BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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6
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AB 2650 (Buchanan) 0
As Amended June 10, 2010
Hearing date: June 29, 2010
Health & Safety Code
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MEDICAL MARIJUANA
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation: SB 420 (Vasconcellos) - Ch. 875, Stats. 2003
SB 847 (Vasconcellos) - Ch. 750, Stats. 1999
Support: Association of California School Administrators;
California Police Chiefs' Association; California
Narcotics Officers Association; California State Parent
Teacher Association; California State Sheriffs'
Association; Sacramento Police Officers Association;
Elk Grove Chief of Police
Opposition:League of California Cities; Drug Policy Alliance;
Marijuana Policy Project
Assembly Floor Vote: Ayes 54 - Noes 15
KEY ISSUES
SHOULD A SPECIFIED MEDICAL MARIJUANA ENTITY THAT OPERATES
THROUGH A STOREFRONT OR MOBILE RETAIL OUTLET BE PROHIBITED FROM
LOCATING WITHIN A "600 FOOT RADIUS" OF A SCHOOL?
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SHOULD THIS BILL NOT PREEMPT ANY LOCAL ORDINANCE REGULATING THE
LOCATION OR ESTABLISHMENT OF A MEDICAL MARIJUANA ENTITY, IF THE
ORDINANCE WAS ADOPTED PRIOR TO THE EFFECTIVE DATE OF THIS BILL
(JANUARY 1, 2011)?
(CONTINUED)
AFTER THE EFFECTIVE DATE OF THIS BILL, SHOULD ANY LOCAL ENTITY ONLY
BE AUTHORIZED TO ADOPT AN ORDINANCE THAT IS MORE RESTRICTIVE THAN
THIS BILL?
PURPOSE
The purposes of this bill are to 1) prohibit operation or
establishment of a medical marijuana cooperative, collective,
dispensary or provider within 600 feet of a school; 2) to
provide that ordinances adopted prior to the effective date of
this bill (1/1/2011) regulating the location or establishment of
such a medical marijuana entity shall not be preempted by this
bill; and 3) to authorize a local entity to only adopt an
ordinance that restricts the location or establishment of a
medical marijuana entity "further" than those entities are
restricted by this bill.
Existing law - the Compassionate Use Act of 1996 (Health & Saf.
Code 11362.5), includes the following purposes:
To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where such 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 in the treatment of cancer, anorexia,
AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine,
or any other illness for which marijuana provides relief.
To ensure that patients and their primary caregivers who
obtain and use marijuana for medical purposes upon the
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recommendation of a physician are not subject to criminal
prosecution or sanction.
To encourage the federal and state governments to implement a
plan to provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana.
(Health and Saf. Code 11362.5, subd. (b)(1)(A)- (C).)
Existing law - the Compassionate Use Act - also provides:
The act shall not be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers
others, or to condone the diversion of marijuana for
non-medical purposes. (Health & Saf. Code 11362.5, subd.
(b)(2).)
No physician in California shall be punished, or denied any
right or privilege, for having recommended marijuana to a
patient for medical purposes. (Health & Saf. Code 11362.5,
subd. (c).)
Penal laws relating to the possession of marijuana and the
cultivation of marijuana shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates
marijuana for the personal medical purposes of the patient
upon the written or oral recommendation or approval of a
physician. (Health & Saf. Code 11362.5, subd. (d).)
Existing law provides that qualified patients, persons with
valid identification cards, and the designated primary
caregivers of qualified patients and persons with identification
cards, who associate within the State of California in order
collectively or cooperatively to cultivate marijuana for medical
purposes, shall not solely on the basis of that fact be subject
to state criminal sanctions under existing law. (Health & Saf.
Code 11362.775.)
This bill provides that its terms shall apply to persons
specified in Health and Safety Code Section 11362.765. Those
persons are qualified patients, persons with valid
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identification cards, and the designated primary caregivers of
qualified patients and persons with identification cards, who
associate within the State of California in order collectively
or cooperatively to cultivate marijuana for medical purposes.
This bill prohibits any medical marijuana cooperative,
collective, dispensary, operator, establishment, or provider who
possess, cultivates, or distributes medical marijuana, as
specified, from being located within 600 feet of a school.
This bill states that the 600-feet distance shall be the
horizontal distance measured in a straight line from the
property line of the school to the closest property line of that
lot on which the medical marijuana cooperative or dispensary is
located, without regard to intervening structures.
This bill provides that the 600-feet restriction shall not apply
to medical marijuana cooperatives or dispensaries, as specified
that are also licensed residential medical or elder care
facilities.
This bill provides that this restriction shall only apply to
medical marijuana cooperatives, collective, dispensary,
operator, establishment or providers that are authorized by law
to possess, cultivate or distribute medical marijuana.
This bill does not preempt local ordinances, adopted prior to
January 1, 2011 (the effective date of this bill), that regulate
the location or establishment of a medical marijuana
cooperative, collective, dispensary, operator, establishment, or
provider.
This bill states that after the effective date of this bill, a
local entity can only adopt a local ordinances that impose more
restrictive requirements on the location of a medical marijuana
cooperative, collective, dispensary, operator, establishment, or
provider that is authorized by law to possess, cultivate or
distribute medical marijuana than imposed under this bill.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
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population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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COMMENTS
1. Need for This Bill
According to the author:
Currently, there is no guidance from the state
regarding the location of medical marijuana
dispensaries. In La Jolla there is dispensary across
the street from a high school, one block from a middle
school and four blocks from an elementary school.
This measure simply prevents medical marijuana
dispensaries with a storefront from being located
directly across from a school. By requiring
dispensaries to be located at least 600 feet from a
school, this measure is consistent with the distance
most bars and liquor stores are banned. Additionally,
this bill does not preempt existing local ordinances
that regulate the location of marijuana dispensaries
as the most appropriate locations for these
dispensaries to open. This bill represents a balanced
approach between our responsibilities to our children
and schools and the need for patients to have access
to medical marijuana dispensaries.
2. Compassionate Use Act of 1996 (Proposition 215) - Medical
Marijuana
General Considerations
Proposition 215 -- the "Compassionate Use Act (CUA) -- was
enacted in November, 1996. The Act is set out in Health and
Safety Code Section 11362.5. The CUA established the right of
patients to obtain and use marijuana in California to treat
specified serious illnesses and any other illness for which
marijuana provides relief. Additionally, the CUA specifically
protects physicians who recommend the use of marijuana to
patients for medical purposes and exempts qualified patients and
their primary caregivers from California drug laws prohibiting
possession and cultivation of marijuana. (McCabe, It's High
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Time: California Attempts to Clear the Smoke Surrounding the
Compassionate Use Act, (2004) 35 McGeorge L. Rev. 545, 546.)
The law review article noted:
Although qualifying patients and their caregivers are
exempt from California state cultivation and
possession laws under the Act, there are no provisions
addressing other relevant issues, such as the
formation of cooperatives for the purpose of
cultivating and distributing marijuana, transportation
of marijuana by patients or caregivers, or provisions
establishing the quantity of marijuana a qualified
person may possess. Further, absence of uniform
guidelines adversely affected the ability of law
enforcement officers to enforce the Act, resulting in
inconsistent application. It has even been alleged
that Proposition 215 was purposely drafted to be
vague. (Ibid at p. 547.)
Federal Law
The United States Supreme Court in Gonzalez vs. Raich (2004) 125
S.Ct. 3195, held that California could not exempt marijuana for
medicinal use from the criminal possession statute in
contravention of federal law. The ruling was based on the
Commerce Clause of the United States Constitution. The court
found that use of "any commodity, be it wheat or marijuana, has
a substantial effect on the supply and demand in the national
market for that commodity" and, hence, falls within interstate
commerce. The Court ruled that the Federal Control Substances
Act preempts any state attempt to decriminalize marijuana (Raich
at 2208), meaning that federal agencies may enforce federal law
in California notwithstanding the Compassionate Use Act.
However, and perhaps most important, there is no requirement
that state law enforcement assist in enforcement.
A Patient's Right to Possess Marijuana, and the Right to Return
of Marijuana taken from the Patient by the Police, under
California Law
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In City of Garden Grove vs. Superior Court of Orange County
(hereinafter Garden Grove) (2007) 157 Cal.App.4th 355 the Court
of Appeal held that a defendant, whose charges of marijuana
transportation were dismissed, was entitled to the return of
seized marijuana. The appellate court held that the city had
standing under existing law to seek a writ of mandate because
the question of whether medical marijuana patients were entitled
to the return of lawfully seized marijuana was an issue of
considerable public interest. The court stated that the
patient's marijuana possession was legal under state law but it
was illegal under federal law. The court concluded the
defendant was entitled to a return of property that was legal
for him to own because state courts were not required to enforce
federal drug laws. Further, the federal drug laws did not
preempt state law under the supremacy clause of the United
States Constitution as to the return of medical marijuana to
qualified users. Due process required the return of seized
property after the dismissal of a criminal charge. (Id, at p.
370.)
3. Constitutional Provisions Limit the Ability of the Legislature
to Affect the CUA
The California Constitution states, "The Legislature may amend
or repeal referendum statutes. It may amend or repeal an
initiative statute by another statute that becomes effective
only when approved by the electors unless the initiative statute
permits amendment or repeal without their approval." (Cal.
Const., art. II, Sec. 10.) Therefore, unless the initiative
expressly authorizes the Legislature to amend an initiative,
only the voters may alter statutes created thereby.
The court in Proposition 103 Enforcement Project vs. Quackenbush
(1998) 64 Cal.App.4th 1473, explained:
The purpose of California's constitutional limitation
on the Legislature's power to amend initiative
statutes is to protect the people's initiative powers
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by precluding the Legislature from undoing what the
people have done, without the electorate's consent.
Courts have a duty to jealously guard the people's
initiative power, and hence to apply a liberal
construction to this power wherever it is challenged
in order that the right to resort to the initiative
process is not improperly annulled by a legislative
body. At the same time, despite the strict bar on the
Legislature's authority to amend initiative statutes,
the Legislature is not precluded from enacting laws
addressing the general subject matter of an
initiative. The Legislature remains free to address a
related but distinct area.
The California Supreme Court recently ruled on the power of the
Legislature to amend or affect the Compassionate Use Act (CUA).
(People v. Kelly (2010) 47 Cal.4th 1008.) In Kelly, the court
ruled that the Legislative restriction on the number of plants a
qualified patient may possess was unconstitutional as it
interfered with the rights established by the initiative.
Although the Legislature may clarify or expand the rights
established in Proposition 215, it may not enact legislation
that interferes with the use of marijuana for medicinal
purposes. The Kelly Court stated:
Under the CUA [patients and primary caregivers] are
not subject to any specific limits and do not require
a physician's recommendation in order to exceed any
such limits; instead they may possess an amount of
medical marijuana reasonably necessary for their, or
their charges', personal medical needs. By extending
the reach of Health and Safety Code Section 11362.77's
quantity limitations beyond those persons who
voluntarily register under the MMP [Medical Marijuana
Program] and obtain an identification card that
provides protection against arrest - and by
additionally restricting the rights of all qualified
patients and primary caregivers who fall under the CUA
- the language of Section Health and Safety Code
Section 11362.77 effectuates a change in the CUA that
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takes away from rights granted by the initiative
statute. In this sense, quantity limitations conflict
with - and thereby substantially restrict - the CUA's
guarantee that a qualified patient may possess and
cultivate any amount of marijuana reasonably necessary
for his or her current medical condition. In that
respect, Section 11362.77 improperly amends the CUA in
violation of the California Constitution. (People v.
Kelly, supra, 47 Cal.4th 1008, 1044.)
This bill creates a statewide prohibition for any medical
marijuana dispensary to be located within 600 feet of a school.
It is arguable that in some jurisdictions this restriction may
completely eliminate medical marijuana dispensaries. In that
case, the prohibition may be viewed by the court as
"substantially restricting" access to medical marijuana. If
that is the case, this proposed legislation, if enacted, may be
invalidated as unconstitutional.
AS THE LEGISLATURE CANNOT CONSTITUTIONALLY SET OR LIMIT THE
AMOUNT OF MARIJUANA A QUALIFIED PATIENT MAY POSSESS, CAN THE
LEGISLATURE CONSTITUTIONALLY PROHIBIT A VALID COOPERATIVE OR
COLLECTIVE FROM OPERATING WITHIN 600 FEET OF A SCHOOL?
4. California Supreme Court Case Interpreting the Term "Primary
Caregiver" Arguably Limits the Function or Powers of
Caregivers under the Act, Particularly as Concerns Providing
Marijuana to Patients
In People v. Mentch (2008) 45 Cal.4th 274, the California
Supreme Court interpreted the term "primary caregiver" within
the mean of the CUA. The defendant in Mentch (Roger Mentch)
operated a business called the Hemporium and provided marijuana
to five medical marijuana users, each of whom had a doctor's
recommendation to use the drug. Mentch testified that he did
not make a profit from medical marijuana, but only recovered his
expenses. He took two of the patients/customers to medical
appointments on a sporadic basis. He counseled his
patients/customers on the best strains of marijuana for their
particular maladies. (Id, at pp. 280-281.)
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The court found that Mentch was not a primary caregiver. The
court succinctly held: "[A] defendant asserting primary
caregiver status must prove at a minimum that he or she (1)
consistently provided caregiving, (2) independent of any
assistance in taking medical marijuana, 3) at or before the time
he or she assumed responsibility for assisting with medical
marijuana." (Id, at p. 283.) The court continued: "A primary
caregiver must establish he or she satisfies the responsibility
clause cased on evidence independent of the administration of
marijuana." (Id, at p. 284.) The words the statute uses --
housing, health, safety -- imply a caretaking relationship
directed at the core survival needs of a seriously ill patient,
not just one single pharmaceutical need." (Id, at p. 286.)
5. Joint Consideration of Mentch and Kelly
The decision in Kelly clearly establishes the right of a patient
to obtain any amount of marijuana necessary to treat his or her
malady. The decision in Mentch effectively limits the
assistance a qualified patient can received from others in
obtaining medical marijuana. A patient who does not have a
primary caregiver who meets the standards set out in Mentch must
rely on his or her own efforts to obtain medical marijuana. A
law that substantially or significantly impedes the
patient's ability to obtain medical marijuana - including by
make it unreasonably difficult for a patient to reach a coop or
cooperative - would be challenged as being an unconstitutional
amendment to the CUA.
IN CONSIDERATION OF THE RELATIVELY STRINGENT REQUIREMENTS FOR A
PERSON TO BE A PRIMARY CAREGIVER, WOULD STATEWIDE RESTRICTIONS
ON THE LOCATION AND ESTABLISHMENT OF MEDICAL MARIJUANA
COOPERATIVES AND OTHER PROVIDERS BE UNDULY BURDENSOME?
6. Los Angeles Ordinance
Terms of the Ordinance
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This bill appears to be modeled in part on an ordinance adopted
by Los Angeles City Council in January, 2010 and only fully
implemented in the past week. Two of the main reasons stated by
proponents of the measure were that dispensaries were
proliferating too rapidly and concentrating in certain areas.
It appears that residents in some areas complained of excess
traffic, congregation of patients near sites, litter and other
problems.
The Los Angeles ordinance prohibits medical marijuana
dispensaries from being located within 1,000 feet of sensitive
locations, including schools churches and parks. A provision in
the ordinance allows police to obtain patient lists and doctor's
recommendations from a dispensary without a warrant. It also
appears that a violation of the Los Angeles ordinance is
punishable by a jail term of up to six months and civil fines of
up to $2,500 per day. In the past week, orders to approximately
440 dispensaries to shut down were implemented.
Court Challenges
It appears that numerous challenges to the ordinance were filed
in Los Angeles courts. Americans for Safe Access (ASA) sought
at injunction in the Los Angeles County Superior Court against
the ordinance and Los Angeles City Council on the grounds that
the 1,000-foot restriction effectively eliminates access to
medical marijuana and thereby violates the Compassionate Use
Act. A final request for an injunction was denied on June 4,
2010, clearing the way for enforcement of the ordinance.
However, additional litigation in the matter will continue.
The Los Angeles Times, in an article filed June 5, 2010,
explained the court's order and pending matters before the
court:
Attorneys for patients using medical marijuana had
filed a class-action lawsuit against the city last
week, contending that the law would unconstitutionally
bar patients' access to their medicine. ? In court
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Friday, attorneys presented a map to the judge that
they said showed most dispensaries will have to close
if forced to
comply with the ordinance? [Judge] Chalfant rejected
that argument, saying because patients can grow their
own marijuana and an estimated 137 shops will be
allowed to remain open at least temporarily, there was
no reason to issue an emergency order stopping the
city from implementing the law.
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"I believe access to medical marijuana ? is supposed
to be limited," the judge said. "It is not supposed to
be freely available on the street to anyone who wants
it; that was the intention of the people."
He said, however, that patients may have grounds to
ask for an injunction based on their privacy rights -
the city ordinance says police will be able to obtain
patient lists and doctors' recommendations without a
warrant.
The judge also denied requests from lawyers
representing dispensaries to stop the ordinance. The
lawyers had contended that their clients' rights as
property owners and their due process rights would be
violated when the city's law takes effect. Chalfont
ordered attorneys to file additional papers on whether
allowing certain dispensaries to remain open while
closing others would be a violation of the equal
protection clause of the California Constitution.
Hearings for the patients and the dispensaries were
set for early July.
ARE CHALLENGES TO THE LOS ANGELES ORDINANCE STILL BEING
LITIGATED?
7. Local Regulation Generally- Preemption Except for Ordinances
that are More Restrictive than this Bill
Since the passage of SB 420 in 2003, medical marijuana
regulation has been done by local jurisdictions. This bill does
include a "grandfather" clause that allows a local ordinance
enacted prior to the effective date of this bill to stand.
However, after the effective date of this bill, only local
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ordinances that are more restrictive than this bill as to
location and establishment of medical marijuana facilities will
not be preempted by state law.
It has been argued that a single state-wide standard for
locations of medical marijuana dispensaries ignores the wide
differences among communities in California. These differences
extend to physical features, population density, transportation,
medical needs of patients and public attitudes about medical
marijuana. It can be argued that each local government entity,
in comparison with the state, best understands the particular
issues concerning medical marijuana that may arise in each city
or county. A standard that is workable in a rural area could be
very difficult to comply with in a very dense urban area such as
San Francisco.
BECAUSE OF THE UNIQUE CIRCUMSTANCES IN EACH CITY AND COUNTY -
INCLUDING DENSITY OF POPULATION, RENTAL PRICES, TRANSPORTATION,
AND HEALTH PROBLEMS IN PARTICULAR NEIGHBORHOODS - SHOULD
REGULATION OF THE LOCATION AND ESTABLISHMENT OF MEDICAL
MARIJUANA FACILITIES BE LEFT TO LOCAL GOVERNMENT?
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