BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 2650 HEARING: 6/30/10
AUTHOR: Buchanan FISCAL: Yes
VERSION: 6/10/10 CONSULTANT:
Weinberger
MEDICAL MARIJUANA LOCATIONS
Background and Existing Law
Every county and city must adopt a general plan with seven
mandatory elements: land use, circulation, housing,
conservation, open space, noise, and safety. Cities and
counties' major land use decisions --- subdivisions,
zoning, public works projects, use permits --- must be
consistent with their general plans.
The police power is the authority of governments to
regulate private behavior in the public interest,
consistent with constitutional rights and procedures. The
California Constitution allows cities and counties to "make
and enforce within [their] limits all local police,
sanitary, and other ordinances and regulations not in
conflict with general laws." Zoning and use permits are
examples of how lo-cal officials use their police powers to
regulate land uses.
State law sometimes limits local discretion over land uses.
The Legislature has limited (or even preempted) local land
use regulations for specific land uses:
Manufactured housing in residential zones (AB 3735,
Bornstein, 1994).
Second units in residential zones (AB 1866, Wright,
2002).
Amateur radio station antenna structures (AB 1228,
Dutton, 2003).
Solar energy systems (AB 2473, Wolk, 2004).
Wireless telecommunications collocation facilities
(SB 1627, Kehoe, 2006).
Small wind energy systems (AB 45, Blakeslee, 2009).
The state has also taken land use permit powers away from
local officials in four regions to protect natural
resources with statewide importance: the Delta Protection
Commission, the San Francisco Bay Conservation Development
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Commission, the Tahoe Regional Planning Agency, and the
California Coastal Commission.
State law also regulates certain land uses' proximity to
specific sites. For example the Legislature has banned
tobacco ads on billboards within 1,000 feet of schools (AB
752, Migden, 1997) and development on active earthquake
faults (SB 5, Alquist, 1975).
In 1996, the voters approved Proposition 215, the
"Compassionate Use Act," which allows individuals to grow
or possess marijuana for medical use when recommended by a
physician to treat specified illnesses. Subsequent
legislation clarified and implemented Proposition 215 by
creating the California Medical Marijuana Program (SB 420,
Vasconcellos, 2003). State law requires county departments
of health to issue and regulate medical marijuana
identification cards.
Hundreds of retail enterprises in communities throughout
California cultivate and sell medical marijuana to patients
with identification cards. Local ordinances regulate these
medical marijuana establishments, called buyers' clubs,
collectives, cooperatives, or dispensaries. Some local
ordinances ban such establishments, create zoning
restrictions on their locations, or tax their operations.
Some public officials are concerned that medical marijuana
establishments may encroach on areas where children
congregate. They want the Legislature to prohibit medical
marijuana establishments from locating near schools.
Proposed Law
Assembly Bill 2650 prohibits any medical marijuana
cooperative, collective, dispensary, operator,
establishment, or provider who possesses, cultivates, or
distributes medical marijuana from locating within a
600-foot radius of a school. The bill applies only to a
medical marijuana cooperative, collective, dispensary,
operator, establishment, or provider that is authorized by
law to possess, cultivate, or distribute medical marijuana
and that has a storefront or mobile retail outlet which
AB 2650 -- 6/10/10 -- Page 3
ordinarily requires a local business license.
The bill does not apply to a medical marijuana cooperative,
collective, dispensary, operator, establishment, or
provider that is also a licensed residential medical or
elder care facility.
AB 2650 states that it does not prohibit municipal
jurisdictions from adopting ordinances or policies that
further restrict the location or establishment of a medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider. The bill does not preempt
local ordinances, adopted before January 1, 2011, that
regulate the location or establishment of a medical
marijuana cooperative, collective, dispensary, operator,
establishment, or provider.
The bill specifies that the 600-foot radius is the
horizontal distance measured in a straight line from the
property line of the school to the closest property line of
the lot on which the medical marijuana cooperative,
collective, dispensary, operator,
establishment, or provider is to be located without regard
to intervening structures.
AB 2650 defines "school" as any public or private school
providing instruction in kindergarten or grades 1 to 12,
inclusive.
Comments
1. Protecting students . As medical marijuana dispensaries
proliferate, state law provides no guidance on the most
appropriate locations for these establishments. Some
communities worry about marijuana dispensaries opening near
schools, parks, libraries, and child-care facilities.
State law sets a precedent for creating a buffer-zone
between school children and medical marijuana by
prohibiting anyone from smoking medical marijuana, outside
of a residence, within 1,000 feet of a school, recreation
center, or youth center. AB 2650 is a similar measure that
ensures that medical marijuana dispensaries are located a
reasonable distance away from schools.
2. Local control . Local voters elect county supervisors
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and city council members to make public policy in response
to local needs. Local land use decisions that strike a
delicate balance between protecting school children and
ensuring that patients and caregivers can obtain medical
marijuana are best made by city and county officials. By
prohibiting medical marijuana establishments from locating
near schools, AB 2650 may reduce or eliminate patients'
ability to obtain medical marijuana in some communities
that strongly support providing safe, legal access. The
Committee may wish to consider whether AB 2650 substitutes
an arbitrary, one-size-fits-all standard for local
officials' informed judgments about their communities.
3. Not charter cities . The California Constitution lets
charter cities control their municipal affairs. The 118
charter cities must follow statewide laws only for is-sues
of statewide concern when the Legislature has fully
occupied the field. The courts -- not the Legislature --
interpret the Constitution and decide what's a municipal
affair and what's an issue of statewide concern. Because
AB 2650 does not declare that regulating medical marijuana
establishments' proximity to schools is an issue of
statewide concern, the bill does not apply to charter
cities. If the Committee wants the bill to control charter
cities, then it should insert a specific declaration that
the Legislature considers regulating medical marijuana
establishments' proximity to schools to be an issue of
statewide concern and insert a persuasive recital of
legislative findings to bolster that claim. Even then, the
courts must agree.
4. A flexible standard . AB 2650 doesn't preempt local
ordinances adopted before January 1, 2011 regulating the
location or establishment of medical marijuana enterprises
near schools. In effect, the bill sets a January 1, 2011
deadline for adopting any local ordinance that is less
restrictive than AB 2650. The Committee may wish to
consider whether, if AB 2650 is chaptered, this deadline
will encourage local communities that want to avoid
preemption by state law to quickly adopt ordinances that
are less restrictive than AB 2650 before the bill takes
effect. Rather than preempting local ordinances that are
less restrictive and adopted after an arbitrary date, the
Committee may wish to consider amending AB 2650 to delete
the January 1, 2011 deadline for passing less restrictive
local ordinances. Without this deadline, AB 2650
AB 2650 -- 6/10/10 -- Page 5
establishes a statewide default standard requiring
marijuana establishments to locate at least 600 feet from
schools in communities that do not adopt their own
ordinances specifying either a longer or shorter distance
from schools, based on local conditions.
5. Home schools, too ? Read broadly, the term "private
school" in AB 2650's definition of schools could include
home schools. By contrast, another definition of schools
in the Health and Safety Code specifically excludes "any
private school in which education is primarily conducted in
private homes." A 2008 Superior Court decision in Jonathan
L. v. The Superior Court of Los Angeles County found that
"California statutes permit home schooling as a species of
private school education." The Committee may wish to
consider clarifying whether AB 2650 prohibits a medical
marijuana establishment from locating within 600 feet of
any private residence in which a student receives a K-12
education.
6. Undefined . AB 2650 says it does not prohibit
"municipal jurisdictions" from adopting more restrictive
ordinances or policies. The bill does not define the term
"municipal jurisdictions," which appears nowhere else in
the Health and Safety Code. The Committee may wish to
consider amending AB 2650 to replace the term "municipal
jurisdictions" with "cities and counties."
7. Pending litigation . The Los Angeles Superior Court is
considering various challenges to a recent Los Angeles city
ordinance that prohibits marijuana dispensaries within
1,000 feet of "sensitive use areas," including schools.
Petitioners argue that the Los Angeles ordinance
effectively eliminates access to marijuana in a manner
inconsistent with Proposition 215. The Committee may wish
to consider whether the Legislature should impose a similar
restriction statewide before the court makes a final
decision on this suit.
8. Mandate . By creating a new crime, AB 2650 also creates
a new state-mandated program. But the bill disclaims the
state's responsibility for reimbursing local governments
for enforcing these new crimes. That's consistent with the
California Constitution, which says that the state does not
have to reimburse lo-cal governments for the costs of new
crimes (Article XIIIB, 6[a][2]).
AB 2650 -- 6/10/10 -- Page 6
9. Double-referral . Because some of AB 2650's provisions
fall beyond the Senate Local Government Committee's policy
jurisdiction, the Senate Rules Committee ordered a
double-referral. The Senate Public Safety Committee will
consider AB 2650 at its June 29 hearing. If the Public
Safety Committee passes the bill, the Senate Local
Government Committee will hear AB 2650 at its June 30
hearing.
Assembly Actions
Assembly Public Safety Committee: 4-2
Assembly Appropriations Committee:15-2
Assembly Floor: 54-15
Support and Opposition (6/24/10)
Support : Association of California School Administrators,
California Narcotic Officers' Association, California
Police Chiefs Association, California State PTA, California
State Sheriff's Association, Peace Officers Research
Association of California, Sacramento Police Officers
Association, City of Elk Grove Chief of Police Robert M.
Lehner.
Opposition : Drug Policy Alliance, League of California
Cities, Marijuana Policy Project.