BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
8
4
7
SB 847 (Correa)
As Amended April 25, 2011
Hearing date: May 5, 2011
Health and Safety Code
JM:mc
MEDICAL MARIJUANA
HISTORY
Source: City of Anaheim
Prior Legislation: AB 2650 (Buchanan) - Chapter 603, Stats. 2010
SB 420 (Vasconcellos) - Chapter 875, Stats. 2003
Proposition 215, November 1996 General Election
Support: Peace Officers Research Association of California
Opposition:Americans for Safe Access; Drug Policy Alliance
(THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN COMMITTEE
PURSUANT TO AN AGREEMENT BY THE AUTHOR MADE IN THE GOVERNANCE
AND FINANCE COMMITTEE.)
KEY ISSUES
SHOULD A SPECIFIED MEDICAL MARIJUANA ENTITY THAT OPERATES THROUGH A
STOREFRONT OR MOBILE RETAIL OUTLET BE PROHIBITED FROM LOCATING
WITHIN A 600-FEET RADIUS OF A "RESIDENTIAL ZONE OR RESIDENTIAL USE?"
(More)
SB 847 (Correa)
PageB
SHOULD A CITY COUNCIL OR COUNTY BOARD OF SUPERVISORS BE AUTHORIZED
TO ENACT AN ORDINANCE THAT SETS A DIFFERENT STANDARD FOR THE
LOCATION OF MEDICAL MARIJUANA ESTABLISHMENTS IN RELATION TO
RESIDENTIAL USES THAN THE STATEWIDE 600-FEET LIMIT?
PURPOSE
The purpose of this bill is to prohibit a medical marijuana
cooperative, collective, dispensary, operator, establishment or
provider that operates through a storefront or mobile retail
outlet from being located within a 600-feet radius of a
"residential zone or residential use," unless the local
governing entity (city council or board of supervisors) enacts
an ordinance regulating the residential location of such medical
marijuana entities.
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
for 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 primary caregivers who obtain and
use marijuana for medical purposes upon the recommendation of
a physician are not subject to criminal prosecution.
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
(More)
SB 847 (Correa)
PageC
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 recommending medical marijuana to a
patient. (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.)
Existing law 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.
(Health & Saf. Code � 11362.768.)
Existing law 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. (Health &
Saf. Code � 11362.768, subd. (c).)
Existing law provides that the 600-feet restriction shall not
apply to medical marijuana cooperatives or dispensaries, as
specified, which are also licensed residential medical or elder
(More)
SB 847 (Correa)
PageD
care facilities. (Health & Saf. Code � 11362.768, subd. (d).)
Existing law provides that 660-feet restriction shall only apply
to a medical marijuana facility, as specified, authorized by law
to possess, cultivate or distribute medical marijuana that has a
storefront or mobile retail outlet that ordinarily requires a
business license. (Health & Saf. Code � 11362.768, subd. (e).)
Existing law states that a local entity can only adopt 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 state law. (Health & Saf. Code �
11362.768, subd. (f).)
Existing law does not preempt local ordinances, adopted prior to
January 1, 2011, that regulate the location or establishment of
a medical marijuana cooperative, collective, dispensary,
operator, establishment, or provider. (Health & Saf. Code �
11362.768, subd. (g).)
This bill prohibits a medical marijuana cooperative, collective,
dispensary, operator, establishment or provider that operates
through a retail or mobile retail outlet from being located
within a 600-feet radius of a residential zone or residential
use.
This bill provides that the 600-feet limit would not apply if a
local governing entity (city council or board of supervisors)
enacts an ordinance specifically regulating the residential
location of such medical marijuana entities. The local
ordinance concerning establishment of medical marijuana
establishments in relation to residences can either be more
restrictive or less restrictive than state law.
COMMENTS
1. Need for This Bill
According to the author:
(More)
SB 847 (Correa)
PageE
SB 847 as presented in the Governance and Finance
Committee to be officially amended here creates a
600-foot buffer zone between marijuana dispensaries
and residential neighborhoods and residential usage
areas. The language will create a "good neighbor
fence" of a default 600-foot buffer zone which will
NOT override any existing local ordinance nor prevent
any future local ordinance from superseding this
measure.
The bill will provide a basic distance between what
many believe to be an incompatible use within a
neighborhood. The legislature has recognized the
conflict by establishing such a buffer zone around
schools last year in AB 2650 (Buchanan), Ch. 603,
Stats. 2010. This bill simply provided a default
buffer zone of 600 feet from residential areas until
government that hasn't enacted its own local ordinance
acts on its own with a smaller or larger buffer.
This measure is necessary to respond to the growing
number of dispensaries that in some cases have
literally opened shop right under apartments with
kids, with families subjected to second-hand marijuana
smoke. I know this because I personally witnessed
this in my own district.
This measure does not restrict the number of
businesses that can open. That is up to local
government. This measure will simply protect our
neighborhoods and our children. The debate over
medical marijuana is not whether these should be made
available; the voters said it should be for medical
uses. The issue is whether these businesses, such as
in other instances such as alcohol and other adult
venues should be kept a reasonable distance from where
children play and families live.
2. Compassionate Use Act of 1996 (Proposition 215) - Medical
(More)
SB 847 (Correa)
PageF
Marijuana
The Compassionate Use Act (CUA) was enacted in 1996. (Health &
Saf. Code � 11362.5.) The CUA established the right of patients
to obtain and use marijuana to treat specified 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.
The CUA is a very general law. It establishes the right of a
patient to obtain medical marijuana pursuant to a physician's
recommendation. The initiative then simply encourages the state
and federal governments to "implement a plan for safe and
affordable distribution or marijuana �to qualified patients]."
It has been argued that very little has been done to implement
the initiative. (McCabe, It's High Time: California Attempts to
Clear the Smoke Surrounding the Compassionate Use Act, (2004) 35
McGeorge L. Rev. 545, 546.) Instead of a comprehensive
implementation plan, numerous uncoordinated bills have been
introduced in the Legislature. Further, the courts have only
provided a small measure of clarity and certainty in this area.
3. California Constitutional Provisions Limit the Ability of the
Legislature to Amend the CUA
Legislative Power to Amend Initiatives Generally
The California Constitution states, "The Legislature ? 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.
Legislation Affecting the Compassionate Use Act - Legislature
(More)
SB 847 (Correa)
PageG
Cannot Limit the Amount of Medical Marijuana a Patient may
Possess
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 medical marijuana patient may possess was
unconstitutional as it interfered with the rights established by
the CUA initiative. Although the Legislature may clarify or
expand the rights established in the CUA, it may not enact
legislation that interferes with those.
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. ? 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 at p. 1044.)
Restrictions in this Bill on Placing a Medical Marijuana
Establishment within Specified Distances from Residences
This bill creates a statewide prohibition for any medical
marijuana collective, cooperative, operator, provider or
dispensary to be located within 600 feet of a residential zone
or residential use, unless the city council or board of
supervisor adopts an ordinance "specifically regulating the
location of such establishments in relation to residential
uses." The statewide restriction, applicable in the absence of
(More)
SB 847 (Correa)
PageH
a local ordinance, is very broad. Residential use would appear
to mean any residence, even in any area that is otherwise
commercial or industrial.
It appears that a local ordinance regulating the placement of
medical marijuana entities near residences could either be more
restrictive or less restrictive than the 600-feet statewide
standard. An ordinance in one county could provide that no
facility could be within 5,000 feet of a residence for example.
An ordinance in another county or a city could allow such
entities to operate in residential areas with few limitations.
Local government ordinances on medical marijuana entities could
well be subject to frequent amendment or repeal, further
complicating matters for medical marijuana providers.
This Bill Applies to Entities that Normally Require a Business
License; Complications with Cooperatives and Collectives
It must be noted, however, that the bill and the statute the
bill amends only apply to an entity with a storefront or mobile
retail outlet that ordinarily requires a local business license.
A dispensary or establishment that operates like any retail
business would clearly fall under the terms of this bill.
Things are not as clean when the bill is applied to cooperatives
and collectives. Health and Safety Code Section 11362.775<1>
specifically authorizes patients and primary caregivers to
create and operate collectives and cooperatives and be free from
criminal prosecution for possession, cultivation, sale or
distribution and transportation of medical marijuana. (Health &
Saf. Code � 11362.775.) California appellate courts appear to
indicate that this statute is valid under the CUA as advancing
the intent of the initiative. (County of Butte v. Superior
Court (2009) 175 Cal.App.4th 729, 732-733; People v. Urziceanu
(2005) 132 Cal.App.4th 747, 785.)
A cooperative (coop) is a creature of state law and subject to
---------------------------
<1> Section 11362.775 is not part of the CUA itself. Rather, it
was enacted in SB 420 (Vasconcellos), Ch. 875, Stats. 2003, with
the intent of implementing the CUA.
(More)
SB 847 (Correa)
PageI
detailed regulations. (Guidelines for the Security and
Non-Diversion of Marijuana Grown for Medical Use, Cal. Attorney
General. Aug. 2008, p. 8.) It appears that a coop would
ordinarily require a local business license. As to coops, the
constitutionality of this bill would turn on whether or not the
bill restricts the rights of patients to obtain and use medical
marijuana as provided in the CUA and Health and Safety Code
Section 11362.775, which provides specific criminal immunity for
patients in coops.
Unlike cooperatives, collectives are largely undefined.
(Guidelines for the Security and Non-Diversion of Marijuana
Grown for Medical Use, Cal. Attorney General. Aug. 2008, p. 8.)
The application of the bill to collectives could be complicated.
For example, a marijuana dispensary or more traditional form of
business could be deemed by its operators to be a collective and
claim that it need not obtain a business license.
Summary
In many jurisdictions, this bill would greatly reduce medical
marijuana dispensaries, cooperatives and collectives. The bill
would allow local government authority to enact even more
restrictive ordinances, perhaps eliminating any possibility of a
medical marijuana facility in any urban or suburban area.
If a statewide prohibition on specified medical marijuana
facilities within 600 feet of a residential use would
unconstitutionally amend the CUA, it is doubtful that such a
prohibition is saved by providing statutory authority of a local
government to allow such placement of medical marijuana
entities, especially where a local ordinance could be more
restrictive than the 660-feet restriction in state law. A right
guaranteed by initiative certainly cannot be conditioned on, or
limited by, local government initiatives. Simply put, only the
voters or the Legislature, and the Legislature only under
(More)
SB 847 (Correa)
PageJ
specified conditions, can amend an initiative. While this
particular issue was not decided by the Supreme Court in Kelly,
that result seems extremely likely. (People v. Kelley, supra,
47 Cal.4th 1008, 1025-1049.)
CAN THE LEGISLATURE CONSTITUTIONALLY PROHIBIT A VALID
COOPERATIVE OR COLLECTIVE FROM OPERATING WITHIN 600 FEET OF ANY
RESIDENTIAL ZONE OR USE?
CAN THE LEGISLATURE CONSTITUTIONALLY PROHIBIT A DISPENSARY,
OPERATOR, ESTABLISHMENT, OR PROVIDER FROM OPERATING WITHIN 600
FEET OF ANY RESIDENTIAL ZONE OR USE?
CAN THE LEGISLATURE AUTHORIZE CITIES AND COUNTIES TO ENACT
ORDINANCES SPECIFICALLY REGULATING THE LOCATION OF MEDICAL
MARIJUANA ESTABLISHMENTS, AS SPECIFIED, IN RELATION TO
RESIDENCES, THEREBY EXCEPTING THE CITY OR COUNTY FROM THE
600-FEET STANDARD FOR MEDICAL MARIJUANA ESTABLISHMENTS?
IF THIS BILL CREATES SUBSTANTIAL BARRIERS FOR PATIENTS IN
OBTAINING MEDICAL MARIJUANA, WILL THE BILL BE AN INVALID
AMENDMENT OF THE COMPASSIONATE USE ACT, WHICH AUTHORIZES
THE USE OF MEDICAL MARIJUANA?
4. Apparent Conflicts with Existing Provisions Created by this
Bill - Suggested Amendment
This bill amends Health and Safety Code Section 11362.768, which
prohibits a medical marijuana establishment from operating
within 600 feet of a school. Subdivision (g) of Section
11362.768 specifically provides that ordinances adopted prior to
January 1, 2011, are not preempted by the section. However,
subdivision (f) provides that local ordinances adopted after
January 1, 2011, are only valid if more restrictive than the
660-feet state standard.
This bill prohibits a medical marijuana establishment from
operating within 600 feet of a residential use. The bill also
allows a local entity to adopt an ordinance regulating operation
(More)
SB 847 (Correa)
PageK
of a medical marijuana establishment in relation to residential
use that is either more or less restrictive than the 660-feet
statewide standard.
(More)
Thus, the bill creates conflicting provisions in Section
11362.768 as to local ordinances regulating the placement of
medical marijuana establishments. It is suggested that the bill
be amended to clarify that the local ordinances can only be more
restrictive than state law if the ordinance concerns the
distance from a medical marijuana establishment to a school.
SHOULD THE BILL BE AMENDED TO CLARIFY THE DIFFERENT STANDARDS
FOR LOCAL ORDINANCES CONCERNING THE PLACEMENT OF MEDICAL
MARIJUANA ESTABLISHMENTS NEAR SCHOOLS AS OPPOSED TO RESIDENCES?
5. Related Bill - AB 1300 (Blumenthal)
AB 1300 would define the terms "cooperative or collective" for
purposes of the CUA to mean a location where qualified patients,
persons with valid identification cards or primary caregivers
"associate ? in order to collectively or cooperatively cultivate
or dispense marijuana for medical purposes ?" The bill could be
interpreted as defining cooperatives differently in the medical
marijuana context than in other state law. The definition in AB
1300 is arguably much more informal than an incorporated
cooperative, such as the Sacramento Food Coop or a farmers'
coop. An informal cooperative or collective might not need a
business license, which could exempt it from regulation under
this bill.
Further, AB 1300 provides that it is not intended to prevent any
local entity from adopting an ordinance regulating medical
marijuana cooperatives or collectives. Similar uncertainties to
those surrounding this bill would face implementation of AB
1300.
AB 1300 is currently in Assembly Health.
6. Los Angeles Ordinance Illustrates the Difficulty of Regulating
Medical Marijuana
Terms of the Ordinance
(More)
SB 847 (Correa)
PageM
The Los Angeles City Council adopted a medical marijuana
dispensary ordinance in January, 2010. 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. An April 21, 2011, article in the Los
Angeles Times noted:
The next round of the costly, drawn-out legal brawl
over how to control medical marijuana dispensaries in
Los Angeles has begun with two new lawsuits
challenging the city's latest ordinance. The
lawsuits, filed in Los Angeles County Superior Court,
follow scores of other suits that stymied the city's
fitful attempts to crack down on an unknown number of
renegade dispensaries. The new ones could launch
another series of judicial hearings and thwart the
city's bid to enforce its ordinance.
Some of the oldest medical marijuana collectives in
Los Angeles sued on April 13 to overturn the
ordinance, which will choose the dispensaries to be
SB 847 (Correa)
PageN
allowed in a lottery, a process the lawsuit mocks as
"a euphemism for a municipal game of 'Russian
Roulette.'" The 21 dispensaries suing the city are
among those the City Council let operate when it
adopted a moratorium on new stores in 2007. The
city's first ordinance would have allowed them to stay
open if they complied with restrictions on locations.
But a judge ruled that key aspects of the law were
unconstitutional, and the City Council passed a second
ordinance that relies on a random drawing to select
100 dispensaries.
ARE CHALLENGES TO THE LOS ANGELES ORDINANCE STILL BEING
LITIGATED?
***************