BILL ANALYSIS �
SB 1262
Page 1
Date of Hearing: June 26, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1262 (Correa) - As Amended: June 15, 2014
As Proposed to be Amended in Committee
SUMMARY : Establishes a licensing and regulatory framework for
the cultivation, processing, transportation, testing,
recommendation and sale of medical marijuana to be administered
by the Bureau of Medical Marijuana Regulation (bureau) in the
Department of Consumer Affairs (DCA). Specifically, this bill :
1)Makes legislative findings and declarations regarding medical
marijuana.
2)Requires the Medical Board of California to include in the
cases it prioritizes for investigation and prosecution those
involving repeated acts of excessively recommending marijuana
to a patient for medical purposes without a good faith
examination of the patient and a medical reason for the
recommendation.
3)Prohibits a physician who recommends medical marijuana to a
patient from accepting, soliciting, or offering any form of
remuneration from or to a licensed medical marijuana facility
if the physician or his or her immediate family have a
financial interest in that facility, and makes that conduct a
misdemeanor.
4)Requires the Medical Board to consult with the California
Marijuana Research Program on developing and adopting medical
guidelines for the appropriate administration and use of
marijuana.
5)Prohibits a physician or surgeon from recommending medical
marijuana to a patient unless that person is the "patient's
attending physician" as defined by the Compassionate Use Act
(CUA).
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6)Defines the following terms:
a) "Certified testing laboratory" means a laboratory that
is certified by the bureau to perform random sample testing
of marijuana pursuant to the certification standards for
these facilities promulgated by the DCA;
b) "Bureau" means the Bureau of Medical Marijuana
Regulation in the DCA;
c) "Dispensary" means a distribution operation that
provides marijuana for medical use and that is licensed
pursuant to these provisions;
d) "Licensed cultivation site" means a facility that grows
marijuana for medical use and that is licensed pursuant to
these provisions;
e) "Licensed dispensing facility" means a dispensary or
other facility that provides marijuana for medical use that
is licensed pursuant to these provisions;
f) "Licensed processing facility" means a facility licensed
by the DCA where marijuana or marijuana products are
inspected, packaged, labeled, or otherwise prepared,
warehoused, or stored prior to being provided to another
licensed facility;
g) "Licensed transporter" means an individual or entity
licensed by the DCA to transport marijuana to and from
licensed facilities;
h) "Marijuana" means all parts of the plant cannabis
sativa, cannabis indica, or cannabis ruderalis, whether
growing or not; the seeds thereof; the resin, whether crude
or purified, extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its seeds, or resin. It also
means "marijuana" as defined by Section 11018 of the Health
and Safety Code. It does not include the mature stalks of
the plant, fiber produced from the stalks, oil or cake made
from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of
the mature stalks (except the resin extracted therefrom),
fiber, oil, or cake, or the sterilized seed of the plant
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which is incapable of germination; and,
i) "Fund" is the Medical Marijuana Regulation Fund (Fund)
established under Business and Professions Code section
18101.4.
7)Creates in the DCA the bureau, which shall be administered by
an executive officer who must be a civil servant appointed by
the Governor under civil service rules.
8)Provides that funds for the establishment and support of the
bureau are to be advanced as a loan from the DCA to be repaid,
as specified.
9)Gives the bureau, consistent with the legislative findings and
declarations and the provisions of this chapter, but subject
to local ordinances, the authority to license persons for the
cultivation, manufacture, transportation, storage,
distribution, and sale of medical marijuana within the state
and to collect fees in connection with these actions. But
prohibits the bureau from issuing a license if the applicant
has not met all the specified requirements. And requires that
a license issued be suspended within 10 days if a local agency
notifies the bureau that a licensee is out of compliance with
a local ordinance or regulation.
10)Confers on the bureau all power necessary for the
administration of this chapter, including, but not limited to:
a) Establishing statewide standards for the cultivation,
manufacturing, testing, transportation, distribution, and
sales of medical marijuana and medical marijuana products;
b) Establishing a scale of state-imposed fees for the
cultivation, manufacture, testing, transportation,
distribution, and sale of medical marijuana and medical
marijuana products;
c) Making and prescribing reasonable rules that are
necessary and proper to exercise the powers and perform the
duties conferred upon it;
d) Approving or denying applications, subject to local
ordinances, for cultivation, manufacturing, labeling,
transportation, distribution, provision, donation and sale
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of medical marijuana;
e) Denying, suspending, fining, or revoking any license if
it determines that the granting or continuance of the
license would be contrary to public welfare or morals or
that a person holding or seeking a license has violated any
law prohibiting conduct involving moral turpitude or an
applicable local ordinance. The bureau should have local
agencies provide input to it on these actions.
f) Imposing penalties;
g) Taking any reasonable action with respect to a license
application;
h) Making recommendations to the Legislature for purposes
of establishing an appeals process for a person aggrieved
by a final decision of the bureau;
i) Developing any necessary forms, identification
certificates, and applications;
j) Overseeing the operation of the Fund;
aa) Establishing reasonable fees; and,
bb) Consulting with other agencies, departments, and
entities for establishing statewide standards and
regulations.
11)Prohibits selling, providing, growing, or processing
marijuana other than at a licensed facility, or transporting
marijuana from one facility to another without a license, and
prohibits any of these activities for any other purpose than
those authorized under the Medical Marijuana Program Act
(MMPA).
12)Requires that marijuana and marijuana products be tested by a
certified testing laboratory.
13)Mandates that the bureau require specified identifying
information before issuing a license, as well as a certified
copy of the local jurisdiction's approval to operate, detailed
operating and inventory control procedures, a completed
application, payment of a fee, fingerprints and related
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information by the Department of Justice (DOJ) to obtain
records of criminal conviction. In the case of a license for
a cultivation site, Global Positioning Satellite (GPS)
coordinates of the site are also required.
14)Requires the bureau to deny a license based on past felony
criminal conviction for drug trafficking, embezzlement, one
involving fraud or deceit, or a serious or violent felony as
specified in the Penal Code. Licenses may also be denied
based on a past conviction if the crime is substantially
related to the qualifications, function, or duties of the
business for which the license will be issued.
15)Prohibits the bureau from issuing a license if the applicant
fails to establish with sufficient specificity the
jurisdiction in which the applicant proposes to establish
operations.
16)States that each application for a license is separate and
distinct and that the bureau can charge a separate fee for
each.
17)Prohibits licensees from holding a license in more than one
class of specified medical marijuana activities, except for a
license to transport, and also prohibits licensees from being
an officer, director, member, owner, or shareholder in another
licensed entity.
18)Provides for provisional licensing, beginning January 1,
2015, as specified.
19)Establishes the Fund within the State Treasury.
20)Specifies that all fees collected pursuant to this regulatory
scheme shall be deposited into the fund, and that all monies
in the fund are to be continuously appropriated without regard
to fiscal year to the DCA for the purpose of administering
this chapter. However, all monies collected as a result of
penalties are deposited in the General Fund.
21)Provides that a licensed facility shall not acquire,
cultivate, process, possess, store, manufacture, distribute,
sell, deliver, transfer, transport, or dispense marijuana for
any purposes other than those authorized by the MMPA.
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22)Provides that a licensed dispensing facility shall not
acquire, cultivate, process, possess, store, manufacture,
distribute, sell, deliver, transfer, transport, or dispense
marijuana plants or products except through a licensed
cultivation site or processing facility.
23)Authorizes a licensed transporter to only ship marijuana and
marijuana products to licensed facilities and only in response
to a request for a specific quantity and variety from those
facilities.
24)Requires a licensed transporter, prior to transporting any
medical marijuana product, to complete a shipping manifest
using a form prescribed by the bureau, to securely transmit a
copy of the manifest to both the receiving licensee and the
bureau, prior to transport.
25)Requires licensed transporters to maintain shipping manifests
and make them available to the bureau and local enforcement
entities upon request.
26)Establishes safety and staffing requirements for licensed
transporters when the vehicle contains medical marijuana, as
specified.
27)Prohibits licensed transporters from transporting marijuana
outside the state.
28)Prohibits local jurisdictions from preventing transportation
through or to a licensed entity by a licensed transporter who
acts in compliance with these provisions.
29)Requires the bureau to promulgate regulations by July 1,
2016, for the implementation and enforcement of this Act, and
minimum statewide health and safety and quality assurance
standards associated with the cultivation, transport, storage,
and sale of all medical marijuana products within the state.
30)Gives local agencies the primary responsibility for
enforcement of these standards in accordance with bureau
regulations.
31)Provides conditions which disallow approval of an application
for a license or its renewal, including: non-compliance with
local ordinances or regulations; providing false or incomplete
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information; and, prior sanctions or license revocation within
the last five years.
32)Requires the bureau to deny an application for a license if
that license would tend to create a law enforcement problem or
if its issuance would result in or add to an undue
concentration of licenses, as specified.
33)Allows the bureau to assist state taxation authorities to
develop uniform policies for the state taxation of licensees
and to assist the Division of Occupational Safety and Health
in the development of industry-specific regulations related to
the activities of licensees.
34)Requires advertising for physician recommendations to meet
specified requirements, to bear a specified notice to
consumers, and to comply with false advertising prohibitions.
35)Requires licensed facilities to implement sufficient security
measures to both deter and prevent unauthorized entrance into
areas containing marijuana and theft of the product at those
facilities, as specified, and requires the facility to notify
law enforcement within 24 hours after discovering criminal
activity or any other breaches at the facility.
36)Requires the bureau to annually audit all licensees and
submit audit reports to local code enforcement offices.
37)Prohibits certified testing laboratories from acquiring,
cultivating, processing, possessing, storing, manufacturing,
distributing, selling, delivering, transferring, transporting,
or dispensing marijuana plants or marijuana products except
through a licensed cultivation site, or processing facility.
38)Provides that a licensee shall be subject to the restrictions
of the local jurisdiction in which the facility operates or
proposes to operate, and that even if a license has been
granted, a facility shall not operate in a local jurisdiction
that prohibits the establishment of that type of business.
39)Provides that a willful violation of specified provisions of
this chapter is punishable by a civil fine of up to $35,000
per violation, whereas technical violations are subject to a
civil fine of up to $10,000 per violation.
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40)Allows the director or any district attorney, county counsel,
city attorney, or city prosecutor to bring an action to enjoin
a violation or threatened violation of any provision of this
Act, including but not limited to, a licensee's failure to
correct objectionable conditions. The action shall be brought
in the county in which the violation occurred or is threatened
to occur.
41)States that nothing in these provisions shall prevent a local
government from enforcing local ordinances that regulate the
location, operation, or establishment of a medical marijuana
facility.
42)States that this chapter does not supersede Los Angeles
Measure D of 2013.
43)States that this chapter does not apply to patients and
primary caregivers who care for no more than five qualified
patients under the CUA, and exempts them from licensure when
medical marijuana related activities are conducted for the
patient's personal use and when the primary caregiver does not
receive remuneration.
44)States that information identifying the names of patients,
their medical conditions, or the names of their primary
caregivers received and contained in the records kept by the
DCA for purposes of administering this chapter are
confidential and exempt from the Public Records Act, and not
subject to disclosure, except as necessary for performance of
official duties under this chapter, and in those instances
only necessary information shall be disclosed.
45)Exempts the actions of a licensee or provisional licensee,
and its employees or agents that are conducted in accordance
with this chapter from arrest or prosecution under state law.
46)Exempts a property owner who in good faith and upon
appropriate investigation allows his or her property to be
used by a licensee from arrest or prosecution under state law.
47)Requires licensees to keep records, as specified.
48)Allows the bureau and any state or local agency to examine
the books and records of licensees and inspect the premises of
licensees as necessary, and provides that failure of a
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licensee to cooperate with an inspection will be grounds for
summary suspension of the license.
49)Defines "edible marijuana product" as marijuana or a
marijuana-derived product that is ingested or meant to be
ingested through the mouth and into the digestive system.
50)Requires the bureau to establish quality assurance protocols
by July 1, 2016, to ensure uniform testing, safety, and
labeling for all marijuana sold via dispensaries or other
facilities, or cultivated by any licensed facilities, as
specified, and to develop a list of certified testing
laboratories that can perform uniform testing in compliance
with these provisions and post that list on its Internet Web
site.
51)Requires licensees to bear the responsibility and the costs
for contracting with certified testing laboratories for
testing marijuana samples, and to provide test results to
local code enforcement officers, any other locally designated
enforcement entity, and the bureau, as specified.
52)Provides that for purposes of these provisions, edible
marijuana products are deemed unadulterated food products, and
requires these products to comply with quality assurance
protocols and specified health and safety and labeling
standards.
53)Authorizes the board of supervisors of any county to levy a
tax on the privilege of cultivating, dispensing, producing,
processing, storing, providing, donating, selling, or
distributing marijuana or products containing marijuana, as
specified. However, any tax imposed under these provisions,
shall be subject to voter approval.
54)States that the provisions of this Act are severable, and
that if one is held invalid, the invalidity will not affect
other provision which can still be given effect.
EXISTING LAW :
1)Prohibits the possession, possession with intent to sell,
cultivation, sale, transportation, importation, or furnishing
of marijuana, except as otherwise provided by law. (Health &
Saf. Code, �� 11357, 11358, 11359, and 11360.)
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2)States that the People of the State of California hereby find
and declare that the purposes of the Compassionate Use Act
(CUA) of 1996 are as follows:
a) To ensure that seriously ill Californians have the right
to obtain and use cannabis for medical purposes where that
medical 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 cannabis in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which
cannabis provides relief.
b) To ensure that patients and their primary caregivers who
obtain and use cannabis for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
c) To encourage the Federal and State governments to
implement a plan to provide for the safe and affordable
distribution of cannabis to all patients in medical need of
cannabis. (Health & Saf. Code, � 11362.5, subd.
(b)(1)(A)-(C).)
3)States that nothing in this section shall be construed to
supersede legislation prohibiting persons from engaging in
conduct that endangers others, nor to condone the diversion of
cannabis for nonmedical purposes. (Health & Saf. Code, �
11362.5, subd. (b)(2).)
4)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right
or privilege, for having recommended cannabis to a patient for
medical purposes. (Health & Saf. Code, � 11362.5, subd. (c).)
5)Defines a "primary caregiver" as the individual designated by
a patient who has consistently assumed responsibility for the
housing, health, or safety of that person. (Health & Saf.
Code, � 11362.5, subd. (e).)
6)States that existing law, relating to the possession and the
cultivation of cannabis, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates
cannabis for the personal medical purposes of the patient upon
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the written or oral recommendation or approval of a physician.
(Health & Saf. Code, � 11362.5, subd. (d).)
7)Requires the Department of Public Health to establish and
maintain a voluntary program for qualified patients to apply
for identification cards, and county health departments to
issue identification cards to qualified patients and their
caregivers. (Health & Saf. Code, � 11362.71, subds. (a) and
(b).)
8)Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of cannabis, absent evidence of
fraud. (Health & Saf. Code, � 11362.71, subd. (e).)
9)Provides that patients and caregivers may possess and
cultivate an amount of cannabis reasonably necessary for the
patient's current medical needs, notwithstanding any limits
set by the Legislature that impermissibly amend the CUA.
(People v. Kelly (2010) 47 Cal.4th 1008, 1043.)
10)Requires a person who seeks an identification card to pay a
fee and provide to the county health department the person's:
name, proof of residency, written doctor's recommendation,
doctor's name and contact information, caregiver's name and
duties; and, patient's and caregiver's government-issued photo
identification card. (Health & Saf. Code, � 11362.715, subd.
(a).)
11)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing: a
unique user identification number, an expiration date, the
county health department's name and telephone number, photo
identification of the cardholder, and a toll-free Department
of Public Health telephone number enabling state and local law
enforcement officers to immediately verify the card's
validity. (Health & Saf. Code, � 11362.735, subd. (a).)
12)Prohibits state or local law enforcement officers from
refusing to accept an identification card unless the officer
has reasonable cause to believe that the card is being used
fraudulently or its information is false or fraudulent.
(Health & Saf. Code, � 11362.78.)
13)Provides that qualified patients, persons with valid
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identification cards, and their designated primary caregivers
who associate in order collectively or cooperatively to
cultivate cannabis are not subject to criminal liability on
that basis. (Health & Saf. Code, � 11362.775.)
14)Restricts the location of medical marijuana cooperatives,
collectives, or dispensaries to more than 600 from a school,
and authorizes cities and counties to further restrict the
locations of these establishments. (Health & Saf. Code, �
11362.768, subds. (b), (f), and (g).)
15)Allows local governments to adopt and enforce local
ordinances that regulate the location, operation, or
establishment of a medical marijuana collective or
cooperative. (Health & Saf. Code, � 11362.83, subds. (a) and
(b).)
16)Recognizes the authority of cities and counties to make and
enforce, within their borders, all local, police, sanitary,
and other ordinances and regulations not in conflict with
general laws. (Cal. Const., art. XI, sec. 7.)
17)Licenses and regulates physicians and surgeons under the
Medical Practice Act by the Medical Board within DCA. (Bus. &
Prof. Code, � 2000 et seq.)
18)Requires the Medical Board to prioritize its investigative
and prosecutorial resources to ensure that physicians
representing the greatest threat of harm are identified and
disciplined expeditiously and includes in that prioritization
list: "Repeated acts of clearly excessive prescribing,
furnishing, or administering of controlled substances, or
repeated acts of prescribing, dispensing, or furnishing of
controlled substances without a good faith prior examination
of the patient and medical reason therefor." (Bus. & Prof.
Code, � 2220.05.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Since the
approval of the Compassionate Use Act (Proposition 215) and
passage of SB 420 (2003) no broader, feasible regulatory
structure has been established, and the implementation of
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these laws has been marked by conflicting authorities,
regulatory uncertainty, intermittent federal enforcement
action, and a series of lawsuits.
"Nearly all recent attempts to regulate medical marijuana do not
have appropriate health and safety standards and neglect the
importance of local control.
"SB 1262 will require licensing, set quality assurance and
testing standards, and establish for the sale of medical
marijuana while protecting public safety and local control."
2)Medical Marijuana Law at Present : California voters passed
Proposition 215, the CUA, in 1996. The CUA prohibits
prosecution for growing or using marijuana of Californians who
have the oral or written recommendation of their doctors and
these patients' caregivers.
The Legislature sought to clarify this initiative in 2003 with
SB 420 (Vasconcellos), Chapter 875, Statutes of 2003, the
MMPA. The MMPA offered a voluntary identification card which
patients and caregivers could obtain that would additionally
protect them from arrest. The MMPA also set limits on the
amounts of marijuana to be legally grown and possessed. The
California Supreme Court ruled in People v. Kelly (2010) 47
Cal.4th 1008, that the MMPA section limiting quantities of
marijuana is unconstitutional because it amends a voter
initiative.
Now, California patients who obtain a physician's oral or
written recommendation are protected from state prosecution
for possessing or cultivating an amount of marijuana
reasonably related to their current medical needs, as are
these patients' caregivers. Patients and caregivers who
obtain a state MMPA identification card from their county
health department are protected from arrest and prosecution
for possessing, transporting, delivering, or cultivating
marijuana. But, patients and caregivers who engage in these
activities remain liable for federal arrest and prosecution,
and those who operate dispensaries face frequent federal
enforcement actions. The U.S. Supreme Court ruled in Gonzales
v. Raich (2005) 545 U.S. 1, that the federal government can
enforce marijuana prohibition despite state medical-marijuana
laws. Thus, the CUA and the MMPA have no effect on federal
enforceability of the federal Controlled Substances Act.
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The California Supreme Court recently held that the medical
marijuana statutes do not preempt a local ban on facilities
that distribute medical marijuana. Municipalities can
prohibit such conduct as a public nuisance. (City of
Riverside v. Inland Empire Patient's Health & Wellness Center
(2013) 56 Cal.4th 729, 737.) The Court noted, "the CUA and
the MMP are careful and limited forays into the subject of
medical marijuana, aimed at striking a delicate balance in an
area that remains controversial, and involves sensitivity in
federal-state relations. We must take these laws as we find
them, and their purposes and provisions are modest. They
remove state-level criminal and civil sanctions from specified
medical marijuana activities, but they do not establish a
comprehensive state system of legalized medical marijuana; or
grant a 'right' of convenient access to marijuana for
medicinal use; or override the zoning, licensing, and police
powers of local jurisdictions; or mandate local accommodation
of medical marijuana cooperatives, collectives, or
dispensaries." (Id. at pp. 762-763.)
3)California Constitutional Limitations on Legislative
Regulation of Medical Marijuana :
Because the CUA was enacted by voter initiative, the Legislature
may not amend the statute without subsequent voter approval
unless the initiative permits such amendment, and then only
upon whatever conditions the voters attached to the
Legislature's amendatory powers. (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const.,
art. II, � 10, subd. (c).) 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, �
10, subd. (c).) Therefore, unless the initiative expressly
authorizes the Legislature to amend, only the voters may alter
statutes created by initiative. Proposition 215 is silent as
to the Legislature's authority to amend that proposition.
The purpose of California's constitutional limitation on the
Legislature's power to amend initiative statutes is to protect
the people's initiative powers by precluding the Legislature
from undoing what the people have done, without the
electorate's consent. Courts have a duty to jealously guard
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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. (Proposition 103
Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th
1473.) Yet, despite the strict bar on the Legislature's
authority to amend initiative statutes, judicial decisions
have recognized that the Legislature is not thereby precluded
from enacting laws addressing the general subject matter of an
initiative. The Legislature remains free to address a
"related but distinct area" or a matter that an initiative
measure "does not specifically authorize or prohibit." (People
v. Kelly, supra, 47 Cal. 4th 1008, 1025-1026.)
As noted above, the California Supreme Court has previously
ruled on the Legislature's ability to regulate the use of
medical marijuana because it was an initiative. In People v.
Kelly, supra, 47 Cal.4th 1008, the California Supreme Court
ruled that the Legislative restriction on the number of plants
a person may possess was unconstitutional as it interfered
with the rights established by the initiative. Although the
Legislature may be able to clarify or expand the rights
established in Proposition 215, it may not enact legislation
that interferes with the use of marijuana for medicinal
purposes. (Id. at 1044.)
But, as the Supreme Court recognized in City of Riverside v.
Inland Empire Patient's Health & Wellness Center, supra, 56
Cal.4th 729, the CUA and the MMPA are limited exceptions to
the state's criminal sanctions and nuisance laws. (Id. at pp.
739, 744-746.) The CUA and MMPA are silent on zoning,
licensing, and police powers of jurisdictions. (Id. at p.
762-763.)
This bill does not appear to place a greater burden on
patients than the CUA does. Patients and caregivers are
exempt from registration under the provision of this Act.
Rather, the bill imposes a regulatory and licensing structure
on commercial entities, which was deemed outside the scope of
the CUA and MMPA by the Supreme Court.
The one area of potential conflict with the CUA is the
provision requiring the Medical Board to prioritize the
prosecution of cases involving "repeated acts of excessively
recommending marijuana to a patient for medical purposes" by
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physicians. The CUA provides that "no physician may be
punished or denied any right or privilege under state law for
recommending medical marijuana to a patient." (Health & Saf.
Code, � 11362.5, subd. (c).) Depending on how this provision
is interpreted, it may arguably conflict with the CUA.
However, given that the bill contains a severability clause,
if this provision were deemed to conflict with the CUA, the
other provisions can still be given effect.
4)U.S. Department of Justice (DOJ) Guidance Regarding Marijuana
Enforcement : On August 29, 2013, the DOJ issued a memorandum
that updated its guidance to all U.S. Attorneys in light of
state ballot initiatives to legalize under state law the
possession of small amounts of marijuana and provide for the
regulation of marijuana production, processing, and sale.
While the memorandum noted that illegal distribution and sale
of marijuana is a serious crime that provides a significant
source of revenue to large-scale criminal enterprises, gangs,
and cartels, it also noted that DOJ is committed to using its
limited investigative and prosecutorial resources to address
the most significant threats, which include: preventing
distribution to minors; preventing revenue from marijuana from
going to criminal enterprises; preventing diversion to other
states where marijuana is not legal under state law;
preventing state-authorized marijuana from being a cover for
trafficking in other illegal drugs or illegal activity;
preventing violence in cultivating and distributing marijuana;
preventing drugged driving and other public health problems
from marijuana use; and, preventing growing, possessing or
using marijuana on public lands or on federal property.
According to the USDOJ, "In jurisdictions that have enacted laws
legalizing marijuana in some form and that have also
implemented strong and effective regulatory and enforcement
systems to control the cultivation, distribution, sale, and
possession of marijuana, conduct in compliance with those laws
and regulations is less likely to threaten the federal
priorities set forth above? In those circumstances, consistent
with the traditional allocation of federal-state efforts in
this area, enforcement of state law by state and local law
enforcement and regulatory bodies should remain the primary
means of addressing marijuana-related activity." (See U.S.
Department of Justice Memorandum for all United States
Attorneys regarding Guidance Regarding Marijuana Enforcement,
James M. Cole, August 29, 2013.)
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5)Arguments in Support :
a) The California Police Chiefs Association , a co-sponsor
of this bill, states, "Among the most troublesome issues
with Proposition 215 includes the ability of virtually
anyone to obtain a medical marijuana recommendation from a
compliant doctor; unreliable quality control for consumers
with respect to potency and the presence of carcinogenic
pesticides or other contaminants, as well as retain outlets
that often become magnets for criminal activity.
"Senate Bill 1262 establishes an improved regulatory
structure to ensure that Prop. 215 works as originally
envisioned to assist patients with legitimate medical
needs, in a manner that works for law enforcement, city and
county governments, local community organizations, and
medical professionals.
"As police chiefs we believe it is time to address the flaws
associated with the implementation of Proposition 215 in a
responsible, realistic, and health-based fashion while also
protecting the needs of legitimate medical patients."
b) According to the League of Cities , the other co-sponsor
of this bill, "This legislation, in contrast to nearly all
previous attempts, acknowledges local regulatory authority
by establishing a state licensing scheme that defers to
local land use powers; under SB 1262, it will not be
possible for a prospective operator to obtain a state
license to operate a dispensary or other facility until and
unless that operator can produce evidence of local
permitting approval. This protects both the jurisdictions
that have enacted bans on such facilities, as well as those
that have elected to allow and actively regulate them.
"SB 1262 squarely addresses the many public safety concerns
that arise with a marijuana regulatory scheme by requiring
minimum security requirements that must be observed at all
dispensaries, as well as transport and inventorying
procedures to minimize the possibility of diversion of
marijuana for non-medical/recreational uses which could
stimulate cartel activity. As proposed to be amended, it
further requires a doctor-patient relationship in
association with medical marijuana recommendations - a
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standard that has been adopted by statute in all other
states that have legalized marijuana for medical purposes.
Finally, SB 1262 addresses the significant public health
concerns triggered by medical marijuana, by requiring for
the first time the development of uniform testing standards
to identify and eliminate contaminants and toxins injurious
to human health."
6)Argument in Opposition : The Drug Policy Alliance writes, "We
are supportive of establishing a state level program to
regulate medical marijuana in California, and we applaud the
League of Cities and Police Chiefs for recognizing the need
for licensing at the state level. However, we have concerns
over several provisions in this bill, particularly the lack of
state level regulation and enforcement that we fear will deny
safe access for countless patients in California, especially
those who are low income by continuing to over burden
localities with the job of regulation development and
enforcement, and fail to create the consistency in rules and
regulation across the state that is so sorely needed.
"While the recent mock-up makes significant improvement over
prior versions of SB 1262, we have significant concerns with
the recent mock-up. ?
"The recent mock-up would deny licenses to persons with prior
felony drug convictions, denying opportunities for legal,
gainful employment by including the language, "The bureau
shall deny a license based on a past felony criminal
conviction for drug trafficking, a felony conviction for
embezzlement, a felony conviction involving fraud or deceit,
and any violent or serious felony conviction pursuant to
subdivision (c) of Section 667.5, or subdivision (c) of
Section 1192.7 of the penal code. The bureau may also deny a
license based on a past criminal conviction if the crime was
substantially related to the qualifications, functions, or
duties of the business for which the license will be issued.
This is a concern because there are those in the medical
marijuana field who have previous convictions related to
marijuana activity, was deemed illicit at the time.
Furthermore, poor people of color are more likely to receive
arrests and convictions for drug related offenses, so this
would create a bias towards who can apply for a license, and
we believe this section should be deleted. This is a pattern
of lifetime disenfranchisement and lifetime punishment that
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Drug Policy Alliance and other experts agree is cruel, unjust
and contributes to more crime, not less. The mock-up of
amendments that was provided by Senator Correa's office on
June 10th included this language, which we believe a fairer
standard for denial of a license: The applicant, or any of its
officers, directors, owners, members or shareholders has been
convicted in the previous five years of a violent felony, as
specified in subdivision (c) of Section 667.5 of the Penal
Code, a serious felony as specified in subdivision (c) of
Section 1192.7 of the Penal Code, a felony offense involving
fraud or deceit, or any other felony that, in the department's
estimation, would impair the applicant's ability to
appropriately discharge the responsibilities of a licensee.
"Furthermore, the recent mock-up provides that a provisional
license would be denied to anyone with a "against whom there
are pending federal?. administrative or judicial proceedings
or actions." DPA does not oppose denial of license for
pending state or local actions, but many ethical providers in
the state today, who are in compliance with local ordinances,
have been subject to federal harassment. ?
"The recent mock-up creates several grounds for denial of
provisional or "standard" licenses, but no ground for appeal
of denial, stating that, "The department shall make
recommendations to the Legislature pertaining to the
establishment of an appeals and judicial review process for
persons aggrieved by a final decision of the department." We
believe that an appeals process should be stated in the
legislation. In addition, the recent mock-up establishes
aggressive fining structures, but no due process before fines
are imposed, or a means for appeal.
"The bill as amended calls for an $8000 application fee. This is
prohibitive to smaller businesses and individuals wishing to
start a business and will encourage non-compliance. We
recommend scaling application fees to the size of the
operation. Furthermore, there needs to be greater clarity,
differentiating an application fee, a provisional licensing
fee, and a standard licensing fee. The cost to apply should be
much lower than the fee for a one-year or two-year license to
operate.
"The bill as amended states that, "The bureau shall deny an
application for a license if issuance of that license would
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tend to create a law enforcement problem, or if issuance would
result in or add to an undue concentration of licenses." This
language is unclear, and the accompanying language is
problematic for several reasons. First, a significant body of
research demonstrates that there is no relationship between
medical cannabis businesses and crime in a community. There is
even evidence that a well-lit, secure, and active facility can
improve the safety and livability of a neighborhood. Secondly,
many localities have already established zoning ordinances for
medical cannabis businesses which relegate them to industrial
areas with higher crime rates, and the census tracts described
are low-income neighborhoods. The inclusion of this amendment
could wipe out access to medical cannabis in communities
already plagued with lack of access to health care and
economic opportunity.
"Finally, the recent mock-up would ban licenses where "the ratio
of licenses to population in the census tract or census
division in which the applicant premises are located exceeds
the ratio of licenses of population in the county in which the
applicant premises are located." It appears that a city like
Sacramento, Oakland, or Los Angeles would not be able to
license programs, unless it mathematically balances with the
number of licensed entities in the counties of Sacramento,
Alameda or Los Angeles. It appears unworkable, or at least
open to numerous interpretations by county council and city
attorneys."
7)Related Legislation :
a) AB 1894 (Ammiano) of 2014 would have enacted the Medical
Cannabis Regulation and Control Act to license and regulate
the cultivation, manufacture, testing, transportation,
storage, distribution, and sale of medical cannabis, and
would create the Division of Medical Cannabis Regulation
and Enforcement within the Department of Alcoholic Beverage
Control. This bill failed passage on the Assembly Floor.
b) SB 1193 (Pavley) of 2014 reduces the amount of growing
or harvested marijuana that has been seized by a law
enforcement agency that must be retained for evidence from
at least 10 pounds to at least two pounds. SB 1193 will be
heard in this Committee today.
8)Prior Legislation :
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a) AB 473 (Ammiano) of the current legislative session
would have created the Division of Medical Marijuana
Regulation and Enforcement in order to regulate the
cultivation, manufacture, testing, transportation,
distribution, and sale of medical marijuana. AB 473 failed
passage on the Assembly floor.
b) AB 604 (Ammiano) of the current legislative session, was
gutted and amended from a different subject matter and
would have enacted the Medical Cannabis Regulation and
Control Act. AB 604 was never heard by the Senate Public
Safety Committee.
c) AB 2312 (Ammiano), of the 2011-12 Legislative Session,
would have established the Medical Marijuana Regulation and
Control Act, authorizing local taxes on medical cannabis
and creating a board to regulate the medical cannabis
industry. AB 2312 was never heard by the Senate Committee
on Business, Professions and Economic Development.
d) AB 1300 (Blumenfield), Chapter 196, Statutes of 2011,
provides that a local government entity may enact an
ordinance regulating the location, operation or
establishment of a medical marijuana cooperative or
collective; authorizes local government entity to enforce
such ordinances through civil or criminal remedies and
actions; and authorizes a local government entity to enact
any ordinance that is consistent with the Medical Marijuana
Program. AB 1300 did not directly regulate medical
marijuana facilities.
e) SB 626 (Calderon), of the 2011-12 Legislative Session,
would have required the Board of Equalization (BOE) to
establish a nine-member task force to conduct a study to
determine ways to enhance collections of sales and use
taxes on retail sales of marijuana and ensure proper
regulation of the cultivation, transportation, and
distribution of marijuana and marijuana products. SB 626
was held on the Senate Appropriations Committee's Suspense
File.
f) AB 390 (Ammiano), of the 2009-10 Legislative Session,
would have legalized the possession, sale, cultivation and
other conduct relating to marijuana and required Alcoholic
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Beverage Control (ABC) to administer and enforce the terms
of legalized marijuana. AB 390 passed this Committee and
was never heard by the Assembly Committee on Health.
g) SB 1098 (Migden), of the 2007-08 Legislative Session,
would have required the State Board of Equalization to
administer a tax amnesty program, as specified, for medical
marijuana dispensaries, as defined. SB 1098 was never
voted on by the Senate Revenue and Taxation Committee.
h) SB 420 (Vasconcellos) Chapter 875, Statutes of 2003,
established the Medical Marijuana Program Act, a statewide,
voluntary program for the issuance of identification cards
to identify persons authorized to engage in the medical use
of marijuana under the Compassionate Use Act.
i) Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
cannabis by a patient or a patient's primary caregiver with
a physician's written or oral recommendation.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association (Co-Sponsor)
League of Cities (Co-Sponsor)
Americans for Safe Access
Association of Orange County Deputy Sheriffs
City of Beaumont
City of Camarillo
City of Concord
City of Del Mar
City of El Cajon
City of Glendora
City of La Mirada
City of Palmdale
City of Rancho Cucamonga
City of Rosemead
City of Sacramento
Opposition
Cannabis Action California Education Foundation
Drug Policy Alliance
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Emerald Growers Association
Marijuana Policy Project
Mendocino County Small Farmers' Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744