose or increase a special tax, or majority vote for general taxes. In 1933, California enacted its sales tax, followed by the use tax two years later. Charter cities began applying their own sales taxes soon after, commencing with the City of San Bernardino in 1945. The Legislature also first authorized general law cities to levy their own sales and use taxes in 1949. While BOE administered the state tax, each city imposed, collected, and audited its own sales and use tax, which could be set at any rate the city chose, and could apply to different products than the state or other city sales taxes. SB 643 (McGuire) 4/6/15 Page 2 of ? In 1955, the Legislature enacted the Bradley Burns Local Sales and Use Tax Law to provide uniformity for local sales and use taxes. The uniform act allowed local agencies to levy its own tax of one percent, and centralized administration, collection, and audit with the Board of Equalization (BOE), replacing the previous system where each city implemented its own tax on whatever products it chose. The Act required local agencies to be perfectly uniform with each other and the state, charge the same rate, and adopt the state's base for the sales tax, which is "tangible personal property." This tax rate currently is fixed at 1% of the sales price of tangible personal property sold at retail in the local jurisdiction, or purchased outside the jurisdiction for use within the jurisdiction. Of this 1%, cities and counties use 0.75% to support general operations, and the remaining 0.25% is designated by statute for county transportation purposes. In California, all cities and counties impose Bradley-Burns local taxes at the uniform rate of 1%. Subsequently, the Legislature allowed cities, counties, and special districts to impose their own Transactions and Use tax within its jurisdiction subject to voter approval, known as "local add-ons" or "district taxes," so long as they relied on the same base and procedures as the sales and use tax. Beginning April 1, 2015, 202 local jurisdictions (city, county, and special districts) will impose a district tax for general or specific purposes. Of the 202 jurisdictions, 48 are county-imposed taxes 154 are levied by cities, and of the 48 county-imposed taxes, 29 are imposed for transportation purposes. Cities and Counties may increase the sales and use tax rate, but state law caps the total rate for any county at 2%, with some exceptions. Cities and counties must contract with BOE to collect and remit both taxes, and BOE retains its administration costs before sending tax revenue to the appropriate local agency. II. Licensing and Regulation of Medical Marijuana. Current law directs the Department of Consumer Affairs to regulate many businesses and professions to ensure public health, safety, and welfare, including the Medical Board, which licenses and regulates physicians and surgeons. In 1996, voters enacted the Compassionate Use Act, which prohibits prosecution for the possession and cultivation of SB 643 (McGuire) 4/6/15 Page 3 of ? marijuana of a patient or their caregiver upon written or oral recommendation of a physician. The Act provided that it shouldn't be construed to supersede legislation prohibiting conduct that endangers others, or to condone diversion of marijuana for non-medical purposes. However, no comprehensive statewide regulatory system currently applies to medical marijuana. III. Zoning. The police power is the inherent authority of governments to regulate private behavior to protect the public safety, health, and welfare. The California Constitution allows counties and cities to adopt and enforce local ordinances, provided that they don't conflict with general state laws. When counties and cities adopt local zoning ordinances, they are using their police powers. The Planning and Zoning Law spells out the procedures that county supervisors and city councils must follow when they adopt zoning ordinances. Proposed Law Senate Bill 643 enacts the Medical Marijuana Public Safety and Environmental Protection Act, which creates a regulatory structure for medical marijuana in California, allows local agencies to levy taxes on licensees under the Act, and preempts local zoning ordinances. I. Local Taxes. SB 643 allows a board of supervisors or a city council to enact an ordinance imposing a tax on the privilege of cultivating, dispensing, producing, processing, preparing, storing, providing, donating, selling or distributing marijuana, as defined by the bill. The board of supervisors or city council: Must specify the activities subject to the tax, the applicable rate or rates, the method of apportionment, and the manner of collection of the tax in the ordinance. May impose a general or special tax, so long as voters approve the measure under the appropriate Constitutional vote threshold. May impose a transactions and use tax administered by BOE only on marijuana or marijuana products, as defined, SB 643 (McGuire) 4/6/15 Page 4 of ? and any rate imposed isn't subject to the 2% cap on local transactions and use taxes. Provide for the collection of the tax in the same manner, and subject to the same penalties as other local taxes. A county board of supervisors must specify whether the tax applies throughout the entire county or within the unincorporated area of the county. The tax can be imposed on activities undertaken individually, collectively, or cooperatively, and regardless of whether the activity is for compensation or gratuitously. The tax need not be apportioned based on the benefit to any person or property, or be applied uniformly to all taxpayers or real property. Additionally, SB 643 provides that its tax doesn't limit or prohibit any other lawfully imposed fee. II. Medical Marijuana Regulation. SB 643 creates the Bureau of Medical Marijuana Regulation within DCA, empowering it to license and regulate many aspects of medical marijuana cultivation, manufacturing, transportation, storage, distribution, and sale, and charge fees to pay for its licensing and enforcement duties. The measure provides direction to DCA and the Medical Board regarding regulating and sanctioning physicians who violate the bill's terms, including creating misdemeanor crimes for specified acts. Additionally, the measure: Regulates advertising physician recommendations. Directs local agencies to have primary responsibility for enforcement of the act's requirements. Authorizes regulations to establish worker safety standards. Ensures commercial marijuana activity licensed by the Act doesn't threaten the environment and watersheds. Requires medical marijuana to meet certified organic standards by January 1, 2022. SB 643 (McGuire) 4/6/15 Page 5 of ? Provides that it does not supersede provisions of Measure D, as approved by the voters of the City of Los Angeles, or other similar measures. Additionally, the measure provides that licensees must abide with any restrictions imposed by the local agency in which the facility operates, and must not operate in any jurisdiction that prohibits the establishment of that kind of business. For a more thorough analysis of the measure's regulatory program, please refer to the Committee on Business and Professions analysis. III. Local Zoning. SB 643 prohibits a licensed cultivation site from being located in an area zoned residential. IV. State Tax/BOE Report. The measure allows the Bureau to assist state taxation authorities in the development of uniform policies for the state taxation of licensees. Additionally, the measure directs BOE to report to the Legislature to compile the actual tax collected on the sale of medical marijuana using the most current data available for years between 2016 and 2021. The measure makes legislative findings supporting its purposes, defines many of its term, and includes a severability clause. The measure also makes specific findings regarding restricting the right of public access to information due to federal medical information laws. State Revenue Impact No estimate. Comments 1. Purpose of the bill . According to the author, "SB 643 seeks to resolve many of the issues created by the enactment of the Compassionate Use Act and subsequent legislation. SB 643 creates a statewide comprehensive program overseeing the medical marijuana industry, from planting to consumption, and all the steps in between. California voters made it clear that they wanted medical marijuana to be legalized, but issues and concerns for growers, doctors, dispensaries, law enforcement, SB 643 (McGuire) 4/6/15 Page 6 of ? district attorneys, cities, counties and others have only become more complicated. The Author, who represents the primary growing region for medical marijuana in the western United States, specifically remote expanses of Mendocino, Humboldt and Trinity counties, which are responsible for up to 70% of the marijuana grown in the west, notes that much of this area of the state has come to rely on the economic benefits of marijuana cultivation, but also suffers from the negative environmental, public safety and public health effects that can arise from rogue cultivators and lack of regulation. The bill focuses on a number of key aspects of medical marijuana cultivation and proposes regulatory changes for those items, including banning commercial cultivation sites in areas zoned residential. According to the Author, this has been a big issue for neighborhoods and residences around the state. Commercial and industrial uses do not belong in residential areas, and medical marijuana grows create special problems that neighbors shouldn't have to deal with. The measure also allows local governments to impose a tax or fee on cultivation, above the ultimate sales tax, to help defray the expense of regulating the cultivation and processing of the commodity in their jurisdiction. The Author states that this is designed to make sure local authorities can afford to pay for the implementation of the regulations allowed under this legislation or any other." 2. Pay to play . SB 643 allows local agencies to impose transactions and use taxes specifically on marijuana products using higher rates than the current uniform rate on sales of all other tangible personal property. However, a local agency doing so may not receive any revenue because state law requires local agencies to contract with BOE to collect and remit the tax, and deduct its costs to do so from any revenue it remits to the local agency. BOE's costs to administer the Bradley-Burns and Transactions and Use taxes can be spread over the hundreds of local agencies administering them, but a new tax only on one product requires BOE to create a new infrastructure to educate retailers, create returns, and procure information technology necessary to collect and remit revenue. The Committee may wish to consider deleting the measure's transactions and use tax authority and make conforming changes, thereby ensuring that local agencies can tailor local taxes to their needs without incurring prohibitive costs. 3. Inputs and outputs . The bill requires BOE to report to the SB 643 (McGuire) 4/6/15 Page 7 of ? Legislature to compile the actual tax collected on the sale of medical marijuana using the most current data available for years between 2016 and 2021. However, retailers report one lump sum to BOE totaling all its sales of property, which isn't divided into individual products. Instead of directing BOE to report information that it doesn't receive, the measure should instead request BOE to estimate tax revenues. 4. Local control and state preemption . The California Constitution and state statutes delegate police power control over land use to locally elected officials. The Legislature has taken back these controls only in unusual instances involving important statewide objectives. SB 643 imposes a statewide ban on locating licensed cultivations sites within areas that are zoned for residential use. It is not clear why this state intrusion into local control over land use is warranted. While nothing prevents local officials from adopting zoning ordinances to prohibit cultivation sites in residential areas, why shouldn't they have the discretion to decide, based on local conditions and priorities, that some cultivation sites are compatible with residential uses? SB 643 (McGuire) 4/6/15 Page 8 of ? Additionally, charter cities have the constitutional authority to regulate their own municipal affairs, free of legislative interference. Their local regulations must give way only when statutes address issues of statewide concern. Because SB 643 does not assert that a cultivation site's location is an issue of statewide concern, the bill may not apply to California's 121 charter cities. To avoid imposing on local officials' land use discretion in some, but not all, local jurisdictions, the Committee may wish to consider amending SB 643 to delete the prohibition on locating cultivation sites in residential areas. 5. Incoming ! The Senate Committee on Business and Professions approved SB 643 by a 7-0 vote on April 20th. This Committee is hearing the measure because of its local tax and zoning changes. Support and Opposition (4/23/15) Support : Unknown. Opposition : Unknown. -- END --