BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 847|
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THIRD READING
Bill No: SB 847
Author: Correa (D)
Amended: 5/24/11
Vote: 21
SENATE GOVERNANCE & FINANCE COMMITTEE : 6-0, 4/27/11
AYES: Wolk, Huff, DeSaulnier, Fuller, Hernandez, La Malfa
NO VOTE RECORDED: Hancock, Kehoe, Liu
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 5/5/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price
NO VOTE RECORDED: Steinberg
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Medical Marijuana Program: zoning
restrictions: residential
use
SOURCE : City of Anaheim
DIGEST : This bill prohibits 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 school unless the local
governing entity (city council or board of supervisors)
enacts an ordinance regulating the residential location of
such medical marijuana entities.
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ANALYSIS : Existing law, the Compassionate Use Act of
1996 (Health and Safety Code (HSC) Section 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. (HSC Section 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. (HSC Section
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. (HSC Section 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. (HSC Section
11362.5, subd. (d))
Existing law provides that qualified patients, persons with
valid identification cards, and the designated primary
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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. (HSC Section 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. (HSC Section 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. (HSC Section 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 care facilities. (HSC Section
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. (HSC
Section 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.
(HSC Section 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,
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collective, dispensary, operator, establishment, or
provider. (HSC Section 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 school.
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.
Background
Compassionate Use Act of 1996 (Proposition 215) - Medical
Marijuana
The Compassionate Use Act (CUA) was enacted in 1996. (HSC
Section 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.
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." (California Constitution, Article
II, Section 10.) Therefore, unless the initiative
expressly authorizes the Legislature to amend an
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initiative, only the voters may alter statutes created
thereby.
Legislation Affecting the Compassionate Use Act -
Legislature 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.
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 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.
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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.
Related Legislation
AB 1300 (Blumenthal) defines 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.
Prior Legislation
AB 2650 (Buchanan), Chapter 603, Statutes of 2010
SB 420 (Vasconcellos), Chapter 875, Statutes of 2003
Proposition 215, November 1996 General Election
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/24/11)
City of Anaheim (source)
Association of California Cities - Orange County
Peace Officers Research Association of California
OPPOSITION : (Verified 5/24/11)
Americans for Safe Access
Drug Policy Alliance
Marijuana Policy Project
ARGUMENTS IN SUPPORT : According to the author:
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"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."
AGB:mw 5/24/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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