BILL ANALYSIS �
SB 847
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 847 (Correa) - As Amended: May 10, 2011
SENATE VOTE : 31-2
SUBJECT : Medical Marijuana Program: zoning restrictions:
residential use.
SUMMARY : Prohibits any medical marijuana (MM) entity that
possesses, cultivates, or distributes MM from locating within
600 feet of a residential area unless a local ordinance has been
adopted to specifically regulate the location of these entities
in relation to residential use. Specifically, this bill :
1)Prohibits any medical marijuana (MM) entity that possesses,
cultivates, or distributes MM from locating within a 600-foot
radius of a residential zone or residential use unless the
local governing body has adopted an ordinance specifically
regulating the location of these entities in relation to
residential use.
2)Permits the local ordinance in 1) above to be more or less
restrictive than the 600-foot radius established by this bill.
EXISTING LAW :
1)Establishes the Compassionate Use Act, approved by voters as
Proposition 215 of 1996, to provide the right to obtain and
use marijuana for medical purposes where medical use is deemed
appropriate and has been recommended by a physician and
ensures that patients and their primary caregivers are not
subject to criminal prosecution or sanction. Protects
physicians from punishment for recommending marijuana to a
patient for medical purposes.
2)Prohibits 1) above from being construed to supersede
legislation prohibiting persons from engaging in conduct that
endangers others, or to condone the diversion of marijuana for
non-medical purposes.
3)Prohibits 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 to
collectively or cooperatively cultivate marijuana for medical
purposes, from being solely on the basis of that fact subject
to state criminal penalties under existing law.
4)Establishes the Medical Marijuana Program (MMP) within the
Department of Public Health (DPH) to provide a voluntary
medical marijuana identification card (MMIC) issuance and
registry program for qualified patients and their caregivers
administered through a patient's county of residence.
5)Prohibits any MM cooperative, collective, dispensary,
operator, establishment, or provider who possesses,
cultivates, or distributes MM, as specified, from being
located within 600 feet of a school.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, a growing
number of MM dispensaries have, in some cases, literally
opened shop right under apartments with kids, thus subjecting
families to second hand smoke from marijuana. The author
argues that, as these establishments proliferate, state law
provides limited guidance on the most appropriate locations
for these establishments. The author maintains that some
local officials worry that MM entities located near private
residences may create public safety and health problems. The
author points out that last year, AB 2650 (Buchanan), Chapter
603, Statutes of 2010, set a precedent for creating a buffer
zone between specific land uses, i.e. schools, and these
establishments and this bill is a similar measure to ensure
that MM dispensaries are located a reasonable distance away
from private residences. The author states that this bill
incorporates local government control by providing for a
default buffer zone of 600 feet between MM establishments and
residential areas in the event that a local government has not
yet enacted its own local ordinance establishing a smaller or
larger buffer.
2)BACKGROUND . The potential medicinal properties of marijuana
have been the subject of much research and debate. Currently,
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marijuana is classified under the Federal Controlled
Substances Act (FCSA) as a Schedule I controlled substance,
meaning it is considered to have no medicinal value and high
potential for abuse. According to the federal Food and Drug
Administration (FDA), an evaluation by several federal
agencies, including the FDA and the National Institute on Drug
Abuse, concluded that no sound scientific studies supported
medical use of marijuana for treatment in the U.S. This
finding conflicts with a review by the Institute of Medicine
(IOM), which stated that scientists have confirmed that the
cannabis plant contains active ingredients with therapeutic
potential for relieving pain, controlling nausea, and
stimulating appetite. As a result, the IOM concluded that
further clinical research on cannabinoid drugs and safe
delivery systems was warranted. A 2008 position paper by the
American College of Physicians (ACP) in support of research
into the therapeutic role of marijuana states that a clear
discord exists between the scientific community and federal
legal and regulatory agencies over the medicinal value of
marijuana, which impedes the expansion of research. The ACP
maintains that the concern that marijuana is a "gateway" drug
also hinders opportunities to evaluate its potential
therapeutic benefits. However, the IOM review concluded that
marijuana has not been proven to be the cause or even the most
serious predictor of serious drug abuse. Additionally, the
ACP points out that the data on marijuana's role in illicit
drug use progression only pertains to its nonmedical use.
3)PROPOSITION 215 . In November 1996, Californians voted in
favor of Proposition 215, the Compassionate Use Act, to ensure
the right of patients to obtain and use marijuana in
California to treat specified serious illnesses. Prop 215
protects physicians who appropriately recommend the use of
marijuana to patients for medical purposes from criminal
penalties; exempts qualified patients and their primary
caregivers from state drug laws prohibiting possession and
cultivation of marijuana; and, directs the state to implement
a plan for the safe and affordable distribution of marijuana.
The U.S. Supreme Court specifically ruled on whether Prop 215
could decriminalize the use of marijuana for medicinal
purposes. Gonzalez vs. Raich (2004) 125 S.Ct. 3195 held
California could not exempt marijuana for medicinal use from
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the criminal possession statute and based its ruling on the
idea 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, as a result, falls within
interstate commerce. Additionally, the Court ruled that the
FCSA preempts any state attempt to decriminalize marijuana,
meaning that federal agencies may enforce federal law in
California, notwithstanding Proposition 215, but there is no
requirement that state law enforcement assist in enforcement.
4)MMP . The MMP was authorized through SB 420 (Vasconcellos),
Chapter 875, Statutes of 2003, to clarify provisions of Prop
215 and to create a MMIC Program for medically qualified
patients and their caregivers. The MMP began in May 2005 with
three pilot counties and expanded statewide in August 2005.
Currently, 56 of the state's 58 counties participate. DPH
reports that 7,807 cards were issued in fiscal year 2010-11,
and the total number of cards issued to date is 52,549. The
MMP allows law enforcement and the public to verify the
validity of a qualified patient or caregiver's card as
authorization to possess, grow, transport, and/or use MM in
California through a database of authorized cardholders
available on DPH's Internet Website.
Only patients or their legal representatives may apply for a
card for themselves and/or their primary caregivers. The
patient, or applicant, is a person diagnosed with a serious
medical condition for which the medical use of marijuana is
appropriate, including AIDS; anorexia; arthritis; cancer;
chronic pain; glaucoma; migraine; spasms associated with
multiple sclerosis; epileptic seizures; severe nausea; and,
any other chronic or persistent medical condition that limits
the ability of the patient to conduct one or more major life
activities, or if not alleviated, may cause serious harm to
the patient's safety, physical, or mental health. When
submitting an application for the MMIC, patients are
responsible for providing proof of county residency, proof of
identity, and a copy of written documentation from their
physician stating that they have a serious medical condition
and that the medical use of marijuana is appropriate, and for
paying the requisite state and county administration fees.
The MMIC is valid for one year, with certain exceptions.
5)MM ESTABLISHMENTS . In August 2008, the state Attorney
General's Office (AG) issued guidelines for the security and
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non-diversion of marijuana grown for medical use. The
guidelines state that although MM dispensaries have been
operating in California for years, dispensaries, as such, are
not recognized under the law and the only recognized group
entities are cooperatives and collectives that operate in
accordance with the MMP and the AG guidelines. According to
the guidelines, in order to operate legally, a collective or
cooperative must show evidence that it is operating according
to the following principles:
a) No individual or group may cultivate or distribute
marijuana in a manner that generates profit;
b) Collectives should obtain all applicable local
government permits and business license permits;
c) Collectives should maintain strict membership
requirements and enforce the requirements using thorough
applications and verification procedures;
d) Collectives should only possess and distribute marijuana
that has been cultivated by patient or primary caregiver
members;
e) Collectives must prohibit the sharing or sale of
marijuana to non-members;
f) Collectives must operate securely and take measures to
ensure the security of neighbors by taking care in the way
marijuana and cash are handled and documented; and,
g) Collectives must ensure that primary caregivers are
truly providing housing, health care, and other support
indicating a relationship with a patient.
According to a 2010 report by the League of California Cities
entitled "Medical Marijuana Facilities: Land Use Planning in a
Sea of Uncertainty," local governments throughout the state
continue to struggle with public policy issues regarding the
use, distribution, and regulation of marijuana. A number of
cities and counties are embroiled in litigation. Some are
engaged in philosophical debates involving the morality of
drug availability and use and others are simply concerned
about local land use controls. Some cities and counties have
permanently banned dispensary operations in their communities,
others have adopted temporary land use moratoria, and others,
such as the City of Los Angeles, have adopted regulations
permitting a limited number of dispensaries. Data from
Americans for Safe Access indicate that a total of 143 cities
and 12 counties in California have all banned MM dispensaries.
An additional 103 cities and 15 counties have imposed
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moratoriums while another 42 cities and nine counties have
passed ordinances to regulate them.
In October 2009, the U.S. Department of Justice (DOJ) issued a
memo announcing that it would no longer raid MM dispensaries
that are established legally under state law. Specifically,
the memo indicated that the prosecution of significant
traffickers of illegal drugs and the disruption of illegal
drug manufacturing and trafficking networks remained a core
priority in the DOJ's efforts against narcotics and dangerous
drugs, and that the DOJ's investigative and prosecutorial
resources should be concentrated on these objectives.
6)RELATED LEGISLATION .
a) AB 223 (Ammiano) establishes a comprehensive and
multidisciplinary commission to address issues regarding
the legality and implementation of Prop 215 and the state's
MM law. AB 223 is a two-year bill in the Assembly Public
Safety Committee.
b) AB 1300 (Blumenfield) states that nothing in the bill
prevents a city or other local governing body from adopting
and enforcing local ordinances that regulate the location,
operation, or establishment of a MM cooperative or
collective; from civilly or criminally enforcing those
local ordinances; and, from enacting other laws consistent
with the MMP, as specified. AB 1300 is pending in the
Senate Public Safety Committee.
7)PRIOR LEGISLATION .
a) AB 390 (Ammiano) of 2010 would have legalized the
possession, sale, cultivation, and other conduct relating
to marijuana by persons over the age of 21. AB 390 was
referred to the Assembly Health Committee but was not set
for a hearing.
b) AB 2650 prohibits operation or establishment of a MM
cooperative, collective, dispensary, or provider within 600
feet of a school.
c) SJR 14 (Leno) of 2009 would have called on the President
and Congress to take specified actions relating to the use
of marijuana for medical purposes. SJR 14 failed passage
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on the Assembly floor.
d) SB 420 creates the MMP for patients authorized to engage
in the medical use of marijuana and their caregivers.
8)SUPPORT . The sponsor of this bill, the City of Anaheim,
contends that an unintended consequence of Prop 215 has been
the widespread proliferation of MM dispensaries, often within
neighborhoods. The sponsor asserts that this bill recognizes
the importance of protecting our youth from the various
negative impacts of MM establishments by providing local
communities with another layer of protection aimed at keeping
these facilities out of residential neighborhoods. Supporters
add that specifying a 600 foot buffer between these entities
and residential areas in a manner that is similar to what
already exists for schools is a reasonable and simple approach
to ensuring that neighborhoods are not negatively and unduly
impacted.
9)OPPOSITION . Representatives of MM patients and providers
object to this bill, arguing that it preemptively imposes an
arbitrary one-size-fits-all statewide standard on local
governments that have not yet adopted regulations governing MM
establishments, which they contend, is a highly unusual
usurpation of local land use policy. Opponents maintain that
high density cities would experience a reduction or outright
elimination of lawful dispensary locations as a result of this
bill, which would then impose an unnecessary and unacceptable
burden on qualified patients accessing MM.
10)DOUBLE REFERRAL . This bill is double referred. Should it
pass out of this committee, it will be referred to the
Assembly Committee on Local Government.
11)POLICY COMMENTS .
a) Enforcement of this bill as it relates to cooperatives
and collectives could be complicated given that Prop 215
specifically permits patients and their primary caregivers
to create and operate MM collectives and cooperatives free
from criminal prosecution and the AG's guidelines point out
that collectives are not defined in state law. According
to the AG's guidelines, while a collective is not a
statutory entity, it may have to organize as some form of
business to carry out its activities. However, a MM
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dispensary could be deemed by its operators as a collective
and claim that, as such, it does not need to obtain a
business license.
b) This bill permits local governments to enact more
restrictive ordinances regulating the location of MM
establishments relative to residential areas and could
potentially result in eliminating these facilities in urban
or suburban areas. In such cases, the restrictions in
these ordinances and in this bill may be viewed by courts,
pursuant to existing case law, as creating substantial
barriers for patients to access MM and, consequently, this
bill, if enacted, could be invalidated as unconstitutional.
c) Numerous local governments throughout California have
already taken action to regulate the placement of MM
establishments in their areas and continue to do so. As a
result, the need for this bill appears unclear.
REGISTERED SUPPORT / OPPOSITION :
Support
City of Anaheim (sponsor)
Association of California Cities - Orange County
City of Norwalk
Peace Officers Research Association of California
Opposition
Americans for Safe Access
California National Organization for the Reform of Marijuana
Laws
Drug Policy Alliance
Marijuana Policy Project
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097