HomeMy WebLinkAboutMINUTES - 12152015 - D.6RECOMMENDATION(S):
A. ACCEPT presentation by Jolena Voorhis, Executive Director of the Urban Counties Caucus, on the California
Medical Marijuana Regulation and Safety Act (MMRSA) and the potential for an initiative to be placed on the
November 2016 state-wide ballot related to recreational use of marijuana.
B. DIRECT the Department of Conservation and Development, in consultation with County Counsel, to take either of
the following actions with regard to medical marijuana regulation:
1. PREPARE and present to the Board an interim urgency ordinance prohibiting the cultivation and delivery of
medical marijuana in unincorporated areas of Contra Costa County. Adoption of an interim ordinance by the
Board would provide staff the time to analyze and provide a future report to the Board on the following
long-term options in response to the MMRSA:
a. Potential adoption of a permanent land use ordinance that would prohibit the cultivation and/or
delivery of medical marijuana throughout the unincorporated areas of the County; or
b. Potential adoption of a permanent land use ordinance to establish County requirements that would
apply to any or all of the following commercial medical marijuana activities: cultivation, delivery,
dispensing, manufacturing, distribution, and/or transport of medical marijuana; or
c. The option of adopting no new regulations in response to the MMRSA.; OR
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 12/15/2015 APPROVED AS RECOMMENDED OTHER
Clerks Notes:See Clerk's Addendum
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Ruben Hernandez,
925-674-7785
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: December 15, 2015
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
D.6
To:Board of Supervisors
From:John Kopchik, Director, Conservation & Development Department
Date:December 15, 2015
Contra
Costa
County
Subject:California Medical Marijuana Regulation and Safety Act (MMRSA) Update
RECOMMENDATION(S): (CONT'D)
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2. TAKE NO ACTION in response to the MMRSA. The result of taking no action would be the following:
a. Beginning March 1, 2016, the State would be the sole entity authorized to license the cultivation of
medical marijuana in the unincorporated areas of the County.
b. Mobile deliveries of medical marijuana would be allowed in the unincorporated areas of the
County.
c. Medical marijuana dispensaries, which are currently prohibited under the County Ordinance Code,
would continue to be prohibited in the unincorporated areas of the County.
d. The manufacturing, distribution, and transport of medical marijuana would not be authorized in the
unincorporated areas of the County.
FISCAL IMPACT:
No long term fiscal impact if the Board wishes to strengthen the ordinance and prohibit the cultivation and
delivery of medical marijuana. The cost of preparing an urgency ordinance is expected to be around $5,000. The
cost of preparing the ordinance depending of the complexity of the proposed permanent ordinance, it is estimated
to be $20,000 to $30,000. If the Board of Supervisors decides to adopt an ordinance to license the cultivation of
medical marijuana, under SB 643, the County could levy fees and taxes for the cultivation of medical marijuana,
resulting in potential additional revenue source for the County General Fund.
BACKGROUND:
Existing State Medical Marijuana Laws and County Ordinance
Ms. Jolena Voorhis, Executive Director of the Urban Counties Caucus, will be making a presentation to the Board
on the California Medical Marijuana Regulation and Safety Act (MMRSA) and the potential for an initiative to be
placed on the November 2016 state-wide ballot related to recreational use of marijuana. A copy of her slides is
attached. The remainder of this Board order pertains only to the potential regulation of medical marijuana in the
unincorporated areas of the County. It does not discuss the issue of recreational marijuana, which, as of this date,
is still illegal in California.
In 1996, voters approved Proposition 215, the Compassionate Use Act. The purpose of the Compassionate Use
Act is to enable persons who are in need of marijuana for specified medical purposes to obtain and use marijuana
under limited circumstances. The Compassionate Use Act (Health and Safety Code (HSC) § 11362.5) established
a limited defense for qualified patients and their primary caregivers to the crimes of possessing or cultivating
marijuana. A “qualified patient” is a person 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 § 11362.5(d).)
A “primary caregiver” is the individual designated by a qualified patient who has consistently assumed
responsibility for the housing, health, or safety of that qualified patient. (HSC § 11362.5(e).) A primary caregiver
is authorized to possess or cultivate marijuana for the personal medical purposes of a qualified patient upon the
written or oral recommendation or approval of a physician. (HSC § 11362.5(d).)
In 2003, the Legislature enacted the Medical Marijuana Program. (HSC §§ 11362.7-11362.83.) The Medical
Marijuana Program established regulations and procedures regarding the issuance of identification cards to
patients qualified to use medical marijuana. The Medical Marijuana Program also established a defense to
criminal liability for the collective or cooperative cultivation of marijuana. (HSC § 11362.775.) Medical
marijuana dispensaries began opening throughout the state as medical marijuana collectives under the
Compassionate Use Act and the Medical Marijuana Program.
In 2006, the Board of Supervisors adopted an urgency interim ordinance prohibiting the establishment of medical
marijuana dispensaries in the unincorporated area of Contra Costa County. The urgency ordinance was adopted to
give staff and the County’s Medical Marijuana Task Force time to study and make recommendations regarding
the regulation of medical marijuana dispensaries. The interim ordinance was renewed twice in 2006 as the issue
continued to be studied.
In 2008, the Board of Supervisors adopted Ordinance No. 2008-05 to prohibit the establishment of medical
marijuana dispensaries in the unincorporated area of Contra Costa County. The ordinance added section 82-4.292
to the Ordinance Code to define a “medical marijuana dispensary” as follows:
“Medical marijuana dispensary” means any facility or location, stationary or mobile, where marijuana is made
available, sold, transmitted, given, distributed to, or otherwise provided by or to a primary caregiver, qualified
patient, or a person with an identification card, in accordance with the state Compassionate Use Act of 1996
(Health and Safety Code section 11362.5). A “medical marijuana dispensary” does not include the following uses,
as long as their location is otherwise regulated by this code or applicable law and as long as their use complies
strictly with applicable law including but not limited to Health and Safety Code section 11362.5: a clinic licensed
pursuant to Chapter 1 of Division 2 of the Health and Safety Code; a health care facility licensed pursuant to
Chapter 2 of Division 2 of the Health and Safety Code; a residential care facility for persons with chronic
life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; a
residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety
Code; a residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health
and Safety Code.
The ordinance also added section 82-2.022 to the Ordinance Code. Section 82-2.022 states:
The following land uses are prohibited at all locations in all zoning districts in the County:
(a) Any use that violates state or federal law.
(b) Medical marijuana dispensary.
Since 2008, Department of Conservation and Development staff has interpreted subsection (a) of section
82-2.022 to completely prohibit land uses associated with medical marijuana, including cultivation. Under
the federal Controlled Substances Act, it is illegal to manufacture, distribute, dispense, or possess any
controlled substance, including marijuana. However, in 2014 Congress barred the use of federal funds to
prevent states from implementing medical marijuana laws. Section 538 of the Consolidated and Further
Continuing Appropriations Act of 2015 prohibits the federal Department of Justice from expending funds in
connection with the enforcement of any law that prevents California and several other states “from
implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical
marijuana.” With the recent adoption of MMRSA, continued reliance on subsection (a) of section 82-2.022
to prohibit cultivation of medical marijuana may not have the same effect as it did in 2008.
Medical Marijuana Regulation and Safety Act
The Medical Marijuana Regulation and Safety Act (MMRSA) was approved by the Governor and filed
with the Secretary of State on October 9, 2015. The MMRSA consisted of three bills: AB 243, AB 266, and
SB 643. The purpose of the MMRSA is to regulate the cultivation, dispensing, manufacturing, distribution,
and transportation of medical marijuana. Under the MMRSA, to conduct any of these activities, a person or
business needs a license from the state. A person or business will also need a local permit to conduct any of
these activities, since the MMRSA expressly allows counties and cities to regulate these activities. A county
or city may establish a permitting program to allow any or all of these activities. A county or city may also
prohibit the cultivation and/or deliveries of medical marijuana, and may effectively prohibit other
commercial medical marijuana activities by not establishing a permitting program for those activities.
Cultivation (AB 243)
AB 243 established a regulatory and licensing structure for indoor and outdoor cultivation sites.
“Cultivation” means “any activity involving the planting, growing, harvesting, drying, curing, grading, or
trimming of cannabis.” (Business and Professions Code (BPC) § 19300.5(l).) AB 243 placed the California
Department of Food and Agriculture in charge of licensing and regulating cultivation sites, and created a
Medical Cannabis Cultivation Program within the department.
AB 243 established standards for determining when persons and businesses need to obtain a State license to
cultivate marijuana. AB 243 established 10 different types of cultivation licenses, which will be issued
depending on the size, type, and location of medical marijuana cultivation. (BPC § 19300.7.) AB 243 also
established two exemptions from the cultivation license requirement for qualified patients and primary
caregivers that meet certain requirements.
Qualified Patient Exemption. A qualified patient who cultivates marijuana is not required to obtain
a State license if the area he or she uses to cultivate marijuana does not exceed 100 square feet and if
he or she cultivates marijuana for his or her personal medical use and does not sell, distribute,
donate, or provide marijuana to any other person or entity. (HSC § 11362.777(g).)
Primary Caregiver Exemption. A primary caregiver who cultivates marijuana is not required to
obtain a State license if the area he or she uses to cultivate marijuana does not exceed 500 square feet
and if he or she cultivates marijuana exclusively for the personal medical use of no more than five
specified qualified patients, and receives no remuneration other than reasonable costs and expenses.
(HSC § 11362.777(g).)
Commercial Medical Marijuana Activities (AB 266 and SB 643)
AB 266 and SB 643 established regulations for commercial medical marijuana activities.
“Commercial cannabis activity” includes the cultivation, possession, manufacture, processing,
storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a
medical cannabis product. Commercial cannabis activity does not include activity by qualified
patients who only use the medical cannabis for personal medical use and by primary caregivers that
do not receive remuneration other than for reasonable costs and expenses and do not provide medical
cannabis to more than five qualified patients. (BPC § 19319.)
State licenses are expected to be issued starting January 1, 2018. Any facility operating in compliance
with local zoning ordinances and other state and local requirements may continue its operations until
its application for a State license is approved or denied. (BPC § 19321(c).)
Differences between commercial medical marijuana activities
The MMRSA distinguishes among the delivery, dispensing, distribution, and transport of medical
marijuana:
Dispensing. “Dispensing” means “any activity involving the retail sale of medical cannabis or
medical cannabis products from a dispensary.” (BPC § 19300.5(o).) “Dispensary” means “a facility
where medical cannabis, medical cannabis products, or devices for the use of medical cannabis or
medical cannabis products are offered, either individually or in any combination, for retail sale,
including an establishment that delivers, pursuant to express authorization by local ordinance,
medical cannabis and medical cannabis products as part of a retail sale.” (BPC § 19300.5(n).)
Delivery. “Delivery” means the commercial transfer of medical cannabis or products from a
dispensary to a primary caregiver or qualified patient, or a testing laboratory. (BPC § 19340 (m).)
Distribution. “Distribution” means “the procurement, sale, and transport of medical cannabis and
medical cannabis products” between entities that have a State license. (BPC § 19340 (p).)
Transport. “Transport” means “the transfer of medical cannabis or medical cannabis products from
the permitted business location of one licensee to the permitted business location of another
licensee,” for the purposes of conducting commercial cannabis activity. (BPC § 19340 (am).)
County Regulation of Commercial Medical Marijuana Activities
The MMRSA affirmed the authority of counties and cities to regulate the commercial medical
marijuana activities described above through the adoption of land use ordinances.
Local Regulation of Cultivation. The County may regulate or ban the cultivation of medical
marijuana. If the County does not ban cultivation or establish cultivation regulations by March 1,
2016, the State will be the sole licensing authority for medical marijuana cultivation applicants in the
unincorporated area of the County. (H&S 11372.777(c)(4).)
Local Regulation of Mobile Deliveries. Deliveries by dispensaries are permitted with a State license
unless a city or county explicitly prohibits delivery of “medical marijuana” and “medical cannabis
products.” (BPC §§ 19340(a), 19340(b)(1).) However, even if a local jurisdiction prohibits deliveries
within its boundaries, the jurisdiction may not take any action to prevent a person with a State license
from carrying medical marijuana on public roads located in the jurisdiction. (BPC § 19340(f).)
Local Regulation of Other Commercial Activities . Under the MMRSA, in order to obtain a State
license for dispensing, distribution, transport, or manufacturing activities, a person must also have a
local license. If there is no local license or permit, or ordinance providing for such, then a marijuana
business may not obtain a State license, and may not operate a business performing commercial
cannabis activity. (BPC § 19320(a).)
Taxes and Fees
Under AB 266, the County retains the power to assess taxes (with voter approval) and fees on
facilities that are licensed to engage in commercial cannabis activity and the business activities of the
licensees. (BPC § 19320 (d).) SB 643 further recognizes local authority to charge fees and to levy
taxes on the privilege of cultivating, dispensing, producing, processing, preparing, storing, providing,
donating, selling, or distributing medical cannabis or medical cannabis products by a licensee. (BPC
§ 19348.)
Options
As stated in the recommendation section above, the Board may wish to consider the following
options for responding to the MMRSA.
Option 1. Option 1 is to prepare an interim urgency ordinance prohibiting the cultivation and
delivery of medical marijuana. An urgency ordinance becomes effective immediately upon adoption.
This would provide staff the time to analyze and provide a future report to the Board on the following
long-term options in response to the MMRSA:
a. Potential adoption of a permanent land use ordinance that would prohibit the cultivation
and/or mobile delivery of medical marijuana throughout the unincorporated areas of the
County.
b. Potential adoption of a permanent land use ordinance to establish County requirements that
would apply to any or all of the following commercial medical marijuana activities:
cultivation, mobile deliveries, dispensing, manufacturing, distribution, and/or transport of
medical marijuana.
c. The option of adopting no new regulations in response to the MMRSA.
If the Board adopts an interim ordinance, it would be effective for 45 days from the date of
adoption under Government Code section 65858. To adopt an interim ordinance, the Board
must make findings that there is a current and immediate threat to the public health, safety, or
welfare, and that the approval of permits or other entitlements would result in that threat to the
public health, safety, or welfare. The Board may extend the interim ordinance for 10 months
and 15 days after a noticed public hearing, and may extend it a second time for one year after
notice and a hearing. No more than two extensions may be adopted. Adoption of the ordinance
and any extensions requires a four-fifths vote. In addition, ten days before the ordinance
expires, and before any extension expires, the Board must issue a written report describing the
measures taken to alleviate the conditions that led to the adoption of the ordinance.
Option 2. Option 2 is to take no action in response to the MMRSA. The result of taking no
action would be the following:
a. Beginning March 1, 2016, the State would be the sole entity authorized to license the
cultivation of medical marijuana in the unincorporated areas of the County.
b. Delivery of medical marijuana from dispensaries to patients or laboratories would be
allowed in the unincorporated areas of the County.
c. Medical marijuana dispensaries, which are currently prohibited under the County
Ordinance Code, would continue to be prohibited in the unincorporated areas of the
County.
d. The manufacturing of medical marijuana products and the distribution and transport
of medical marijuana would not be authorized in the unincorporated areas of the County.
By not establishing a permitting program for these activities, the County would
effectively be prohibiting these activities.
CONSEQUENCE OF NEGATIVE ACTION:
If no action is taken by the Board, the following may occur: 1) the County would forego its ability to be a
licensing agent for the cultivation of medial marijuana if an ordinance providing for the licensing of marijuana
cultivation is not adopted by March 1, 2016; 2) marijuana dispensaries would remain prohibited; 3). marijuana
cultivation might become activities permitted and licensed by the State.
CLERK'S ADDENDUM
Speakers: Patty Hoyt, San Ramon Valley Alcohol Policy Coalition; Ralph Hoffman, resident of Walnut Creek;
Douglas Dunn, resident of Antioch. Adoption of an interim ordinance by the Board would provide staff the
time to analyze and provide a future report to the Board on the long-term options in response to the MMRSA.
The Board indicated a preference to begin with the most restrictive policy possible, that could be amended at a
later date if desired. ACCEPTED the presentation; DIRECTED the Department of Conservation and
Development, in consultation with County Counsel, to prepare and present to the Board an interim urgency
ordinance prohibiting the cultivation and delivery of medical marijuana in unincorporated areas of Contra
Costa County.
ATTACHMENTS
MMRSA Webinar
Medical Marijuana Legislation Briefing_Urban Counties Caucus
Text of AB 243
Text of AB 266
Text of SB 643
Informational Webinar:
Medical Marijuana Regulation and Safety Act
This is the first of at least two webinars designed to educate our members on the three bills comprising the Medical Marijuana Regulation and Safety Act (MMRSA). Its goals are to:
Explain how this legislation protects local control;
Review the details of what each bill does;
Highlight specific regulatory issues that require immediate attention from local governments;
Discuss timelines for implementation
Field your questions
Note: Some of the provisions of the new laws discussed in this webinar are not included in the Medical
Marijuana Regulation and Safety Act.
Medical Marijuana Regulation and Safety Act
Presenters:
Tim Cromartie, Legislative Representative,
League of California Cities
Lauren Michaels, Legislative Affairs Manager,
California Police Chiefs Association
Steve McEwen, Attorney at Law; Partner with
Burke, Williams & Sorensen, LLP
Medical Marijuana Regulation and Safety Act
Medical Marijuana: Schedule of Events
Webinar Dates :
Tuesday, October 20
Thursday, November 12
Informational Briefings
San Leandro - Monday, November 9
Eureka – Monday, November 16
Sacramento – Wednesday, January 13
Pasadena – Thursday, January 14
Riverside - Friday, January 15
Fresno - Monday, January 25
San Luis Obispo - Thursday, January 28
San Diego - Tuesday, February 9
Medical Marijuana Regulation and Safety Act
The Medical Marijuana Regulation and Safety Act consists of
three discrete pieces of legislation:
AB 266 (Bonta, Cooley, Jones-Sawyer, Lackey, Wood) –
Establishes dual licensing structure requiring state license and a local
license or permit. Department of Consumer Affairs heads overall
regulatory structure imposing health and safety and testing standards.
AB 243 (Wood)– Establishes a regulatory and licensing structure for
cultivation sites under the Department of Food and Agriculture.
SB 643 (McGuire) - Establishes criteria for licensing of medical
marijuana businesses, regulates physicians, and recognizes local
authority to levy taxes and fees.
Medical Marijuana Regulation and Safety Act
This legislation protects local control in the following ways:
Dual licensing: A requirement in statute that all marijuana businesses must have both a state license, and a local license or permit, to operate legally in California. Jurisdictions that regulate or ban medical marijuana will be able to retain their regulations or ban.
Effect of Local Revocation of a Permit or License: Revocation of a local license or permit terminates the ability of a marijuana business to operate in that jurisdiction under its state license.
Enforcement: Local governments may enforce state law in addition to local ordinances, if they request that authority and if it is granted by the relevant state agency.
State law penalties for unauthorized activity: Provides for civil penalties for unlicensed activity, and applicable criminal penalties under existing law will continue to apply.
Expressly protects local licensing practices, zoning ordinances, and local actions taken under the constitutional police power.
Key State Medical Marijuana Laws Following
AB 243, AB 266, and SB 643
•Medical Marijuana Regulation and Safety Act (Business and Profession
Code section 19300 through 19360). Governs the licensing and control of
all medical marijuana businesses in the state and provides criminal
immunity for licensees.
•Compassionate Use Act of 1996 (Health and Safety Code section 11362.5).
Provides criminal immunity for patients and primary caregivers for
possession and cultivation of marijuana if a doctor has recommended the
marijuana for medical use.
•Medical Marijuana Program (Health and Safety Code section 11362.7
through 11362.9). Establishes voluntary program for identification cards
for qualified patients and primary caregivers and provides criminal
immunity to qualified patients and primary caregivers for certain
activities involving medical marijuana.
Medical Marijuana Regulation and Safety Act
Two areas will require immediate attention from local
governments:
Deliveries and mobile dispensaries: Jurisdictions that currently ban,
or that may wish to ban, deliveries or mobile dispensaries should be
aware that under AB 266, they will need to have an ordinance in place
that affirmatively identifies and prohibits this activity.
Cultivation ordinances: AB 243 contains a provision stating that cities
that do not have an ordinance regulating or prohibiting cultivation by
March 1, 2016 will lose the authority to regulate or ban cultivation within
their city limits. The state will become the sole licensing authority. The
author has agreed to fix this via clean-up legislation, but to be safe, cities
are advised to enact emergency ordinances by the end of February to
protect themselves.
Medical Marijuana Regulation and Safety Act
AB 266 Medical Marijuana – what the bill does:
Establishes a statewide regulatory scheme with the Bureau of Medical Marijuana Regulation (BMMR) within the Department of Consumer Affairs (DCA) at its head.
Provides for dual licensing: both a state license, and a local permit or license, issued according to local ordinances, are required.
Caps total cultivation for a single licensee at 4 acres statewide, subject to local ordinances.
Creates four licensing categories: Dispensary, Distributor, Transport, and Special Dispensary Status for licensees who have a maximum of three dispensaries. Specifies various sub-categories of licensees (indoor cultivation, outdoor cultivation, etc.)
Limits cross-licensing: Operators may hold one state license in up to two separate license categories. Prohibits medical marijuana licensees from also holding licenses to sell alcohol.
Medical Marijuana Regulation and Safety Act
AB 266 Medical Marijuana – what the bill does:
Grandfathers in vertically integrated businesses (i.e. businesses that operate and control their own cultivation, manufacturing, and dispensing operations) if a local ordinance allowed or required such a business model and it was enacted on or before July 1, 2015. Requires businesses to operate in compliance with local ordinances, and to have been engaged in all the specified activities on July 1, 2015.
Requires establishment of uniform state minimum health and safety standards, testing standards, and security requirements at dispensaries and during transport of the product. Product testing is mandatory.
Specifies a standard for certification of testing labs, and specified minimum testing requirements. Prohibits testing lab operators from being licensees in any other category, and from holding a financial or ownership interest in any other category of licensed business.
Medical Marijuana Regulation and Safety Act
AB 266 Medical Marijuana – what the bill does:
Labor Peace: Includes a labor peace agreement under which unions agree
not to engage in strikes, work stoppages, etc. and employers agree to
provide unions reasonable access to employees for the purpose of
organizing them. Specifies that such an agreement does not mandate a
particular method of election.
Specifies that patients and primary caregivers are exempt from the state
licensing requirement, and provides that their information is not to be
disclosed and is confidential under the California Public Records Act.
Phases out the existing model of marijuana cooperatives and collectives
one year after DCA announces that state licensing has begun.
Medical Marijuana Regulation and Safety Act
AB 243 Medical Marijuana – what the bill does:
Places the Dept. of Food and Agriculture (DFA) in charge of licensing and regulation of indoor and outdoor cultivation sites.
Mandates the Dept. of Pesticide Regulation (DPR) to develop standards for pesticides in marijuana cultivation, and maximum tolerances for pesticides and other foreign object residue.
Mandates the Dept. of Public Health to develop standards for production and labelling of all edible medical cannabis products.
Assign joint responsibility to DFA, Dept. of Fish and Wildlife, and the State Water Resources Control Board (SWRCB) to prevent illegal water diversion associated with marijuana cultivation from adversely affecting California fish population.
Medical Marijuana Regulation and Safety Act
AB 243 Medical Marijuana – what the bill does:
Specifies that DPR, in consultation with SWRCB, is to develop
regulations for application of pesticides in all cultivation.
Specifies various types of cultivation licenses.
Directs the multi-agency task force headed by the Dept. of Fish and
Wildlife and the SWRCB to expand its existing enforcement efforts to a
statewide level to reduce adverse impacts of marijuana cultivation,
including environmental impacts such as illegal discharge into waterways
and poisoning of marine life and habitats.
Medical Marijuana Regulation and Safety Act
SB 643 Medical Marijuana – what the bill does:
Directs California Medical Board to prioritize investigation
of excessive recommendations by physicians;
Imposes fines ($5000.00) vs. physicians for violating
prohibition against having a financial interest in a marijuana
business;
Recommendation for cannabis without a prior examination
constitutes unprofessional conduct;
Imposes restrictions on advertising for physician
recommendations;
Medical Marijuana Regulation and Safety Act
SB 643 Medical Marijuana – what the bill does:
Places Dept. of Food and Agriculture in charge of cultivation regulations and licensing, and requires a track and trace program;
Codifies dual licensing (state license and local license or permit), and itemizes disqualifying felonies for state licensure;
Places DPR in charge of pesticide regulation; DPH in charge of production and labelling of edibles;
Upholds local power to levy fees and taxes.
Medical Marijuana Regulation and Safety Act
Delivery of Medical Marijuana (AB 266)
“Delivery” means the commercial transfer or medical cannabis or medical
cannabis products from a dispensary, up to an amount determined by the
bureau to a primary caregiver or qualified patient as defined in Section
11362.7 of the Health & Safety Code, or a testing laboratory.
“Delivery” also includes the use by a dispensary or any technology
platform owned and controlled by the dispensary or independently
licensed under this chapter that enables qualified patients or primary
caregivers to arrange for or facilitate the commercial transfer by a
licensed dispensary of medical cannabis or medical cannabis products.
(Business & Professions Code 19300.5(m))
Medical Marijuana Regulation and Safety Act
Delivery of Medical Marijuana (AB 266)
“Deliveries” can only be made by a dispensary and in a city, county, or city and county that does not explicitly prohibit it by local ordinance. Business & Professions Code 19340(a). See also Section 19340(b)(1).
Therefore, if your city wishes to prohibit delivery of medical marijuana within your city, an ordinance must be adopted to explicitly prohibit deliveries.
Timing: State licenses are expected to be issued starting January 1, 2018. A facility or entity that is operating in compliance with local zoning ordinances and other state and local requirements may continue its operations until its application for licensure is approved or denied effective January 1, 2018 (Business & Professions 19321(c)).
Ordinance explicitly prohibiting deliveries should include (1) an amendment to the zoning code prohibiting “delivery” (as defined in AB 266) in any zoning district; or (2) an amendment to the Municipal Code relating to business operations prohibiting “delivery” of ‘medical marijuana” and “medical cannabis products” (as defined in AB 266) as a business within the city.
Medical Marijuana Regulation and Safety Act
Cultivation (AB 243)
AB 243 (Wood) prohibits cultivation of medical marijuana without
first obtaining both a local license/permit/other entitlement for use
and a state license. A person may not apply for a state license without
first receiving a local license/permit/other entitlement for use.
A person may not submit an application for a state license if
proposed cultivation will violate provisions of local ordinance or
regulation or if medical marijuana is prohibited by city, county, or city
and county either expressly or otherwise under principles of
permissive zoning (Health & Safety 11372.777(b)).
Medical Marijuana Regulation and Safety Act
Cultivation (AB 243)
However…If a city, county, or city and county does not have land use
regulations or ordinances regulating or prohibiting the cultivation of
marijuana, either expressly or otherwise under the principles or
permissive zoning, or chooses not to administer a conditional permit
program pursuant to this section, then commencing March 1, 2016, the
state is the sole licensing authority for medical marijuana cultivation
applicants (Health & Safety 11372.777(c)(4)).
Under a “permissive” zoning code, “any use not enumerated in the code
is presumptively prohibited.” City of Corona v. Naulis (2008) 166
Cal.App.4th 418, 425 cited in County of Sonoma v. Superior Court (2010)
190 Cal.App.4th 1312, FN. 3
Medical Marijuana Regulation and Safety Act
Cultivation (AB 243) – Examples:
City #1: Municipal Code that expressly prohibits cultivation of marijuana or expressly prohibits medical marijuana: No need to take any action.
City #2: Municipal Code that expressly regulates (requires a permit or license or other entitlement) to cultivate medical marijuana: No need to take any action.
City #3: Municipal Code that does not expressly prohibit nor expressly regulates (requires a permit or license or other entitlement) to cultivate medical marijuana and is not a “permissive zoning” code. Need to take action (see next slide)
City #4: Municipal Code that is a “permissive zoning” code and does not enumerate cultivation of medical marijuana as a permitted or conditional use: Need to take action (see next slide).
Medical Marijuana Regulation and Safety Act
Cultivation (AB 243) – Examples:
City #3 : What needs to be done before March 1, 2016?
City #3: The Department of Food and Agriculture will be the sole
licensing authority for the cultivation of medical marijuana within City
#3 if City #3 does not have an ordinance either expressly prohibiting or
expressly regulating the cultivation of medical marijuana before March 1,
2016. (Health & Safety Code 11362.777(c)(4). Second reading of an
ordinance must occur by January 29, 2016 or a city may consider adopting
an urgency ordinance pursuant to Government Code 36937).
Medical Marijuana Regulation and Safety Act
Cultivation (AB 243) – Examples:
City #4 : What needs to be done before March 1, 2016?
City #4: If City #4 prohibits the cultivation of medical marijuana “under
principles of permissive zoning,” then the Department of Food and
Agriculture may not issue a state license to cultivate medical marijuana
within City #4. (Health & Safety Code 11362.777(b)(3)).
Medical Marijuana Regulation and Safety Act
Cultivation - General Guidelines for Cities
Check and confirm that your city’s zoning code is adopted and implemented under the principles of permissive zoning. If not, take action recommended for City #3.
If confirmed that your city’s zoning code is adopted and implemented under the principles of permissive zoning: Adopt a resolution that includes the following provisions:
(1) States that H & S 11362.777(b)(3) states that Department of Food and Agriculture may not issue a state license to cultivate medical marijuana within a city that prohibits cultivation under principles of permissive zoning;
(2) Re-affirms and confirms that the Zoning Code is adopted and operates under the principles of permissive zoning;
(3) States this means that cultivation of marijuana is not allowed within City #4 because it is not expressly permitted and,
(4) Therefore, the State is not allowed to issue a license for the cultivation of medical marijuana within City #4.
Medical Marijuana Regulation and Safety Act
Timeline for Implementation
None of the bills specify a timeline for implementation
This is partly due to various departments being at different
stages in terms of their readiness
The rough timeline we have been given for state licensing
to begin is January 2018
The more immediate timeline for locals to bear in mind is
March 2016 regarding your cultivation ordinances
Medical Marijuana Regulation and Safety Act
Questions?
UCC Briefing
2015
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AB 243 (Wood)
Primarily contains provisions related to medical marijuana cultivation and environmental provisions.
AB 266 (Bonta)
The main vehicle for much of the year and contains dual licensing structure, local control and regulatory provisions.
SB 643 (McGuire)
Regulatory provisions, county taxing authority.
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Three organizations had the following common
principles for a licensing/regulatory structure:
Preserving local control
Explicit taxing authority
Ending the collective model
Addressing environmental
impacts
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Labeling and standards for edible products.
Unique identifier procedures.
State grant program.
Medical cannabis is defined as an agricultural
product.
Medical Cannabis Cultivation Program which
includes zip tie program.
Local control related to cultivation;
permissive zoning; local license must be
obtained first.
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Defines delivery to include technology platforms owned and controlled by the dispensary or independently licensed.
Provides local control language to provide that nothing in the bill can be interpreted to supersede or limit existing local authority, and allows cities and counties to adopt ordinances to establish additional standards on cannabis activity.
Requires a local license or permit prior to receiving a state license in order to commence cannabis activity.
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Allows for existing businesses operating in compliance with local zoning and prior to January 1, 2018, to continue its operations until it application is approved or denied. The licensing authority shall prioritize any facility that can demonstrate that it was in good standing with the local jurisdiction prior to January 1, 2016.
Requires explicit prohibition on mobile deliveries by a city or county otherwise deliveries are allowed.
Provision for labeling edible products by DPH.
Elimination of the collective model.
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Creates the Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs.
Provides an exemption for personal medical purposes.
State and Local license provisions.
Licensed cultivation sites including cross-licensing provisions.
Unique Identifier and Track and Trace Program.
Licensed transporters including provisions related to transportation on public roads.
Provides for permissive County Taxing Authority.
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Preserving Local Control (AB 266)
Nothing in this chapter shall be interpreted
to supersede or limit existing local
authority for law enforcement activity,
enforcement of local zoning requirements
or local ordinances, or enforcement of local
permit or licensing requirements.
Other local control provisions B&P 19316
(a); B&P 19316 (c).
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Dual Licensing
Critical to the cities to obtain dual licensing –
locals go first.
Exemptions for personal grows and for
patient caregivers (Proposition 215).
In order to be eligible for a state license, a
licensee must first obtain a local license.
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Mobile Deliveries Ordinance
Allows for mobile deliveries including
technology platforms (apps) to operate in
California.
Mobile deliveries are allowed unless
specifically prohibited by a local ordinance.
Mobile deliveries must originate from a
licensed dispensary.
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Cities have the option to Enforce (AB 266)
Upon approval of the state, cities can assume
enforcement role.
Counties have no liability and cities must
cover county costs if contracted.
City contracts with counties must be honored.
Counties do not have explicit authority to
enforce.
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Background Checks/License Restrictions (SB
643)
Licensees must submit to DOJ background
checks.
Previous criminal violations that could trigger
failure to obtain state license.
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Environmental Enforcement
Fine and penalty monies dedicated to state
and local environmental enforcement efforts.
Bureau of Marijuana Regulation must
establish a grant program for regulation and
enforcement assistance.
Water diversion protections.
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Status of (c) (4) in AB 243
Currently AB 243 provides that if a city or county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressively or otherwise under principles of permissive zoning or chooses not to administer a conditional permit program, then starting March 1, 2016, the Division shall be the sole licensing authority for medical marijuana cultivation applicants in that city or county.
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AB 243 provides that exemption from the
requirements of this section (for personal
grows and patients) does not limit or prevent
a city or county from regulating or banning
the cultivation, storage, manufacture,
transport, provision, or other activity by the
exempt person, or impair the enforcement of
that regulation or ban.
Future of this section -- H&S 11362.77 (g)
could be at risk.
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Employer Restrictions
Ending Collective Model
Transportation standards
Cross-Ownership restrictions
Environmental Enforcement
No reference to drug as unadulterated food product
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Clean-up to AB 243 to remove March 1, 2016
date.
AB 1548 and AB 1549 by Assemblymember
Wood to do a cultivation tax and to establish
a state bank.
Other clean up bills.
Ballot measures.
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If your county has an adopted ordinance on medical marijuana including a ban, this will still be protected under the Legislation.
If your county has not prohibited mobile deliveries you may want to consider updating your ordinance.
With the establishment of dual licensing, your county will need to start to establish a local licensing framework.
If AB 243 is not fixed quickly you may need to pass an ordinance on cultivation or your authority will be given to the State.
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Main ballot initiative is the Adult Use of
Marijuana Act which is sponsored by Sean
Parker and Gavin Newsom.
While other ballot initiatives have been filed –
the Parker initiative is the one that is funded
and the one which is gaining the most
traction.
The Adult Use of Marijuana Act would allow
for the recreational use of marijuana for
those 21 of age or older.
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Adds county taxing authority provisions to
the initiative.
Removes the provisions that would have
required a vote of the people for any local
government ban.
Keeps provisions that require county public
health department to issue medical
identification. The initiative provides that
reimbursement for this new mandate would
be provides by the Legislature upon request
of the counties.
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Dual licensing restored as requested by the
League of California Cities.
Cross Ownership of Licenses – Defers to state
regulatory agencies.
Has medical provisions and non-medical
provisions.
Recreational provisions would allow for the
possession, transport, purchase to persons
21 years or older of not more than 28.5
grams of marijuana.
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Jolena L. Voorhis, Executive Director
Phone: 916-327-7531
Jolena@urbancounties.com
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