Medical and Recreational Cannabis: A Legal Update

1 Aug 2021

LU Ref# CAB00096

Medical and Recreational Cannabis: A Legal Update

August, 2021
Robert C. Phillips
Deputy District Attorney (Ret.)

Significant Legislation/Voter Initiatives:

November 6, 1996: The “Compassionate Use Act of 1996” (“CUA,” Proposition 215; H&S § 11362.5) (pg. 23, below)

Summary: Provided protection for doctors recommending medical cannabis (then called “marijuana”) as well as decriminalizing possession and cultivation of limited amounts of cannabis, based upon a doctor’s recommendation.

January 1, 2004 (Amended June 27, 2017): The “Medical Marijuana Program Act” (“MMPA,” Stats. 2003, ch. 875, § 1, SB 420; H&S §§ 11362.7 et seq.) (pg. 34, below)

Summary: Created the voluntary ID card program and expanded immunity for patients and primary caregivers.

January 1, 2016: The “Medical Cannabis Regulation and Safety Act” (“MCRSA”) (Originally, the “Medical Marijuana Regulation and Safety Act”) (Stats 2015 ch 688 § 3, AB 243; Bus. & Prof. Code §§ 19300-19360).

Summary: Created the state regulatory structure for cultivation, manufacturing, distribution, and retail sales of medical marijuana, but was repealed per SB 94, effective June 27, 2017, and replaced by the “Medicinal and Adult-Use Cannabis Regulation and Safety Act,” below.

November 8, 2016 (as amended June 27, 2017): The “Control, Regulate and Tax Adult Use of Marijuana Act of 2016” (“AUMA”) (Proposition 64).

Summary: Legalized the adult use of marijuana for recreational purposes, but was repealed per SB 94, effective June 27, 2017, and replaced by the “Medicinal and Adult-Use Cannabis Regulation and Safety Act,” below.

June 27, 2017: The “Medicinal and Adult-Use Cannabis Regulation and Safety Act” (“MAUCRSA;”); SB 94: Bus. & Prof. Code §§ 26000 to 26231.2 (Division 10) and other codes. (pg. 115, below)

Summary: Combined the “Medical Cannabis Regulation and Safety Act” and the “Control, Regulate and Tax Adult Use of Marijuana Act, as amended September 16, 2017 (AB 133).

The Religious Freedom Restoration Act; 42 U.S.C. §§ 2000bb et seq. (pg. 105, below)

Note: See People v. Lee (2019) 40 Cal.App.5th 853, for a summary of the statutory progression of the possession and use of marijuana from unlawful to lawful:

“California transitioned to legalized marijuana in stages, from (1) total illegality to (2) permitted medical use to (3) decriminalization to (4) recreational legalization. Prior to 1996, any possession or use of marijuana was illegal. But in November 1996, voters approved a ballot initiative—Proposition 215, the Compassionate Use Act (Act)—which added section 11362.5 to the Health and Safety Code. . . . This Act allowed individuals suffering from an illness to obtain and use marijuana for medical purposes with a physician's recommendation. . . . These individuals, as well as their primary caregivers, were immune from criminal prosecution or sanction. . . .” (pg. 863.)

“Three years after . . . (2007), the governor signed Senate Bill No. 1449 decriminalizing marijuana possession. (Stats. 2010, ch. 708, §§ 1–2.) By amending section 11357 of the Health and Safety Code and section 23222 of the Vehicle Code, this legislation converted possession of up to one ounce of marijuana, including while driving, from a misdemeanor to an infraction. (Stats. 2010, ch. 708, §§ 1–2.)” (pg. 863-864.)

“With the passage of Proposition 64 by voters in 2016, California law now permits adults 21 years of age and older to legally possess up to 28.5 grams, or about one ounce, of marijuana. (§ 11362.1, subd. (a)(1).) Critically, the statute expressly provides that ‘[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (§ 11362.1, subd. (c).)’” (pg. 864.)

Basic Cannabis Statutes:

H&S Code § 11357 (Amended; Effective June 27, 2017, amended September 16, 2017): Possession of Cannabis; Possession on School Grounds; Punishments:

(a) Except as authorized by law, possession of not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, or both, shall be punished or adjudicated as follows:

(1) Persons under 18 years of age are guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete four hours of drug education or counseling and up to 10 hours of community service over a period not to exceed 60 days.

(B) Upon a finding that a second offense or subsequent offense has been committed, complete six hours of drug education or counseling and up to 20 hours of community service over a period not to exceed 90 days.

(2) Persons at least 18 years of age but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100).

(b) Except as authorized by law, possession of more than 28.5 grams of cannabis, or more than eight grams of concentrated cannabis, shall be punished as follows:

(1) Persons under 18 years of age who possess more than 28.5 grams of cannabis or more than eight grams of concentrated cannabis, or both, are guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete eight hours of drug education or counseling and up to 40 hours of community service over a period not to exceed 90 days.

(B) Upon a finding that a second or subsequent offense has been committed, complete 10 hours of drug education or counseling and up to 60 hours of community service over a period not to exceed 120 days.

(2) Persons 18 years of age or older who possess more than 28.5 grams of cannabis, or more than eight grams of concentrated cannabis, or both, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

(c) Except as authorized by law, a person 18 years of age or older who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished as follows:

(1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed.

(2) A fine of not more than five hundred dollars ($500), or by imprisonment in a county jail for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.

(d) Except as authorized by law, a person under 18 years of age who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs is guilty of an infraction and shall be punished in the same manner provided in subdivision (b)(1).

Note: See H&S §§ 11362.1 et seq., below, for the new statutes regarding the adult use of cannabis beginning as of January 1, 2018.

Case Law:

A non-consensual entry into a residence with probable cause to believe only that the non-bookable offense of possession of less than an ounce of marijuana is occurring (H&S § 11357(b)), being a “nonjailable offense,” is arguably a Fourth Amendment violation. (People v. Hua (2008) 158 Cal.App.4th 1027; People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998; see also United States v. Mongold (10th Cir. 2013) 528 F.3rd 944.)

The Torres Court also rejected as “speculation” the People’s argument that there being four people in the defendants’ hotel room indicted that a “marijuana-smoking party” was occurring, which probably involved a bookable amount of marijuana. (People v. Torres et al., supra, at p. 996.)

But see People v. Waxler (2014) 224 Cal.App.4th 712, 724-725; rejecting the Hua and Torres argument when the place being searched is a motor vehicle as opposed to a residence.

The plain sight observation of a legal amount of marijuana, enclosed in a container not open at that time, even with the odor of marijuana emanating from the vehicle, fails provide the necessary probable cause to search for more marijuana. Proposition 64 and H&S § 11362.1(c) provide an adult person in lawful possession of less than ounce of marijuana protection from being detained, searched, or arrested. (People v. Johnson (2020) 50 Cal.App.5th 620.)

H&S § 11357.5; Furnishing or Using Synthetic Cannabinoid or Derivative; Punishments:

(a) Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor, punishable by imprisonment in a county jail not to exceed six months, or by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

Note: Also known as “fake pot,” “spice,” or “K2.”

(b) Every person who uses or possesses any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, is guilty of a public offense, punishable as follows:

(1) A first offense is an infraction punishable by a fine not exceeding two hundred fifty dollars ($250).

(2) A second offense is an infraction punishable by a fine not exceeding two hundred fifty dollars ($250) or a misdemeanor punishable by imprisonment in a county jail not exceeding six months, a fine not exceeding five hundred dollars ($500), or by both that fine and imprisonment.

(3) A third or subsequent offense is a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

(c) As used in this section, the term “synthetic cannabinoid compound” refers to any of the following substances or an analog of any of the following substances:

(1) Adamantoylindoles or adamantoylindazoles, which includes adamantyl carboxamide indoles and adamantyl carboxamide indazoles, or any compound structurally derived from 3-(1-adamantoyl)indole, 3-(1-adamantoyl)indazole, 3-(2-adamantoyl)indole, N-(1-adamantyl)- 1H-indole-3-carboxamide, or N-(1-adamantyl)-1H-indazole-3-carboxamide by substi- tution at the nitrogen atom of the indole or indazole ring with alkyl, haloalkyl, alkenyl, cyanoalkyl, hydroxyalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2- piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the indole or indazole ring to any extent and whether or not substituted in the adamantyl ring to any extent, including, but not limited to, 2NE1, 5F-AKB-48, AB-001, AKB-48, AM-1248, JWH-018 adamantyl carboxamide, STS-135.

(2) Benzoylindoles, which includes any compound structurally derived from a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring with alkyl, haloalkyl, cyanoalkyl, hydroxy- alkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpho- linyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substi- tuted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent, including, but not limited to, AM-630, AM-661, AM-679, AM-694, AM-1241, AM-2233, RCS-4, WIN 48,098 (Pravadoline).

(3) Cyclohexylphenols, which includes any compound structurally derived from 2-(3-hydroxycyclohexyl)phenol by substitution at the 5-position of the phenolic ring by alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the cyclohexyl ring to any extent, including, but not limited to, CP 47,497, CP 55,490, CP 55,940, CP 56,667, cannabicyclohexanol.

(4) Cyclopropanoylindoles, which includes any compound structurally derived from 3-(cyclopropylmethanoyl)indole, 3-(cyclopropylmethanone)indole, 3-(cyclobutylmethanone)indole or 3-(cyclopentylmethanone)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the cyclopropyl, cyclobutyl, or cyclopentyl rings to any extent.

(5) Naphthoylindoles, which includes any compound structurally derived from 3-(1-naphthoyl)indole or 1H-indol-3-yl-(1-naphthyl)methane by substitution at the nitrogen atom of the indole ring by alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl group, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the naphthyl ring to any extent, including, but not limited to, AM-678, AM-1220, AM-1221, AM-1235, AM-2201, AM-2232, EAM-2201, JWH-004, JWH-007, JWH-009, JWH-011, JWH-015, JWH-016, JWH-018, JWH-019, JWH-020, JWH-022, JWH-046, JWH-047, JWH-048, JWH-049, JWH-050, JWH-070, JWH-071, JWH-072, JWH-073, JWH-076, JWH-079, JWH-080, JWH-081, JWH-082, JWH-094, JWH-096, JWH-098, JWH-116, JWH-120, JWH-122, JWH-148, JWH-149, JWH-164, JWH-166, JWH-180, JWH-181, JWH-182, JWH-189, JWH-193, JWH-198, JWH-200, JWH-210, JWH-211, JWH-212, JWH-213, JWH-234, JWH-235, JWH-236, JWH-239, JWH-240, JWH-241, JWH-242, JWH-258, JWH-262, JWH-386, JWH-387, JWH-394, JWH-395, JWH-397, JWH-398, JWH-399, JWH-400, JWH-412, JWH-413, JWH-414, JWH-415, JWH-424, MAM-2201, WIN 55,212.

(6) Naphthoylnaphthalenes, which includes any compound structurally derived from naphthalene-1-yl-(naphthalene-1-yl) methanone with substitutions on either of the naphthalene rings to any extent, including, but not limited to, CB-13.

(7) Naphthoylpyrroles, which includes any compound structurally derived from 3-(1-naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring by alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the pyrrole ring to any extent and whether or not substituted in the naphthyl ring to any extent, including, but not limited to, JWH-030, JWH-031, JWH-145, JWH-146, JWH-147, JWH-150, JWH-156, JWH-243, JWH-244, JWH-245, JWH-246, JWH-292, JWH-293, JWH-307, JWH-308, JWH-309, JWH-346, JWH-348, JWH-363, JWH-364, JWH-365, JWH-367, JWH-368, JWH-369, JWH-370, JWH-371, JWH-373, JWH-392.

(8) Naphthylmethylindenes, which includes any compound containing a naphthylideneindene structure or which is structurally derived from 1-(1-naphthylmethyl)indene with substitution at the 3-position of the indene ring by alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent, including, but not limited to, JWH-171, JWH-176, JWH-220.

(9) Naphthylmethylindoles, which includes any compound structurally derived from an H-indol-3-yl-(1-naphthyl) methane by substitution at the nitrogen atom of the indole ring by alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent, including, but not limited to, JWH-175, JWH-184, JWH-185, JWH-192, JWH-194, JWH-195, JWH-196, JWH-197, JWH-199.

(10) Phenylacetylindoles, which includes any compound structurally derived from 3-phenylacetylindole by substitution at the nitrogen atom of the indole ring with alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, or 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent, including, but not limited to, cannabipiperidiethanone, JWH-167, JWH-201, JWH-202, JWH-203, JWH-204, JWH-205, JWH-206, JWH-207, JWH-208, JWH-209, JWH-237, JWH-248, JWH-249, JWH-250, JWH-251, JWH-253, JWH-302, JWH-303, JWH-304, JWH-305, JWH-306, JWH-311, JWH-312, JWH-313, JWH-314, JWH-315, JWH-316, RCS-8.

(11) Quinolinylindolecarboxylates, which includes any compound structurally derived from quinolin-8-yl-1H-indole-3-carboxylate by substitution at the nitrogen atom of the indole ring with alkyl, haloalkyl, benzyl, halobenzyl, alkenyl, haloalkenyl, alkoxy, cyanoalkyl, hydroxyalkyl, cycloalkylmethyl, cycloalkylethyl, (N-methylpiperidin-2-yl)alkyl, (4-tetrahydropyran)alkyl, or 2-(4-morpholinyl)alkyl, whether or not further substituted in the indole ring to any extent, whether or not substituted in the quinoline ring to any extent, including, but not limited to, BB-22, 5-Fluoro-PB-22, PB-22.

(12) Tetramethylcyclopropanoylindoles, which includes any compound structurally derived from 3-tetramethylcyclopropanoylindole, 3-(1-tetramethylcyclopropyl)indole, 3-(2,2,3,3-tetramethylcyclopropyl)indole or 3-(2,2,3,3-tetramethylcyclopropylcarbonyl)indole with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, hydroxyalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or (tetrahydropyran-4-yl)methyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the tetramethylcyclopropanoyl ring to any extent, including, but not limited to, 5-bromo-UR-144, 5-chloro-UR-144, 5-fluoro-UR-144, A-796,260, A-834,735, AB-034, UR-144, XLR11.

(13) Tetramethylcyclopropane-thiazole carboxamides, which includes any compound structurally derived from 2,2,3,3-tetramethyl-N-(thiazol-2-ylidene)cyclopropanecarboxamide by substitution at the nitrogen atom of the thiazole ring by alkyl, haloalkyl, benzyl, halobenzyl, alkenyl, haloalkenyl, alkoxy, cyanoalkyl, hydroxyalkyl, cycloalkylmethyl, cycloalkylethyl, (N-methylpiperidin-2-yl)alkyl, (4-tetrahydropyran)alkyl, or 2-(4-morpholinyl)alkyl, whether or not further substituted in the thiazole ring to any extent, whether or not substituted in the tetramethylcyclopropyl ring to any extent, including, but not limited to, A-836,339.

(14) Unclassified synthetic cannabinoids, which includes all of the following:

(A) AM-087, (6aR,10aR)-3-(2-methyl-6-bromohex-2-yl)-6,6,9-t rimethyl-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol.

(B) AM-356, methanandamide, including (5Z,8Z,11Z,14Z)—[ (1R)-2-hydroxy-1-methylethyl]icosa-5,8,11,14-tetraenamide and arachidonyl-1’-hydroxy-2’-propylamide.

(C) AM-411, (6aR,10aR)-3-(1-adamantyl)-6,6,9-trimethyl-6 a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol.

(D) AM-855, (4aR,12bR)-8-hexyl-2,5,5-trimethyl-1 ,4,4a,8,9,10,11,12b-octahydronaphtho[3,2-c]isochromen-12-ol.

(E) AM-905, (6aR,9R,10aR)-3-[(E)-hept-1-enyl]-9-(hydroxymethyl)-6,6-dimethyl-6a,7,8,9,10,10a-hexahydrobenzo[c]chromen-1-ol.

(F) AM-906, (6aR,9R,10aR)-3-[(Z)-hept-1-enyl]-9-(hydroxymethyl)-6,6-dimethyl-6a,7,8,9,10,10a-hexahydrobenzo[c]chromen-1-ol.

(G) AM-2389, (6aR,9R,10aR)-3-(1-hexyl-cyclobut-1-yl)-6 a,7,8,9,10,10a-hexahydro-6,6-dimethyl-6H-dibenzo[b,d]pyran-1 ,9 diol.

(H) BAY 38-7271, (-)-(R)-3-(2-Hydroxymethylindanyl-4-o xy)phenyl-4,4,4-trifluorobutyl-1-sulfonate.

(I) CP 50,556-1, Levonantradol, including 9-hydroxy-6-methyl-3 -[5-phenylpentan-2-yl]oxy-5,6,6a,7,8,9,10,10a-octahydrophenant hridin-1-yl]acetate; [(6S,6aR,9R, 10aR)-9-hydroxy-6-methyl-3-[ (2R)-5-phenylpentan-2-yl]oxy-5,6,6a,7,8,9,10,10a-octahydrophenanthridin-1-yl]acetate; and [9-hydroxy-6-methyl-3-[5-phenylpentan-2-yl]oxy-5,6,6a,7,8,9,10,10a-octahydrophenanthridin-1-yl]acetate.

(J) HU-210, including (6aR,10aR)-9-(hydroxymethyl)-6,6-d imethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c] chromen-1-ol; [(6aR,10aR)-9-(hydroxymethyl)-6,6-dimethyl-3-( 2-methyl octan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-o l and 1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol.

(K) HU-211, Dexanabinol, including (6aS, 10aS)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol and (6aS, 10aS)-9-(hydroxy methyl)-6,6-dimethyl- 3-(2-methyloctan-2-yl)-6a,7,10,10a-t etrahydrobenzo[c]chromen-1-ol.

(L) HU-243, 3-dimethylheptyl-11-hydroxyhexahydrocannabinol.

(M) HU-308, [(91R,2R,5R)-2-[2,6-dimethoxy-4-(2-methyloctan-2 -yl)phenyl]-7,7-dimethyl-4-bicyclo[3.1.1]hept-3-enyl]methanol.

(N) HU-331, 3-hydroxy-2-[(1R,6R)-3-methyl-6-(1-m ethylethenyl)-2-cyclohexen-1-yl]-5-pentyl-2,5-cyclohexadiene-1 ,4-dione.

(O) HU-336, (6aR,10aR)-6,6,9-trimethyl-3-pentyl-6a,7,10,10a-tetrahydro-1H-benzo[c]chromene-1,4(6H)-dione.

(P) JTE-907, N-(benzol[1,3]dioxol-5-ylmethyl)-7-methoxy-2-o xo-8-pentyloxy-1,2-dihydroquinoline-3-carboxamide.

(Q) JWH-051, ((6aR,10aR)-6,6-dimethyl-3-(2-methyloctan-2-y l)-6a,7,10,10a-tetrahydrobenzo[c]chromen-9-yl)methanol.

(R) JWH-057 (6aR,10aR)-3-(1,1-dimethylheptyl)-6a,7,10,10a-t etrahydro-6,6,9-trimethyl-6H-Dibenzo[b,d]pyran.

(S) JWH-133 (6aR,10aR)-3-(1,1-Dimethylbutyl)-6a,7,10,10a-t etrahydro -6,6,9-trimethyl-6H-dibenzo[b,d]pyran.

(T) JWH-359, (6aR,10aR)- 1-methoxy- 6,6,9-trimethyl- 3-[(2R)-1 ,1,2-trimethylbutyl]- 6a,7,10,10a-tetrahydrobenzo[c]chromene.

(U) URB-597 [3-(3-carbamoylphenyl)phenyl]-N-cyclohexylcarb amate.

(V) URB-602 [1,1’-Biphenyl]-3-yl-carbamic acid, cyclohexyl ester; OR cyclohexyl [1,1’-biphenyl]-3-ylcarbamate.

(W) URB-754 6-methyl-2-[(4-methylphenyl)amino]-4H-3,1-b enzoxazin-4-one.

(X) URB-937 3’-carbamoyl-6-hydroxy-[1,1’-biphenyl]-3-yl cyc lohexylcarbamate.

(Y) WIN 55,212-2, including (R)-(+)-[2,3-dihydro-5-methyl-3 -(4-morpholinylmethyl)pyrrolo[1,2,3-de]-1,4-benzoxazin-6-yl]-1 -napthalenylmethanone and [2,3-Dihydro-5-methyl-3-(4-morp holinylmethyl)pyrrolo[(1,2,3-de)-1,4-benzoxazin-6-yl]-1-n apthalenylmethanone.

(d) The substances or analogs of substances identified in subdivision (c) may be lawfully obtained and used for bona fide research, instruction, or analysis if that possession and use does not violate federal law.

(e) As used in this section, “synthetic cannabinoid compound” does not include either of the following:

(1) Any substance for which there is an approved new drug application, as defined in the federal Food, Drug, and Cosmetic Act § 505 (21 U.S.C. § 355) or which is generally recognized as safe and effective for use pursuant to the federal Food, Drug, and Cosmetic Act §§ 501, 502 & 503, the Code of Federal Regulations, Title 21.

(2) With respect to a particular person, any substance for which an exemption is in effect for investigational use for that person pursuant to the federal Food, Drug, and Cosmetic Act § 505 (21 U.S.C. § 355), to the extent that the conduct with respect to that substance is pursuant to the exemption.

H&S Code § 11358 (Amended; Effective June 27, 2017): Planting, Cultivating, Harvesting, Drying, or Possessing Cannabis Plants; Punishments:

Each person who plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law, shall be punished as follows:

(a) Each person under the age of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished in the same manner provided in H&S Code § 11357(b)(1).

(b) Each person at least 18 years of age but less than 21 years of age who plants, cultivates, harvests, dries, or processes not more than six living cannabis plants shall be guilty of an infraction and a fine of not more than one hundred dollars ($100).

(c) Each person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

(d) Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants, or any part thereof, except as otherwise provided by law, may be punished by imprisonment pursuant to P.C. § 1170(h) if any of the following conditions exist:

(1) The person has one or more prior convictions for an offense specified in P.C. § 667(e)(2)(C)(iv), or for an offense requiring registration pursuant to P.C. § 290(c).

(2) The person has two or more prior convictions under subdivision (c).

(3) The offense resulted in any of the following:

(A) Violation of Water Code § 1052 relating to illegal diversion of water.

(B) Violation of Water Code §§ 13260, 13264, 13272, or 13387 relating to discharge of water.

(C) Violation of F&G Code §§ 5650 or 5652 relating to waters of the state.

(D) Violation of F&G § 1602 relating to rivers, streams, and lakes.

(E) Violation of P.C. § 374.8 relating to hazardous substances or H&S Code §§ 25189.5, 25189.6, or 25189.7 relating to hazardous waste.

(F) Violation of F&G Code § 2080 relating to endangered and threatened species, or F&G Code § 3513 relating to the Migratory Bird Treaty Act, or F&G Code § 2000 relating to the unlawful taking of fish and wildlife.

(G) Intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.

Proposition 64 did not create a legislative pardon for defendants facing felony charges for unlicensed sale and cultivation of marijuana (H&S §§ 11359, 11358) before it passed. Rather, California voters changed the penalties for the offenses by making those penalties less severe, and the so-called “Estrada rule” thus applied. Accordingly, in a case in which defendants were awaiting trial on felony charges of possession of marijuana for sale and cultivating marijuana when Proposition 64 was passed, it was appropriate to amend the complaints to charge misdemeanors to invoke the lighter punishment because the conduct alleged in the amended complaints remained criminal under California law, and the trial court thus erred in sustaining defendants' demurrers to the amended complaints and dismissing the charges. (People v. Xiao Dong Lin (2018) 26 Cal.App.5th Supp. 10.)

The Estrada rule, pursuant to In re Estrada (1965) 63 Cal.2nd 740, rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. (People v. Xiao Dong Lin, supra, at pp. 15-16.)

H&S Code § 11359 (Amended; Effective June 27, 2017): Possession of Cannabis For Sale; Punishments:

Every person who possesses for sale any cannabis, except as otherwise provided by law, shall be punished as follows:

(a) Every person under the age of 18 who possesses cannabis for sale shall be punished in the same manner provided in H&S Code § 11357(b)(1).

(b) Every person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(c) Notwithstanding subdivision (b), a person 18 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to P.C. § 1170(h):

(1) The person has one or more prior convictions for an offense specified in P.C. § 667(e)(2)(C)(iv), or for an offense requiring registration pursuant to P.C. § 290(c);

(2) The person has two or more prior convictions under subdivision (b); or

(3) The offense occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years.

(d) Notwithstanding subdivision (b), a person 21 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to P.C. § 1170(h) if the offense involves knowingly hiring, employing, or using a person 20 years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any cannabis.

The Estrada rule, pursuant to In re Estrada (1965) 63 Cal.2d 740, rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. (People v. Xiao Dong Lin, supra, at pp. 15-16.)

A lawful permanent resident’s petition was denied since her conviction for possession of marijuana for sale under H&S Code § 11359 made her removable even though the conviction had been recalled and reclassified as a misdemeanor under California’s Proposition 64. Federal immigration law did not recognize a state’s policy decision to expunge, recall, or reclassify a valid state conviction. Her conviction was reclassified for policy reasons of rehabilitation, rather than because it was substantively or procedurally flawed. California’s decision that its marijuana policy was flawed was not proof of a substantive flaw in her conviction, and the Control, Regulate, and Tax Adult Use of Marijuana Act merely reclassified her sentence as a matter of California law, rather than fully expunging it. (Prado v. Barr (9th Cir. May 10, 2019) __ F.3rd __ [2019 U.S. App. LEXIS 13984].)

H&S Code § 11360 (Amended; Effective June 27, 2017): Transporting, Importing into this State, Selling, Furnishing, Administering, or Giving Away, Cannabis; Punishments:

(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis shall be punished as follows:

(1) Persons under the age of 18 years shall be punished in the same manner as provided in H&S Code § 11357(b)(1).

(2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by imprisonment pursuant to P.C. § 1170(h) for a period of two, three, or four years if:

(A) The person has one or more prior convictions for an offense specified in P.C. § 667(e)(2)(C)(iv), or for an offense requiring registration pursuant to P.C. § 290(c);

(B) The person has two or more prior convictions under paragraph (2);

(C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish, administer, or give away cannabis to a person under the age of 18 years; or

(D) The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.

(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, that person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in P.C. § 853.6, and shall not be subjected to booking.

(c) For purposes of this section, “transport” means to transport for sale.

(d) This section does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.

Case law:

Defendant was placed on felony probation for interstate marijuana transportation, per H&S § 11360(a)(3). After the enactment of AB 1950, amending P.C. § 1203.1a to limit adult probation to a maximum of one year for misdemeanor offenses and two years for felony offenses, defendant argued that her felony probation should be reduced from three years to two. Agreeing with People v. Burton (2020) 58 Cal.App.5th Supp. 1, the Court agreed, holding that relief under AB 1950 applies retroactively to cases not yet final on appeal because the statute is ameliorative, and the Legislature offered no contrary expression. (People v. Quinn (Jan. 11, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 27].)

Note: See “Transportation of Marijuana,” under “The Compassionate Use Act of 1996; Proposition 215,” below.

H&S Code § 11361 (Amended; Effective June 27, 2017): Using Minors to Transport, Etc.; Selling to Minors; Giving to Minors Under the Age of 14; & Inducing a Minor to Use Cannabis; Punishment:

(a) A person 18 years of age or over who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling any cannabis, who unlawfully sells, or offers to sell, any cannabis to a minor, or who furnishes, administers, or gives, or offers to furnish, administer, or give any cannabis to a minor under 14 years of age, or who induces a minor to use cannabis in violation of law shall be punished by imprisonment in the state prison for a period of three, five, or seven years.

(b) A person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any cannabis to a minor 14 years of age or older in violation of law shall be punished by imprisonment in the state prison for a period of three, four, or five years.

H&S Code §§ 11361.1 (Amended; Effective June 27, 2017): Drug Education and Counseling Requirements:

(a) The drug education and counseling requirements under H&S Code §§ 11357, 11358, 11359, and 11360 shall be:

(1) Mandatory, unless the court finds that such drug education or counseling is unnecessary for the person, or that a drug education or counseling program is unavailable;

(2) Free to participants, and shall consist of at least four hours of group discussion or instruction based on science and evidence-based principles and practices specific to the use and abuse of cannabis and other controlled substances.

(b) For good cause, the court may grant an extension of time not to exceed 30 days for a person to complete the drug education and counseling required under H&S Code §§ 11357, 11358, 11359, and 11360.

H&S Code §§ 11361.5 (Amended; Effective June 27, 2017): Destruction of Certain Records After Two Years:

(a) Records of any court of this state, any public or private agency that provides services upon referral under P.C. § 1000.2, or of any state agency pertaining to the arrest or conviction of any person for a violation of H&S Code § 11357 or H&S Code § 11360(b), or pertaining to the arrest or conviction of any person under the age of 18 for a violation of any provision of this article except H&S Code § 11357.5, shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction, except with respect to a violation of H&S Code § 11357(d), or any other violation by a person under the age of 18 occurring upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs, the records shall be retained until the offender attains the age of 18 years at which time the records shall be destroyed as provided in this section. Any court or agency having custody of the records, including the statewide criminal databases, shall provide for the timely destruction of the records in accordance with subdivision (c), and those records shall also be purged from the statewide criminal databases. As used in this subdivision, “records pertaining to the arrest or conviction” shall include records of arrests resulting in the criminal proceeding and records relating to other offenses charged in the accusatory pleading, whether the defendant was acquitted or charges were dismissed. The two-year period beyond which records shall not be kept pursuant to this subdivision shall not apply to any person who is, at the time at which this subdivision would otherwise require record destruction, incarcerated for an offense subject to this subdivision. For such persons, the two-year period shall commence from the date the person is released from custody. The requirements of this subdivision do not apply to records of any conviction occurring prior to January 1, 1976, or records of any arrest not followed by a conviction occurring prior to that date, or records of any arrest for an offense specified in P.C. §§ 1192.7(c) or 667.5(c).

(b) This subdivision applies only to records of convictions and arrests not followed by conviction occurring prior to January 1, 1976, for any of the following offenses:

(1) Any violation of H&S Code § 11357 or a statutory predecessor thereof.

(2) Unlawful possession of a device, contrivance, instrument, or paraphernalia used for unlawfully smoking cannabis, in violation of H&S Code § 11364, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

(3) Unlawful visitation or presence in a room or place in which cannabis is being unlawfully smoked or used, in violation of H&S Code § 11365, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

(4) Unlawfully using or being under the influence of cannabis, in violation of H&S Code § 11550, as it existed prior to January 1, 1976, or a statutory predecessor thereof.

Any person subject to an arrest or conviction for those offenses may apply to the Department of Justice for destruction of records pertaining to the arrest or conviction if two or more years have elapsed since the date of the conviction, or since the date of the arrest if not followed by a conviction. The application shall be submitted upon a form supplied by the Department of Justice and shall be accompanied by a fee, which shall be established by the department in an amount which will defray the cost of administering this subdivision and costs incurred by the state under subdivision (c), but which shall not exceed thirty-seven dollars and fifty cents ($37.50). The application form may be made available at every local police or sheriff’s department and from the Department of Justice and may require that information which the department determines is necessary for purposes of identification.

The department may request, but not require, the applicant to include a self-administered fingerprint upon the application. If the department is unable to sufficiently identify the applicant for purposes of this subdivision without the fingerprint or without additional fingerprints, it shall so notify the applicant and shall request the applicant to submit any fingerprints which may be required to effect identification, including a complete set if necessary, or, alternatively, to abandon the application and request a refund of all or a portion of the fee submitted with the application, as provided in this section. If the applicant fails or refuses to submit fingerprints in accordance with the department’s request within a reasonable time which shall be established by the department, or if the applicant requests a refund of the fee, the department shall promptly mail a refund to the applicant at the address specified in the application or at any other address which may be specified by the applicant. However, if the department has notified the applicant that election to abandon the application will result in forfeiture of a specified amount which is a portion of the fee, the department may retain a portion of the fee which the department determines will defray the actual costs of processing the application, provided the amount of the portion retained shall not exceed ten dollars ($10).

Upon receipt of a sufficient application, the Department of Justice shall destroy records of the department, if any, pertaining to the arrest or conviction in the manner prescribed by subdivision (c) and shall notify the Federal Bureau of Investigation, the law enforcement agency which arrested the applicant, and, if the applicant was convicted, the probation department which investigated the applicant and the Department of Motor Vehicles, of the application.

(c) Destruction of records of arrest or conviction pursuant to subdivision (a) or (b) shall be accomplished by permanent obliteration of all entries or notations upon the records pertaining to the arrest or conviction, and the record shall be prepared again so that it appears that the arrest or conviction never occurred. However, where (1) the only entries upon the record pertain to the arrest or conviction and (2) the record can be destroyed without necessarily effecting the destruction of other records, then the document constituting the record shall be physically destroyed.

(d) Notwithstanding subdivision (a) or (b), written transcriptions of oral testimony in court proceedings and published judicial appellate reports are not subject to this section. Additionally, no records shall be destroyed pursuant to subdivision (a) if the defendant or a codefendant has filed a civil action against the peace officers or law enforcement jurisdiction which made the arrest or instituted the prosecution and if the agency which is the custodian of those records has received a certified copy of the complaint in the civil action, until the civil action has finally been resolved. Immediately following the final resolution of the civil action, records subject to subdivision (a) shall be destroyed pursuant to subdivision (c) if more than two years have elapsed from the date of the conviction or arrest without conviction.

H&S Code § 11361.7 (Effective January 1, 1977): Records Not Considered Accurate, Timely, or Complete; Use of Records:

(a) Any record subject to destruction or permanent obliteration pursuant to H&S Code § 11361.5, or more than two years of age, or a record of a conviction for an offense specified in H&S Code § 11361.5(a) or (b) which became final more than two years previously, shall not be considered to be accurate, relevant, timely, or complete for any purposes by any agency or person. The provisions of this subdivision shall be applicable for purposes of the Privacy Act of 1974 (5 U.S.C. § 552a) to the fullest extent permissible by law, whenever any information or record subject to destruction or permanent obliteration under H&S Code § 11361.5 was obtained by any state agency, local public agency, or any public or private agency that provides services upon referral under P.C. § 1000.2, and is thereafter shared with or disseminated to any agency of the federal government.

(b) No public agency shall alter, amend, assess, condition, deny, limit, postpone, qualify, revoke, surcharge, or suspend any certificate, franchise, incident, interest, license, opportunity, permit, privilege, right, or title of any person because of an arrest or conviction for an offense specified in H&S Code § 11361.5(a) or (b), or because of the facts or events leading to such an arrest or conviction, on or after the date the records of such arrest or conviction are required to be destroyed by H&S Code § 11361.5(a), or two years from the date of such conviction or arrest without conviction with respect to arrests and convictions occurring prior to January 1, 1976. As used in this subdivision, “public agency” includes, but is not limited to, any state, county, city and county, city, public or constitutional corporation or entity, district, local or regional political subdivision, or any department, division, bureau, office, board, commission or other agency thereof.

(c) Any person arrested or convicted for an offense specified in H&S Code § 11361.5(a) or (b) may, two years from the date of such a conviction, or from the date of the arrest if there was no conviction, indicate in response to any question concerning his prior criminal record that he was not arrested or convicted for such offense.

(d) The provisions of this section shall be applicable without regard to whether destruction or obliteration of records has actually been implemented pursuant to H&S Code § 11361.5.

H&S Code § 11361.8: Recall or Dismissal of Sentence in Accordance with Control, Regulate and Tax Adult Use of Marijuana Act:

(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with H&S Code §§ 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.

(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.

(1) In exercising its discretion, the court may consider, but shall not be limited to evidence provided for in P.C. § 1170.18(b).

Where a trial court denied defendant’s petition for dismissal under this section, the Appellate Court held that the court had the authority to consider facts beyond the record of conviction and to do so in an evidentiary hearing. However, the People failed to meet its evidentiary burden of proving ineligibility because the only evidence submitted by the People as a probation report containing inadmissible hearsay and defendant’s stipulation to the report as the factual basis for a guilty plea, and did not establish that defendant had cultivated more plants than the allowable number under H&S Code § 11362.1(a). The trial court also erred when it took judicial notice of the police report (see Evid. Code § 452(d)) without notifying defendant and affording him an opportunity to be heard, pursuant to Evid. Code § 455. (People v. Banda (2018) 26 Cal.App.5th 349, as modified at 2018 Cal. App. LEXIS 831.)

(2) As used in this section, “unreasonable risk of danger to public safety” has the same meaning as provided in P.C. § 1170.18(c).

Defendant’s petition for recall and resentencing of his marijuana conviction under H&S Code § 11361.8 was denied based on allegations of dangerousness in the prosecution’s response, and defendant appealed. The Court reversed and held; “we make clear that the prosecution is required to admit actual evidence to establish an unreasonable risk of danger to public safety in the second step of [H&S § 11361.8(b)], enacted as part of Proposition 64. We further hold that the standard of proof is proof by a preponderance of the evidence. Mere assertions of fact and argument by the prosecution, unsupported by evidence, is insufficient to establish an unreasonable risk of danger to the public, i.e., an unreasonable risk that the petitioner will commit a ‘super-strike’ violent felony offense.” (People v. Saelee (2018) 28 Cal.App.5th 744.)

(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to supervision for one year following completion of his or her time in custody or shall be subject to whatever supervision time he or she would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. Such person is subject to parole supervision under P.C. § 3000.08 or post-release community supervision under P.C. § 3451(a) by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.

(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.

(e) A person who has completed his or her sentence for a conviction under H&S Code §§ 11357, 11358, 11359, and 11360, whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction in accordance with H&S Code §§ 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by this Act.

(f) The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under the Control, Regulate and Tax Adult Use of Marijuana Act.

(g) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).

(h) Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor or infraction under subdivision (f) shall be considered a misdemeanor or infraction for all purposes. Any misdemeanor conviction that is recalled and resentenced under subdivision (b) or designated as an infraction under subdivision (f) shall be considered an infraction for all purposes.

(i) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.

(j) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.

(k) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of the Control, Regulate and Tax Adult Use of Marijuana Act.

(l) A resentencing hearing ordered under this act shall constitute a “post-conviction release proceeding” under Article I, subdivision (b), paragraph (7), of the California Constitution (Marsy’s Law).

(m) The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under W&I Code § 602 if the juvenile would not have been guilty of an offense or would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act.

(n) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.

Case Law:

Defendant’s conviction for felony possession for sale of marijuana (H&S Code § 11359) was not automatically reduced to a misdemeanor after passage of Proposition 64, and her three-year sentence was not automatically reduced to a maximum of six months under amended H&S Code § 11359, even though the judgment was not final when Proposition 64 was enacted. Proposition 64 creates access to resentencing for prisoners previously sentenced for specified marijuana-related crimes, but under H&S Code § 11361.8, that access is subject to judicial evaluation of the impact of resentencing on public safety. (People v. Rascon (2017) 10 Cal.App.5th 388, 392-395.)

Proposition 64, effective as of November 9, 2016, lowered the potential punishment for possession of sale of marijuana from a straight felony (16 months, 2 or 3 years, per P.C. § 1170(h)) to a misdemeanor (6 months in county jail, per H&S Code § 11359(b)).

Defendant was convicted of felony marijuana possession (H&S § 11357(a)) in 2014 and at the time of his arrest provided his DNA by buccal swab. In 2016, the charge was reduced to a misdemeanor pursuant to the plea agreement and P.C. § 1170.18, and in 2017 it was reduced to an infraction under Proposition 64/H&S § 11361.8. Defendant thereafter moved to have his DNA expunged from the state’s database, the motion was denied, and defendant appealed. The DCA affirmed: “Because DNA collection occurs at the time of the felony arrest ([P.C. §] 296.1) and is administrative [], the redesignation to an infraction for all purposes under Proposition 64 does not relate back to the initial charge for purposes of DNA expungement” and “[w]hile [defendant’s] felony conviction was redesignated an infraction for all purposes, the retroactive impact is limited to ameliorate the punitive effects of the conviction. . . . DNA collection and retention is not punitive. . . . Thus, the redesignation has no effect on the DNA retention.” (People v. Laird (2018) 27 Cal.App.5th 458.)

While serving a prison sentence for another offense, defendant pled no contest to a charge of possession of marijuana in prison and was sentenced to a two-year term. He appealed, and argued the trial court erred in summarily denying his petition to recall or dismiss this sentence after the passage of Proposition 64, which legalized possession of up to 25.8 grams of marijuana by adults 21 years of age and older. The First District Court of Appeal (Div. 2) disagreed and affirmed, holding: “Proposition 64 did not remove possession of marijuana in prison from the reach of P.C. § 4573.6 (Possession of a Controlled Substance in Prison), the statute under which [defendant] was convicted.” (People v. Perry (2019) 32 Cal.App.5th 885.)

Proposition 64 did not invalidate cannabis-related convictions for possessing a controlled substance in a state correctional facility under Penal Code section 4573.6 because Prop. 64 contained an exception preserving laws pertaining to smoking or ingesting cannabis on the grounds of or within any CDCR facility. Two justices (Kruger & Cuéllar) concurred and dissented, however, agreeing that Prop. 64 did not legalize cannabis possession in prisons or jails but arguing that Prop. 64 would limit such offenses to violations of Penal Code § 4573.8, which has a lesser punishment and more broadly pertains to possession of drugs or alcoholic beverages in prisons, jails, and other detention facilities, these two justices noting that the proposition removed from the applicable division of the Health and Safety Code the provision prohibiting adults from possessing less than 28.5 grams of cannabis. (People v. Raybon (Aug. 12, 2021) __ Cal.5th __ [2021 Cal. LEXIS 5596.)

Pen. Code § 4573.6 provides:

(a) Any person who knowingly has in his or her possession in any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any place where prisoners of the state are located under the custody of prison officials, officers, or employees, or in any county, city and county, or city jail, road camp, farm, or any place or institution, where prisoners or inmates are being held under the custody of any sheriff, chief of police, peace officer, probation officer, or employees, or within the grounds belonging to any jail, road camp, farm, place or institution, any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison or jail, institution, camp, farm or place, or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison, jail, institution, camp, farm or place, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(b) The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county.

Pen. Code § 4573.8 provides that any person who knowingly has in his or her possession in any state prison, prison road camp, prison forestry camp, or other prison camp or prison farm or any place where prisoners of the state are located under the custody of prison officials, officers, or employees, or in any county, city and county, or city jail, road camp, farm, or any place or institution, where prisoners or inmates are being held under the custody of any sheriff, chief of police, peace officer, probation officer, or employees, or within the grounds belonging to any jail, road camp, farm, place, or institution, drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages, without being authorized to possess the same by rules of the Department of Corrections, rules of the prison or jail, institution, camp, farm, or place, or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison, jail, institution, camp, farm, or place, is guilty of a felony.

The prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities under the jurisdiction of, or operated by, the state or any city, county, or city and county.

See also People v. Herrera (2020) 52 Cal.App.5th 982, where the Sixth District Court of Appeal held that Prop. 64 did not decriminalize the possession of marijuana in jail. Defendant, therefore, was properly convicted under Pen. Code, § 4573.6 for possession of cannabis in jail. Health & Saf. Code § 11362.45(d), has a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail. Also, it was held that a post-sentencing amendment to the one-year enhancement in Pen. Code § 667.5(b) applied to defendant because the case was not yet final on the effective date of the amendment. Under the amendment, the one-year enhancement was not applicable to his prior prison terms for possession of a weapon in a penal institution, carrying a concealed dirk or dagger, and robbery.

Defendant, who was serving a prison sentence for possessing cannabis in a correctional institution, in violation of Pen. Code § 4573.8, was not entitled to dismissal and recall of his sentence under Proposition 64, which made it legal to possess up to 28.5 grams of cannabis and provided for relief in the form of recall or dismissal of existing sentences in that the crime was not affected by Proposition 64. Although P.C. § 4573.8 criminalizes possession rather than use of drugs in a correctional institution, for purposes of the carve-out language in Health & Saf. Code § 11362.45, H&S Code § 4573.8 is properly described as a law “pertaining to” smoking or ingesting cannabis in such a setting, as it is part of prophylactic approach to prevent prisoners from using drugs. (People v. Whalum (2020) 50 Cal.App.5th 1.)

Case Law:

A gang enhancement under Pen. Code, § 186.22(b)(1)(A), did not render an applicant ineligible for redesignation under Health & Saf. Code § 11361.8(e) and (f), of a conviction for possession of marijuana for sale under Health & Saf. Code § 11359, from a felony to a misdemeanor because a gang enhancement was not among the specified exceptions to treating the offense as a misdemeanor, nor were felony convictions with gang enhancements otherwise excluded, and the gang enhancement was not part of the underlying offense regardless of whether a substantive gang offense would have been a felony. Redesignation was required because the applicant had completed the sentence, the applicant had no prior convictions that would be punishable as a felony under the amended version of § 11359, and no exception to treating the offense as a misdemeanor applied. (People v. Jessup (2020) 50 Cal.App.5th 83.)

H&S § 11361.9 (Effective 1/1/2019): Marijuana (Cannabis) Cases Entitled to H&S § 11361.8 Relief:

The Department of Justice (DOJ) is required by July 1, 2019, to review the records in its state criminal history information database and identify prior marijuana convictions that are potentially eligible for recall or dismissal of sentence, dismissal and sealing, or re-designation pursuant to H&S § 11361.8.

Note: H&S § 11361.8 provides for the recall or dismissal of sentence in Accordance with “Control, Regulate and Tax Adult Use of Marijuana Act” (Proposition 64), of November, 2016.

DOJ is required to notify local prosecutors of all cases in their jurisdictions that are eligible for H&S § 11361.8 relief.

Local prosecutors are then required, by July 1, 2020, to review all cases, to determine whether or not to challenge relief under H&S § 11361.8, and to inform the court and the public defender’s office about which cases are being challenged and which ones are not. Defendants are automatically entitled to H&S § 11361.8 relief if the prosecution does not challenge such relief.

The public defender’s office must then make a reasonable effort to notify defendants whose cases are being challenged.

The court is then to notify DOJ about any recall or dismissal of sentence, dismissal and sealing, or re-designation, and requires DOJ to modify its state criminal history database accordingly.

DOJ is to post general information on its Internet Web site about H&S § 11361.8 relief.

A defendant who is “currently serving a sentence” or who “proactively” petitions for H&S § 11361.8 relief is to be prioritized for review.

The Compassionate Use Act of 1996; Proposition 215: On November 6, 1996, the so-called “Compassionate Use Act of 1996” (“CUA”) became effective via initiative, by popular vote at a general election, adding new Health and Safety Code section 11362.5. This act legalized the cultivation and use of marijuana when necessary for medical purposes.

H&S § 11362.5 (Effective November 6, 1996) The Compassionate Use Act:

(a): This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b)

(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana 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 marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Note: Despite the use of the phrase “seriously ill Californians,” the last phrase of this sentence would appear to made this defense available to just about anyone claiming any degree of illness for which the ingestion of marijuana provides relief, so long as approved by a physician.

However, this provision does not authorize the establishment of a marijuana collective under the guise of being a medical office, merely because the marijuana is intended to be used to treat the sick. The issue is whether a city properly determined that a medical marijuana collective in a commercial zoning district was not an authorized use of the subject property, ordering the collective to close. The Court held that the medical office use category in the municipal code did not include medical marijuana collectives. Because defendants’ medical marijuana collective was not a permitted use when it opened, it did not qualify as a legal non-conforming use. Also, the City could not be equitably estopped from enforcing the municipal code because reliance on delayed enforcement was not reasonable, because reliance on payment of taxes was not reasonable, and because the city’s fundamental interest in locally determining where medical marijuana collectives were authorized outweighed the potential impacts to defendants. (J. Arthur Properties, II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480.)

(B) To ensure that patients and their primary caregivers who obtain and use marijuana 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 marijuana to all patients in medical need of marijuana.

(2) 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 marijuana for nonmedical purposes.

(See 88 Ops.Cal.Atty.Gen. 113 (2005) 1 Opinion No. 04-709; citing 86 Ops.Cal.Atty.Gen. 180, 181 (2003); see also People v. Wright (2006) 40 Cal.4th 81, 89.)

(c): Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d): Provides an affirmative defense for a patient and/or the patient’s “primary caregiver” to the charges of simple possession of marijuana (H&S § 11357) and/or cultivation of marijuana (H&S § 11358) when both of the following requirements are met:

The patient has the “written or oral recommendation or approval” of a physician to use marijuana; and

The marijuana is cultivated and/or possessed for the “personal medical purposes of the patient.”

Note also that a lawful prescription is not required. A physician's “written or oral recommendation or approval” is all that is required. (H&S § 11362.5(d))

While the term “physician” was not originally defined, a definition of “attending physician” was added by new legislation effective 1/1/04, in H&S 11362.7(a) (See below).

The California Attorney General has opined that hashish and concentrated cannabis may be used for medical purposes under the Compassionate Use Act. (86 Ops.Cal.Atty.Gen. 180 (2003)) The Third District Court of Appeal is in accord, at least as to “concentrated cannabis.” (People v. Mulcrevy (2014) 233 Cal.App.4th 127, 131-133.)

The recommendation does not expire, even if the physician indicates that the patient should return periodically for revaluation. (People v. Windus (2008) 165 Cal.App.4th 634.)

(e): The “primary caregiver” is defined “(f)or purposes of this section,” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health or safety of that person.”

See also H&S § 11362.7(d), below, for a more thorough definition of the term “primary caregiver.”

Defining the term “primary caregiver” for a jury in the language of the statute is legally sufficient. The words used all have common, non-legal meaning and need to be further defined. (People v. Frazier (2005) 128 Cal.App.4th 807, 822-823.)

A person who does no more than supply another with marijuana and occasionally visit him does not qualify as a “caregiver.” (People v. Windus (2008) 165 Cal.App.4th 634.)

To qualify as a “primary caregiver,” an individual must show that “he or she;

Consistently provided caregiving;
Independent of any assistance in taking medical marijuana;
At or before the time he or she assumed responsibility for assisting with medical marijuana.” (People v. Mentch (2008) 45 Cal.4th 274, 283.)

In order to qualify as a “primary caregiver” defendant must prove that he has assumed responsibility for the patient’s care by taking care of the patient above and beyond merely supplying him with the marijuana. In other words, a “primary caregiver” must prove he has provided caregiving services independent of the act of giving the patient marijuana. The person must show “a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one pharmaceutical need.” (People v. Mentch, supra, at p. 286; see also People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007.)

“(A) primary caregiver is required to be someone who (1) has been designated as such by one exempted under the CUA and MMPA (i.e., a qualified patient); and (2) ‘has consistently assumed responsibility for the housing, health, or safety of that patient or person.’” Id., at pp. 1015-1016, citing H&S § 11362.7(d) and People v. Mentch, supra, at p. 283; and noting that; “Individuals operating a marijuana-buying cooperative do not, by providing medical patients with medicinal marijuana, consistently assume responsibility for the health of those patients.”)

Note: Should the person claim to be a patient’s “primary caregiver,” it is incumbent upon that person to prove that he or she has been “designated by the (patient as the ‘primary caregiver,’ and one) who has consistently assumed responsibility for the housing, health, or safety of that person.”

Additional Case Law:

The language of this statute does not allow for a medicinal marijuana cooperative, supplying marijuana to an unlimited number of patients. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 767-773.)

This effectively prevents a person who seeks to provide marijuana to a so-called “cannabis club,” cooperative, or other dispensary from claiming the benefits of section 11362.5 (People v. Galambos (2002) 104 Cal.App.4th 1147.), or the organizers or employees of such organizations themselves from selling or furnishing marijuana to patients or their primary caregivers. (People ex rel. Lungren v Peron (1997) 59 Cal.App.4th 1383.)

But see the subsequently enacted H&S § 11362.7(d), below.

As an “affirmative defense” (People v. Mower (2002) 28 Cal.4th 457; see also People v. Fisher (2002) 96 Cal.App.4th 1147, and People v. Dowl (2013) 57 Cal.4th 1079, 1086.), it is the burden of the person found to be in possession of marijuana to prove that he or she comes within the protections of this statute.

Per Mower, section 11362.5 does not provide a person using marijuana for medicinal purposes with a “complete immunity” from prosecution. However, he is entitled to what the Supreme Court referred to as “limited immunity.” What this means is that at trial, if the defendant is able to present to the trier-of-fact sufficient evidence to show that he possessed or cultivated the marijuana strictly for medicinal purposes, based upon the recommendation or authorization of a physician, he must be acquitted. (Id., at pp. 464, 467-473; People v. Urziceanu (2005) 132 Cal.App.4th 747, 773-774.)

“A defendant may invoke it (the affirmative defense) by introducing at trial evidence that raises a reasonable doubt as to the facts underlying the CUA (Compassionate Use Act) defense.” (People v. Dowl, supra, citing People v. Mower, supra, at pp. 479-483.)

See also United States v. Evans (9th Cir. July 9, 2019) __ F.3rd __ [2019 U.S. App. LEXIS 20292], where it was similarly held that it is the defendant’s burden of proof to show strict compliance with Washington State’s Medical Use of Cannabis Act (MUCA), and that he met the legal requirements for possessing medical marijuana, where the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217, authorized one in possession of medical marijuana to seek to enjoin prosecution.

Other issues resolved in Mower:

Procedure: In a felony prosecution, at least, a defendant should not even be faced with the specter of a trial if the prosecution is unable to show probable cause of guilt either at the preliminary examination or, when indicted, at a grand jury hearing. As a form of limited immunity, therefore, the defendant should be able to stop the prosecution prior to trial by negating the existence of probable cause through the presentation of evidence of his status as a qualified patient or caregiver. Failing to convince the preliminary hearing magistrate, or a grand jury, he can test the legality of the magistrate’s bindover or the grand jury’s true bill under authority of P.C § 995 in a subsequent “motion to dismiss.” (Id., at pp. 473-476.)

Standard of Proof: As an “affirmative defense,” how much evidence must the defendant present? In Mower’s trial, the court instructed the jury that the defendant must prove he is a qualified patient by a “preponderance of the evidence.” The Supreme Court ruled that that was reversible error, finding instead that the true standard of proof is the mere “raising of a reasonable doubt.” The case, therefore, was remanded with direction that this instruction, describing the correct standard of proof, be corrected for the next jury. (Id., at pp. 476-482; People v. Frazier (2005) 128 Cal.App.4th 807, 816-822; CALJIC No. 12.24.1.)

In Frazier, supra, the court rejected the defendant’s argument that it was improper to put the burden of proof on the defendant instead of holding the prosecution to their standard burden of proving each element of the offense beyond a reasonable doubt. Citing Mower, the difficulties of expecting the prosecution to disprove an affirmative defense were discussed.

Although California’s Compassionate Use Act provides a defense at trial or a basis to move to set aside the indictment or information prior to trial, it does not shield a person suspected of possessing or cultivating marijuana from an investigation or arrest. Nor does it impose an affirmative duty on law enforcement officers to investigate a suspect’s status as a qualified patient or primary caregiver prior to seeking a search warrant. The trial court, therefore, did not err in denying defendant’s suppression motion upon determining that the affidavit in support of the search warrant established probable cause to search. (People v. Clark (2014) 230 Cal.App.4th 490, 497-501.)

However, as an affirmative defense, it is up to the jury to decide, in addition to any other factual issues, whether or not such a defense is sufficient under the circumstances. This is true whether the issue is:

That the quantity of marijuana being possessed is indicative of possession of the substance for purposes of sale, thus negating the availability of a medicinal use defense. (See People v. Trippet (1997) 56 Cal.App.4th 1532.)

See People v. Frazier (2005) 128 Cal.App.4th 807, 824-825; it is a jury question as to whether the amount of marijuana possessed by the defendant is “reasonably related to the patient’s current medical needs” when assessing the compassionate use defense.

See also People v. Kelly (2010) 47 Cal.4th 1008, finding as unconstitutional H&S § 11362.77, to the extent that section 11362.77 “burdens the defense” by changing the amount of marijuana that may be possessed from that which is “reasonably related to the patient’s current medical needs” to a specific statutory amount absent a doctor’s authorization.

Where a person needs more marijuana than normal, it is not necessary that that fact be specified in the physician’s recommendation, at least so long as the physician is able to testify at trial as to the amount that is appropriate for defendant. (People v. Windus (2008) 165 Cal.App.4th 634.)

The question is; how much marijuana is a “reasonable amount” given the particular patient’s perceived illness and other circumstances. “The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs.” (Littlefield v. County of Humboldt (2013) 218 Cal. App. 4th 243, 251-253.)

That a physician did in fact give the defendant approval to use marijuana. (People v. Jones (2003) 112 Cal.App.4th 341, 350-351.)

Whether or not a defendant is sufficiently “seriously ill” is not a question for the jury. “[T]he question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently ‘serious.’” (People v. Spark (2004) 121 Cal.App.4th 259.)

However, the Compassionate Use Act does not extend to a doctor’s post-arrest ratification of self-medication. (People v. Rigo (1999) 69 Cal.App.4th 409.)

Transportation of Marijuana: The transportation of marijuana (H&S § 11360) is not illegal so long as the person charged qualifies for limited immunity under Proposition 215, the “Compassionate Use Act” (H&S § 11362.5), as expanded by the “Medical Marijuana Program” (H&S §§ 11362.7 et seq.). (People v. Wright (2006) 40 Cal.4th 81.)

Note: Effective January 1, 2016, the transportation of marijuana is a felony only if it is done for the purpose of selling it. (AB 730; H&S § 11360(c); The term “transport,” when referring to transporting marijuana, is interpreted to mean “transportation for sale.”)

Also, effective 1/1/2016; “This section (i.e., H&S § 11360) does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.”

Note: In either case, the arresting or detaining deputy or officer must verify as many of the subject’s claims as is practical under the circumstances, recognizing the potential for persons in illegal possession of marijuana to manufacture a medical necessity defense after the fact. See below.

Note also V.C. § 23222(b(1) Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in V.C. § 23220(b), any receptacle containing any cannabis or cannabis products, as defined by H&S Code § 11018.1, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”

Defendant’s conviction for conspiracy to import and conspiracy to distribute marijuana was reversed where there was held to be insufficient evidence that defendant entered into a conspiratorial agreement to import or distribute marijuana. The government’s case rested almost entirely on expert testimony regarding drug traffickers’ use of scouts to facilitate the transportation of marijuana through the area in which Border Patrol agents observed the defendant and two other unknown men, and there was no evidence of (a) drugs that actually passed through or were intended to pass through that area under the defendant’s watch, or (b) any specific individuals with whom the defendant allegedly conspired. The panel emphasized that the government may not rely on expert testimony of drug courier profiles alone to establish guilt. (United States v. Espinoza-Valdez (9th Cir. May 7, 2018) __ F.3rd __, __ [2018 U.S. App. LEXIS 11864].)

See People v. Johnson (2018) 21 Cal.App.5th 1026, 1037-1039; recognizing the rule of People v. Waxler (2014) 224 Cal.App.4th 712, which upheld the warrantless search of an automobile notwithstanding the legality of the possession of limited amounts of marijuana under the Compassionate Use Act of 1996 (CUA; H&S Code § 11362.5 et seq.), where it was held that the observation of any amount of marijuana in a vehicle established probable cause to search the car. Without ruling whether or not Waxler was wrongly decided, the Court in Johnson upheld the search of defendant’s vehicle upon a finding of probable cause to believe that his car contained evidence of a recent drug sale unrelated to the plain sight observation of an unknown amount of marijuana in the middle of the front passenger seat.

Return of Property: As an affirmative defense, a defendant found in possession of excessive amounts of marijuana is precluded from asking for a certain amount to be returned to him for medicinal purposes. There is no statutory authority for the court to return some of the marijuana to him after his admission that he possessed more than legally allowed. (Chavez v. Superior Court [Orange County] (2004) 123 Cal.App.4th 104.)

However, in those cases where the marijuana is determined to be possessed in accordance with state law, the court has the authority (despite the contrary federal law) to order the law enforcement agency to return any confiscated marijuana to the person. (City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355.)

See also Smith v. Superior Court (San Francisco Police Department) (2018) 28 Cal.App.5th Supp. 1: After the granting of a non-statutory motion to return property following dismissal of criminal charges, 21.8 grams of recreational marijuana should have been returned to the owner under H&S Code § 11473.5 because at the time the marijuana was seized, the petitioner lawfully possessed the marijuana under California law in that he was over 21 years of age and the amount was less than 28.6 grams. There is no positive conflict between California law and the federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.) such that the two cannot consistently stand together. The San Francisco Police Department is immune from federal prosecution under the Controlled Substances Act when complying with California’s return provisions. “A controlled substance is ‘lawfully possessed’ under this section if it is lawfully possessed under California law.” (pgs. 4-5, citing City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355, 380.)

In fact, taking or destroying a person’s lawful medical marijuana may provide the patient with a cause of action in civil court for the unlawful taking. (See County of Butte v. Superior Court [Williams] (2009) 175 Cal.App.4th 729.)

But if the trial court does not return the marijuana to the defendant (i.e., after dismissal of the case), there can be no appeal from the court’s refusal to return it. There is no statutory procedure for such an appeal. The proper remedy is through a petition to the appellate court for a write of mandate. (People v. Hopkins (2009) 171 Cal.App.4th 305.)

Probationary and Parole Conditions:

A court may make it a condition of probation that a defendant not possess or use marijuana. (People v. Bianco (2001) 93 Cal.App.4th 748.)

A federal district court does not abuse its discretion in refusing to modify a defendant’s conditions of probation to allow him to possess and use medical marijuana. A congressional appropriations rider that prohibits the DOJ from using certain funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws does not impact the ability of a federal district court to restrict the use of medical marijuana as a condition of probation. (United States v. Nixon (9th Cir. 2016) 839 F.3rd 885.)

Such a condition, however, must bear a reasonable relationship to the crimes of which he was convicted and/or also to his future criminality. (People v. Berry (2006) 146 Cal.App.4th 20.)

A probation condition that merely prohibits the possession or use of a controlled substance “unless prescribed by a physician” does not preclude the use of marijuana for medicinal purposes when authorized or recommended by a physician, per H&S § 11362.5(d). (People v. Tilehkooh (2004) 113 Cal.App.4th 1433.)

However, in federal court, where defendant, upon his release prison on federal charges and placed on supervised release, agreed to certain mandatory conditions including that he “[r]efrain from any unlawful use of a controlled substance,” using marijuana constituted a violation. Federal law does not recognize California’s rule that such use is lawful upon the recommendation of a physician. (United States v. Harvey (9th Cir. 2011) 659 F.3rd 1272, adopting the factual description and legal rulings of the District Court judge at 794 F.Supp.2nd 1103.)

Marijuana is a federally controlled substance. (21 U.S.C. §§ 802(6), 812(c)) Manufacturing marijuana violates the Controlled Substances Act. (21 U.S.C. § 841(a)(1)), and is a felony offense (21 U.S.C. § 841(b)(1)(C)) The Controlled Substances Act defines manufacturing as, in relevant part, “the production, preparation, propagation, compounding, or processing of a drug or other substance.” (21 U.S.C. § 802(15)) “Production” is defined as “the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.” (21 U.S.C. § 802(22)) (See Dominquez v. Barr (9th Cir. 2020) 975 F.3rd 725, 739.)

Requiring defendant, who was convicted of the illegal possession of a firearm, to surrender his marijuana ID card and to not use marijuana as a condition of his probation, held to be lawful. People v. Moret (2009) 180 Cal.App.4th 839.)

A probation condition prohibiting the use or possession of medical marijuana is valid where the restriction is reasonably related to the defendant’s criminal offense. (People v. Brooks (2010) 182 Cal.App.4th 1348; People v. Hughes (2012) 202 Cal.App.4th 1473, 1479-1481.)

Although the medical use of marijuana may be considered by a trial court in establishing the terms and conditions of probation under Proposition 36 (P.C. §§ 1210, 1210.1, 3063.1, and H&S §§ 11999.4 et seq.), and in crafting the treatment to be provided, the authorized use of medical marijuana did not by itself make a nonviolent drug offender unamenable to the treatment mandated by Proposition 36. There was no requirement in Proposition 36 that a defendant recover from an addiction not factually established, or that a defendant abstain from all controlled substances, even those for which an established medical need existed and for which a physician had legally prescribed. In the instant case, there was insufficient evidence to support a finding that defendant was personally unamenable to treatment or that his medical marijuana use meant he was in danger of future criminality. (People v. Beaty (2010) 181 Cal. App.4th 644.)

A government entity has the necessary compelling interest to justify the denial of a convicted drug felon’s use of medical marijuana during supervised release from prison, despite his claimed exemption under the Religious Freedom Restoration Act (RFRA). (United States v. Lafley (9th Cir. 2011) 656 F.3rd 936.)

The defendant's casual use of marijuana, having no substantiated relationship to the theft of a car, under People v. Lent (1975) 15 Cal.3rd 481, the Appellate Court invalidated the trial court imposed marijuana-related conditions of probation. “What is missing is some indication that [defendant] is predisposed or more likely to commit crimes when under the influence of marijuana.” (People v. Cruz (Aug. 24, 2020) __ Cal.App.5th __ [2020 Cal.App. LEXIS 873].)

H&S §§ 11362.7 et seq.; Medical Marijuana Program Act; SB 420: Effective January 1, 2004, and as amended on November 9, 2016 and/or June 27, 2017, the following legislation was enacted, fine-tuning and defining some of the provisions and terms of Proposition 215, as well as providing for an “identification card,” authorizing the possession, cultivation, transportation or use of marijuana for medicinal purposes.

Commonly known as the “Medical Marijuana Program Act” (“MMPA,” Stats. 2003, ch. 875, § 1, SB 420, effective January 1, 2004 (and amended on June 27, 2017, SB 94), these new sections were intended to:

Clarify the scope of the application of the Compassionate Use Act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.

Promote uniform and consistent application of the Compassionate Use Act among the counties within the state.

Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.

(People v. Urziceanu (2005) 132 Cal.App.4th 747, 783; People v. Hochanadel (2009) 176 Cal.App.4th 997, 1007-1008.)

Case Law:

The provisions of H&S §§ 11362.7 et seq. are to be applied retroactively, to any cases still pending at the time of passage (1/1/04). (People v. Frazier (2005) 128 Cal.App.4th 807, 825-827; (People v. Urziceanu (2005) 132 Cal.App.4th 747, 782-786; People v. Wright (2006) 40 Cal.4th 81, 95-98.)

H&S § 11362.7 (Amended June 27, 2017): Relevant Definitions: For purposes of this article, the following definitions shall apply:

(a) “Attending physician” means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the medical use of cannabis is appropriate.

Case law:

The Ninth Circuit Court of Appeal has upheld an injunction prohibiting the federal government from enforcing a policy that threatened to punish doctors for recommending medical marijuana to their patients. (Conant v. Walters (9th Cir. 2002) 309 F.3rd 629.)

(b) “Department” means the State Department of Public Health.

(c) “Person with an identification card” means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article.

(d) “Primary caregiver” means the individual, designated by a qualified patient, who has consistently assumed responsibility for the housing, health, or safety of that patient, and may include any of the following:

(1) In a case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to H&S §§ 1200 et seq. (Division 2, Chapter 1), a health care facility licensed pursuant to H&S §§ 1250 et seq. (Division 2, Chapter 2), a residential care facility for persons with chronic life-threatening illness licensed pursuant to H&S §§ 1568.01 et seq. (Division 2, Chapter 3.01), a residential care facility for the elderly licensed pursuant to H&S §§ 1569 et seq. (Division 2, Chapter 3.2), a hospice, or a home health agency licensed pursuant to H&S §§ 1725 et seq. (Division 2, Chapter 8), the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card.

(2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver.

(3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card.

Case law:

See People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009-1011, discussing the legal requirements for a “primary caregiver” and a medical marijuana “collective” or “cooperative.”

Note the Court’s approval of a jury instruction defining a “primary caregiver” in the terms of H&S § 11362.5(e) (People v. Frazier (2005) 128 Cal.App.4th 807, 822-823; an offense occurring prior to enactment of H&S § 11362.7.)

A person who does no more than supply another with marijuana and occasionally visit him does not qualify as a “caregiver.” (People v. Windus (2008) 165 Cal.App.4th 634.)

A city may not enact a local ordinance entirely prohibiting the operation of medical marijuana dispensaries based upon federal law. (Qualified Patients Association v. City of Anaheim (2010) 187 Cal.App.4th 734.)

Not decided was the corresponding issue of whether state law preempts local ordinances which attempt to completely ban marijuana dispensaries within a city’s or county’s boundaries.

To qualify as a “primary caregiver,” an individual must show that “he or she;

Consistently provided caregiving;
Independent of any assistance in taking medical marijuana;
At or before the time he or she assumed responsibility for assisting with medical marijuana.” (People v. Mentch (2008) 45 Cal.4th 274, 283.)

(e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Fam. Code §§ 6922, 7002, 7050, or 7120.

(f) “Qualified patient” means a person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article.

(g) “Identification card” means a document issued by the department that identifies a person authorized to engage in the medical use of cannabis and the person’s designated primary caregiver, if any.

(h) “Serious medical condition” means all of the following medical conditions:

(1) Acquired immune deficiency syndrome (AIDS).

(2) Anorexia.

(3) Arthritis.

(4) Cachexia.

(5) Cancer.

(6) Chronic pain.

(7) Glaucoma.

(8) Migraine.

(9) Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.

(10) Seizures, including, but not limited to, seizures associated with epilepsy.

(11) Severe nausea.

(12) Any other chronic or persistent medical symptom that either:

(A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the federal Americans with Disabilities Act of 1990 (Public Law 101-336).

(B) If not alleviated, may cause serious harm to the patient’s safety or physical or mental health.

(i) “Written documentation” means accurate reproductions of those portions of a patient’s medical records that have been created by the attending physician, that contain the information required by H&S § 11362.715(a)(2), and that the patient may submit as part of an application for an identification card.

H&S § 11362.71 (Amended June 27, 2017): Medical Cannabis Identification Cards:

(a)

(1) The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program.

(2) The department shall establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of an identification card issued by the department, until a cost-effective Internet Web-based system can be developed for this purpose.

(b) Every county health department, or the county’s designee, shall do all of the following:

(1) Provide applications upon request to individuals seeking to join the identification card program.

(2) Receive and process completed applications in accordance with H&S § 11362.72.

(3) Maintain records of identification card programs.

(4) Utilize protocols developed by the department pursuant subdivision (d)(1).

(5) Issue identification cards developed by the department to approved applicants and designated primary caregivers.

(c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes cannabis.

(d) The department shall develop all of the following:

(1) Protocols that shall be used by a county health department or the county’s designee to implement the responsibilities described in subdivision (b), including, but not limited to, protocols to confirm the accuracy of information contained in an application and to protect the confidentiality of program records.

(2) Application forms that shall be issued to requesting applicants.

(3) An identification card that identifies a person authorized to engage in the medical use of cannabis and an identification card that identifies the person’s designated primary caregiver, if any. The two identification cards developed pursuant to this paragraph shall be easily distinguishable from each other.

(e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medicinal cannabis in an amount established pursuant to this article, unless there is probable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

(f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of H&S § 11362.5.

Case Law:

Per the California Attorney General’s opinion (88 Ops.Cal.Atty.Gen. 113 (2005) [Opinion No. 04-709].):

The statewide registry and identification card program for medical marijuana users preempts the operation of a city’s own registry and identification card program, but a city may adopt and enforce other ordinances consistent with the statewide program.

A city may continue to operate its own registry and identification card program for medical marijuana users until the statewide registry and identification card program is implemented in the county in which the city is located, except to the extent that the operation of the city’s program would be inconsistent with state law.

A county may not designate a city to perform the functions of the County Health Department under the statewide registry and identification card program for medical marijuana users.

The Fourth District Court of Appeal (Div. 1) has ruled that the counties have standing to challenge only those limited provisions of the MMPA that imposed specific obligations on the counties, such as the identification card provisions (H&S § 11362.71 et seq.), but may not broadly attack collateral provisions of California’s laws that imposed no obligation on, or inflicted any particularized injury to, the counties. The court interpreted 21 U.S.C. § 903 as preempting only those state laws that positively conflicted with the federal CSA so that simultaneous compliance with both sets of laws was impossible. Because the CSA law did not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California had opted not to impose criminal penalties did not positively conflict with the CSA and did not invalidate the identification laws under obstacle preemption. Further, because the MMPA’s identification card program had no impact on the protections provided by the CUA, those provisions were not invalidated by Cal. Consti., art II, § 10(c).. (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798.)

H&S § 11362.713 (Effective November 9, 2016): Disclosure of Medical Cannabis Patient’s Identifying Information:

(a) Information identifying the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, received and contained in the records of the State Department of Public Health and by any county public health department are hereby deemed “medical information” within the meaning of the Confidentiality of Medical Information Act (Civ. Code §§ 56 et seq.) and shall not be disclosed by the department or by any county public health department except in accordance with the restrictions on disclosure of individually identifiable information under the Confidentiality of Medical Information Act.

(b) Within 24 hours of receiving any request to disclose the name, address, or social security number of a patient, their medical condition, or the name of their primary caregiver, the State Department of Public Health or any county public health agency shall contact the patient and inform the patient of the request and if the request was made in writing, a copy of the request.

(c) Notwithstanding Civ. Code § 56.10, neither the State Department of Public Health, nor any county public health agency, shall disclose, nor shall they be ordered by agency or court to disclose, the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, sooner than the 10th day after which the patient whose records are sought to be disclosed has been contacted.

(d) No identification card application system or database used or maintained by the State Department of Public Health or by any county department of public health or the county's designee as provided in H&S § 11362.71 shall contain any personal information of any qualified patient, including, but not limited to, the patient's name, address, social security number, medical conditions, or the names of their primary caregivers. Such an application system or database may only contain a unique user identification number, and when that number is entered, the only information that may be provided is whether the card is valid or invalid.

H&S § 11362.715 (Amended June 27, 2017): Information Required for a Medical Cannabis Identification Card:

(a) A person who seeks an identification card shall pay the fee, as provided in H&S § 11362.755, and provide all of the following to the county health department or the county’s designee on a form developed and provided by the department:

(1) The name of the person and proof of his or her residency within the county.

(2) Written documentation by the attending physician in the person’s medical records stating that the person has been diagnosed with a serious medical condition and that the medicinal use of cannabis is appropriate.

(3) The name, office address, office telephone number, and California medical license number of the person’s attending physician.

(4) The name and the duties of the primary caregiver.

(5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity.

(b) If the person applying for an identification card lacks the capacity to make medical decisions, the application may be made by the person’s legal representative, including, but not limited to, any of the following:

(1) A conservator with authority to make medical decisions.

(2) An attorney-in-fact under a durable power of attorney for health care or surrogate decision maker authorized under another advanced health care directive.

(3) Any other individual authorized by statutory or decisional law to make medical decisions for the person.

(c) The legal representative described in subdivision (b) may also designate in the application an individual, including himself or herself, to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver.

(d) The person or legal representative submitting the written information and documentation described in subdivision (a) shall retain a copy thereof.

Case Law:

Defendant was not entitled to a hearing because California law made clear that defendant had no state law defense for his sales of approximately 85 kilograms of marijuana to out-of-state customers. (United States v. Kleinman (9th Cir. 2017) 859 F.3rd 825.)

H&S § 11362.72 (Effective January 1, 2004): Processing Identification Card Applications; Temporary Identification Cards:

(a) Within 30 days of receipt of an application for an identification card, a county health department or the county’s designee shall do all of the following:

(1) For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information.

(2) Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state.

(3) Contact the attending physician by facsimile, telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician’s office records. When contacted by a county health department or the county’s designee, the attending physician shall confirm or deny that the contents of the medical records are accurate.

(4) Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver, if any.

(5) Approve or deny the application. If an applicant who meets the requirements of H&S § 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time, so long as the applicant continues to meet the requirements of this paragraph.

(b) If the county health department or the county’s designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the department:

(1) A unique user identification number of the applicant.

(2) The date of expiration of the identification card.

(3) The name and telephone number of the county health department or the county’s designee that has approved the application.

(c) The county health department or the county’s designee shall issue an identification card to the applicant and to his or her designated primary caregiver, if any, within five working days of approving the application.

(d) In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application.

Case Law:

The identification card provisions of the California Medical Marijuana Program Act do not positively conflict with the federal Controlled Substances Act (“CSA;” 21 USC §§ 801-904) and also do not pose any added obstacle to the purposes of the CSA not inherent in the distinct provisions of the exemptions from prosecution under California’s laws. Therefore, these limited provisions are not preempted by federal law. (County of San Diego v. San Diego NORMAL (2008) 165 Cal.App.4th 798.)

In an action where counties argued that California’s Medical Marijuana Program Act was invalid under preemption principles, the counties had standing to challenge only those limited provisions that imposed specific obligations on the counties, such as requiring counties to adopt and operate the identification card system for persons qualified to claim the exemptions provided under California’s medical marijuana laws, and could not broadly attack collateral provisions of California’s laws that imposed no obligation on, or inflict any particular injury to, the counties. (Ibid.)

H&S § 11362.735 (Effective January 1, 2004): Numbering and Contents of Identification Card; Separate Card for Primary Caregiver:

(a) An identification card issued by the county health department shall be serially numbered and shall contain all of the following:

(1) A unique user identification number of the cardholder.

(2) The date of expiration of the identification card.

(3) The name and telephone number of the county health department or the county’s designee that has approved the application.

(4) A 24-hour, toll-free telephone number, to be maintained by the department, that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card.

(5) Photo identification of the cardholder.

(b) A separate identification card shall be issued to the person’s designated primary caregiver, if any, and shall include a photo identification of the caregiver.

Case Law:

The court presumed the validity of defendant’s medical marijuana card despite ample reason for doubt in that the prosecutor made no discernible effort to challenge the validity of the card as permitted under H&S §§ 11362.72(e) and 11362.735(a)(1)-(5). The court nevertheless found that it was proper to prohibit defendant’s medical marijuana use as a condition of his probation for possession with the intent to sell. (People v. Leal (2012) 210 Cal.App.4th 829.)

H&S § 11362.74 (Effective January 1, 2004): Grounds for Denial of Application; When Applicant May Reapply; Appeal to County Health Department:

(a) The county health department or the county’s designee may deny an application only for any of the following reasons:

(1) The applicant did not provide the information required by H&S § 11362.715, and upon notice of the deficiency pursuant to subdivision H&S § 11362.72(d), did not provide the information within 30 days.

(2) The county health department or the county’s designee determines that the information provided was false.

(3) The applicant does not meet the criteria set forth in this article.

(b) Any person whose application has been denied pursuant to subdivision (a) may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county’s designee or by a court of competent jurisdiction.

(c) Any person whose application has been denied pursuant to subdivision (a) may appeal that decision to the department. The county health department or the county’s designee shall make available a telephone number or address to which the denied applicant can direct an appeal.

H&S § 11362.745 (Effective January 1, 2004): Term of Identification Card; Annual Renewal; Transmittal of Determination:

(a) An identification card shall be valid for a period of one year.

(b) Upon annual renewal of an identification card, the county health department or its designee shall verify all new information and may verify any other information that has not changed.

(c) The county health department or the county’s designee shall transmit its determination of approval or denial of a renewal to the department.

H&S § 11362.755 (Amended; November 9, 2016): Provisions for Establishing Application and Renewal Fees:

(a) Each county health department or the county’s designee may charge fee for all costs incurred by the county or the county’s designee for administering the program pursuant to this article.

(b) In no event shall the amount of the fee charged by a county health department exceed one hundred dollars ($100) per application or renewal.

(c) Upon satisfactory proof of participation and eligibility in the Medical program, a Medical beneficiary shall receive a 50 percent reduction in the fees established pursuant to this section.

(d) Upon satisfactory proof that a qualified patient, or the legal guardian of a qualified patient under the age of 18, is a medically indigent adult who is eligible for and participates in the County Medical Services Program, the fee established pursuant to this section shall be waived.

(e) In the event the fees charged and collected by a county health department are not sufficient to pay for the administrative costs incurred in discharging the county health department’s duties with respect to the mandatory identification card system, the Legislature, upon request by the county health department, shall reimburse the county health department for those reasonable administrative costs in excess of the fees charged and collected by the county health department.

H&S § 11362.76 (Effective January 1, 2004): Responsibilities of an Identification Card Holder:

(a)

(1) Notify within seven (7) days the County Health Department of any change in the person’s attending physician or designated primary caregiver.

(2) Annually submit to the County Health Department the following:

(A) Updated written documentation of the person’s serious medical condition.

(B) The name and duties of the person’s designated primary caregiver, for the forthcoming year.

(b) Failure to comply with this section will result in the identification card for both the user and his/her primary caregiver being deemed expired.

(c) Upon a change in the primary caregiver, the prior primary caregiver must return his/her identification card.

(d) An owner or operator of a “clinic, facility, hospice, or home health agency” (See H&S § 11362.7(d)(1), above) must notify the County Department of Health upon a change in primary caregiver when the owner or operator, or an employee, is the designated primary caregiver.

H&S § 11362.765(a) (Amended June 27, 2017): Protection From Criminal Liability:

(a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under H&S §§ 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. This section does not authorize the individual to smoke or otherwise consume cannabis unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute cannabis for profit.

(b) Subdivision (a) shall apply to all of the following:

(1) A qualified patient or a person with an identification card who transports or processes cannabis for his or her own personal medical use.

(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away cannabis for medical purposes, in amounts not exceeding those established in H&S § 11362.77(a), only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.

(3) An individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medicinal cannabis to the qualified patient or person or acquiring the skills necessary to cultivate or administer cannabis for medical purposes to the qualified patient or person.

(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use cannabis under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under H&S § 11359 or 11360.

Case Law:

This section clarifies that a person who otherwise already qualifies as a primary caregiver, as defined in H&S § 11362.5, is protected from prosecution for administering, or advising and counseling in the administration or cultivation of medical marijuana. But it does not extend these protections to persons who are not already primary caregivers. (People v. Mentch (2008) 45 Cal.4th 274, 290-292.)

The legality of the transportation of marijuana by or for a qualified medical marijuana user must take into account whether the method, timing, and distance of the transportation were reasonably related to the patient’s current medical needs. An otherwise qualified medical marijuana patient is therefore not entitled to merely store his marijuana in his car as he drives around town for future use. (People v. Wayman (2010) 189 Cal.App.4th 215, 219-223.)

Nothing in this section or the MMPA mandates that local governments allow cultivation of marijuana within that government’s borders. A local ordinance prohibiting the cultivation of marijuana is not preempted by state law and is constitutional. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975.)

It was not error to hold that defendant’s conviction for cultivating marijuana under H&S § 11358 was not eligible for resentencing under Proposition 47 (P.C. § 1170.18(a)) The omission of section 11358 from the list of eligible offense for reduction to a misdemeanor did not violate defendant’s state and federal constitutional rights to equal protection. Defendant failed to establish that he was similarly situated with the non-violent drug offenders who are eligible for resentencing under Prop. 47. (People v. Descano (2016) 245 Cal.App.4th 175.)

Note also V.C. § 23222(b)(1) Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in V.C. § 23220(b), any receptacle containing any cannabis or cannabis products, as defined by H&S Code § 11018.1, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).” (See also Veh. Code §§ 23220, 23221, and 23222, below, relative to cannabis in vehicles.)

See also Veh. Code § 23229, where it exempts a passenger (i.e., someone other than the driver) in a bus, taxicab, limousine, housecar or camper, or pedicab, as specified, from the prohibition for drinking alcohol. Effective January 1, 2020, the section was amended to where it no longer exempts passengers consuming cannabis or cannabis products.

H&S § 11362.768 (Amended June 27, 2017): Restrictions on Proximity of Cannabis Cooperatives, Etc., to Schools:

(a) This section shall apply to individuals specified in H&S § 11362.765(b).

(b) No medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or distributes medicinal cannabis pursuant to this article shall be located within a 600-foot radius of a school.

(c) The distance specified in this section shall be the horizontal distance measured in a straight line from the property line of the school to the closest property line of the lot on which the medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider is to be located without regard to intervening structures.

(d) This section shall not apply to a medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider that is also a licensed residential medical or elder care facility.

(e) This section shall apply only to a medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medicinal cannabis and that has a storefront or mobile retail outlet which ordinarily requires a local business license.

(f) Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider.

(g) This section does not preempt local ordinances, adopted prior to January 1, 2011, that regulate the location or establishment of a medicinal cannabis cooperative, collective, dispensary, operator, establishment, or provider.

(h) For the purposes of this section, “school” means any public or private school providing instruction in kindergarten or any of grades 1 to 12, inclusive, but does not include any private school in which education is primarily conducted in private homes.

Case Law:

Broadly defining a medical marijuana business under L.A. Municipal Code § 45.19.6.1A to include any medical marijuana facility was within the city’s authority under H&S §§ 11362.768(f) and 11362.83, and encompassed a medical marijuana collective that distributed marijuana only to members. In this nuisance abatement action, the trial court did not err in issuing preliminary injunction against the collective’s continuing operation in violation of L.A. Municipal Code § 45.19.6.1A because a likelihood of prevailing on the merits was shown, public harm was presumed from the violation, the evidence did not demonstrate that grave irreparable harm would result from the injunction in light of a member’s declaration indicating other sources of medical marijuana were available, and the injunction did not limit freedom of speech or association. (People ex rel. Feuer v. FXS Management, Inc. (2016) 2 Cal.App.5th 1154.)

Convicted of violating LAMC § 45.19.6.2A by owning and operating a medical marijuana dispensary within 1,000 feet to the south of Hollywood High School and within 600 feet to the north of the Little Red Schoolhouse child care facility, in violation of the statute, defendants claimed the judgment should be reversed because they “substantially complied” with the requirements needed to obtain limited immunity from prosecution. The Appellate Department of the Superior Court disagreed and affirmed, ruling that: “The clear terms of the ordinance indicate strict compliance with the immunity provisions was required” and “[a]llowing immunity for an MMB (medical marijuana business) that ‘substantially complies’ with the requirement that it not be located closer than 1,000 feet of schools and closer than 600 feet of child care facilities would increase the risk of marijuana exposure to a child attending those institutions and thereby undermine the intent of the ordinance.” (People v. CHR Herbal Remedies (2017) 12 Cal.App.5th Supp. 26.)

Michael Braum leased two commercial properties in the City of Los Angeles (City) to tenants for use as medical-marijuana dispensaries and then received notice that the dispensaries violated the City's zoning code. The City filed two civil enforcement actions against Braum and the Trust, and the trial court entered judgments against them imposing civil fines in excess of $6 million. Defendants appeal from the judgments, arguing that (1) the judgments violated the double jeopardy clauses because the City had previously obtained a criminal conviction against Braum based on the same offenses underlying the judgments, (2) the $6 million in civil fines violated the excessive fines clauses of the federal and state constitutions, (3) neither the trial court nor the City had the authority to require Braum to evict the dispensaries, and (4) the City’s “maze” of medical-marijuana regulations were void for vagueness under the due process clause; and the trial court erred in holding Braum personally liable. The Appellate Court rejected all these arguments. Double jeopardy was not offended where defendant was prosecuted both criminally and civilly for medical marijuana dispensary ordinance violations. A nearly $6 million fine was not excessive under the Eighth Amendment, and defendant was properly held personally financially liable. The City of Los Angeles's medical marijuana regulations were not void for vagueness. (People v. Braum (Apr. 22, 2020) __ Cal.App.5th __ [2020 Cal.App. LEXIS 446].)

See “Issue; Preemption,” dealing with the power of counties and municipalities to regulate, or even forbid totally, marijuana dispensaries, under H&S § 11362.775, below.

H&S § 11362.769 (Amended; June 27, 2017): Compliance with State and Local Environmental Regulations:

Indoor and outdoor medical cannabis cultivation shall be conducted in accordance with state and local laws. State agencies, including, but not limited to, the Department of Food and Agriculture, the State Board of Forestry and Fire Protection, the Department of Fish and Wildlife, the State Water Resources Control Board, the California regional water quality control boards, and traditional state law enforcement agencies shall address environmental impacts of medical cannabis cultivation and shall coordinate, when appropriate, with cities and counties and their law enforcement agencies in enforcement efforts.

Case law:

An administrative penalty for violating a city ordinance, dealing with the cultivation of more marijuana plants than allowed, and which exceeded the $25,000 cap for limited civil cases, may be challenged in a de novo appeal to the superior court because the limited civil case classification in Gov. Code § 53069.4(b)(1), was a default classification under Code Civ. Proc. § 85(c)(14), and did not preclude the action from being brought as an unlimited civil case, nor did it imply any lack of superior court authority under Code Civ. Proc. § 89(a), but simply reflected the unification of the municipal and superior courts. The judgment could not be affirmed on the basis of insufficient prejudice for reversal because the superior court’s error in determining de novo review was unavailable entirely foreclosed such review, which might have differed from an administrative mandate proceeding with a more deferential standard. (Wang v. City of Sacramento Police Department (Aug. 30, 2021) __ Cal.App.5th __ [2021 Cal.App. LEXIS 716].)

H&S § 11362.77 (Amended; Effective June 27, 2017): Restrictions on Amounts of Medical Cannabis or Plants That May be Possessed:

(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried cannabis per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature cannabis plants per qualified patient.

(b) If a qualified patient or primary caregiver has a physician’s recommendation that this quantity does not meet the qualified patient’s medical needs, the qualified patient or primary caregiver may possess an amount of cannabis consistent with the patient’s needs.

(c) Counties and cities may retain or enact medicinal cannabis guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).

(d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of cannabis under this section.

(e) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of cannabis consistent with this article.

Case Law:

This particular section was held to have been enacted by the Legislature in violation of the California Constitution as an attempt to amend an initiative, which, pursuant to Cal. Const. art. II, § 10, subd. (c), the Legislature cannot do. As a result, to the extent that section 11362.77 “burdens the defense” by changing the amount of marijuana that may be possessed from that which is “reasonably related to the patient’s current medical needs” to a specific statutory amount absent a doctor’s authorization, 11362.77 is unconstitutional and unenforceable. (People v. Kelly (2010) 47 Cal.4th 1008; see also Littlefield v. County of Humboldt (2013) 218 Cal. App. 4th 243, 252-253.)

See also People v. Archer (2009) 179 Cal.App.4th 298, where the parties stipulated to the unconstitutionality of the Legislature’s attempts to establish specific amounts of marijuana that may be possessed. However, review was granted in Archer, making this case unavailable for citation.

Where a person needs more marijuana than the presumptive limits, it is not necessary that that fact be specified in the physician’s recommendation, at least so long as the physician is able to testify at trial as to the amount that is appropriate for defendant. (People v. Windus (2008) 165 Cal.App.4th 634.)

Despite defendant’s testimony that he was engaged in permissible medical use of marijuana, and his possession of a medical marijuana ID card, evidence presented at trial was sufficient to uphold defendant’s conviction for unlawful transportation of marijuana and possessing marijuana for sale. Defendant had over 2 ounces of marijuana in his car during a lawful traffic stop, which included 17.2 grams in one bag on his person, 10 bags of 3 grams each in the driver’s door, and 3 bags of 6.5 grams in the backseat. He also had $21 in cash, carried a WD-40 can with a hidden compartment containing marijuana residue, and wore a belt buckle that read, “CA$H ONLY.” There was nothing in the car that could be used for ingesting marijuana. It was also shown that he was spending more money than he was earning as a part-time babysitter and that he was on probation for a prior conviction for possession of marijuana for sale. The arresting officer testified that in his expert opinion, defendant possessed the marijuana to sell it. (People v. Dowl (2013) 57 Cal.4th 1079, 1085-1094.)

The issue of whether the officer wasn’t properly qualified as an expert in that he did not testify to having had sufficient experience in the lawful use of medical marijuana was forfeited because the defendant did not object to the officer’s qualifications when he testified at trial. The Court held, however, that despite this insufficiency, there was enough other evidence to sustain defendant’s conviction. (Id. a pp.1083- 1089.)

H&S § 11018 provides a broader definition of “marijuana” (now “cannabis”) than is described under H&S Code § 11362.77(d), defining marijuana as including all parts of the plant, with some exceptions such as the stalks and certain types of seed derivatives. The more restrictive definition as provided under Subd. (d) applies only when the defendant attempts to take advantage of the “safe harbor” provisions of the Medical Marijuana Program Act [38] that allow patients who suffer from serious medical conditions to voluntarily obtain medical marijuana identification cards which provide them protection from arrest. (People v. Orlosky (2015) 233 Cal.App.4th 257, 276-278.)

The Court also rejected defendant’s argument that the jury should have been instructed on the theory of “mistake of fact,” ruling that “factors such as the potential yield from the plants and the amount medically needed by defendant were not presented as actual facts that defendant could have misperceived to potentially relieve him of culpability; rather, they were presented as opinions and matters that could vary depending on the circumstances.” (Id., at pp. 274-276.)

H&S § 11362.775 (Amended; Effective June 27, 2017): Protections from Criminal Liability for Cannabis Collectives or Cooperatives:

(a) Subject to subdivision (d), qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medicinal purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under H&S §§ 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

(b) A collective or cooperative that operates pursuant to this section and manufactures medicinal cannabis products shall not, solely on the basis of that fact, be subject to state criminal sanctions under H&S § 11379.6 if the collective or cooperative abides by all of the following requirements:

(1) The collective or cooperative does either or both of the following:

(A) Utilizes only manufacturing processes that are either solventless or that employ only nonflammable, nontoxic solvents that are generally recognized as safe pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.).

(B) Utilizes only manufacturing processes that use solvents exclusively within a closed-loop system that meets all of the following requirements:

(i) The system uses only solvents that are generally recognized as safe pursuant to the federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.).

(ii) The system is designed to recapture and contain solvents during the manufacturing process, and otherwise prevent the off-gassing of solvents into the ambient atmosphere to mitigate the risks of ignition and explosion during the manufacturing process.

(iii) A licensed engineer certifies that the system was commercially manufactured, safe for its intended use, and built to codes of recognized and generally accepted good engineering practices, including, but not limited to, the American Society of Mechanical Engineers (ASME), the American National Standards Institute (ANSI), Underwriters Laboratories (UL), the American Society for Testing and Materials (ASTM), or OSHA Nationally Recognized Testing Laboratories (NRTLs).

(iv) The system has a certification document that contains the signature and stamp of a professional engineer and the serial number of the extraction unit being certified.

(2) The collective or cooperative receives and maintains approval from the local fire official for the closed-loop system, other equipment, the extraction operation, and the facility.

(3) The collective or cooperative meets required fire, safety, and building code requirements in one or more of the following:

(A) The California Fire Code.

(B) The National Fire Protection Association (NFPA) standards.

(C) International Building Code (IBC).

(D) The International Fire Code (IFC).

(E) Other applicable standards, including complying with all applicable fire, safety, and building codes in processing, handling, and storage of solvents or gasses.

(4) The collective or cooperative is in possession of a valid seller’s permit issued by the State Board of Equalization.

(5) The collective or cooperative is in possession of a valid local license, permit, or other authorization specific to the manufacturing of medicinal cannabis products, and in compliance with any additional conditions imposed by the city or county issuing the local license, permit, or other authorization.

(c) For purposes of this section, “manufacturing” means compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, medicinal cannabis products.

(d) This section shall remain in effect only until one year after the Bureau of Cannabis Control posts a notice on its Internet Web site that the licensing authorities have commenced issuing licenses pursuant to the Medicinal and Adult-Use Cannabis Regulation and Safety Act; Bus. & Prof. Code §§ 26000 et seq. (Division 10)

(e) This section is repealed one year after the date upon which the notice is posted pursuant to subdivision (d).

Case Law:

This section was held not to be an unconstitutional amendment to the CUA. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1012-1014.)

It was also held in Hochanadel, supra, at pp. 1016-1020, that to qualify as a “collective” or “cooperative,” the organization in question, aside from having to file articles of incorporation with the state, must conduct its business for the mutual benefit of its members. It must be jointly owned and operated by the members of the group. As such, it must be an organization that merely facilitates the collaborative efforts of patient and caregiver members, including the allocation of costs and revenues. Lastly, it must not purchase marijuana from, nor sell to, non-members. The dispensary at issue in this case sold marijuana to purchasers who had no other relationship with the organization than as mere purchasers. Also, at least part of the marijuana it sold came from an outside source. Third, as appeared at the time of the issuance of the search warrant at issue, the inflated price of the marijuana and the cash-only nature of the business, along with an apparent large number of transactions, all tended to indicate that the organization was not operating as a nonprofit enterprise. As such, it did not qualify as a collective or cooperative.

Defendant was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. Assuming that defendant’s medical marijuana dispensary was not operated for profit, and accepting defendant’s testimony that all members were qualified medical marijuana patients, the fact the dispensary had a large membership did not prevent defendant from offering a defense under H&S § 11362.775. (People v. Jackson (2012) 210 Cal.App.4th 525, 533-539.)

A lawful cooperative or collective under H&S § 11262.775 may consist of some patient members who grow marijuana and other patient members who compensate the growers with money in exchange for marijuana. Failure to instruct the jury accordingly was prejudicial error under the circumstances of this case. Section 11362.775’s specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medical marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana. This law abrogates cases taking a restrictive view of the activities allows by the Compassionate Use Act. (People v. Anderson (2015) 232 Cal.App.4th 1259.)

A defendant is entitled to present a medical marijuana cultivation defense when he grows marijuana with another person. Where charged with his roommate with cultivating marijuana, it was error for the trial court to refuse to instruct the jury on the medical marijuana collective cultivation defense. The trial court judge ruled that “a collective requires records, agreements, and not just two guys hanging out together.” The Appellate Court disagreed. Qualified patients can collectively or cooperatively cultivate marijuana for medical purposes. A defendant need only raise a reasonable doubt about the existence of this defense. Once this burden is met, the judge must instruct the jury accordingly. The absence of business formality does not preclude submitting the defense to the jury for its consideration. (People v. Orlosky (2015) 233 Cal.App.4th 257, 266-274.)

However, H&S Code § 11362.5(b)(1)(A) does not authorize the establishment of a marijuana collective under the guise of being a medical office, merely because the marijuana is intended to be used to treat the sick. The issue is whether a city properly determined that a medical marijuana collective in a commercial zoning district was not an authorized use of the subject property, ordering the collective to close. The Court held that the medical office use category in the municipal code did not include medical marijuana collectives. Because defendants’ medical marijuana collective was not a permitted use when it opened, it did not qualify as a legal non-conforming use. Also, the City could not be equitably estopped from enforcing the municipal code because reliance on delayed enforcement was not reasonable, because reliance on payment of taxes was not reasonable, and because the city’s fundamental interest in locally determining where medical marijuana collectives were authorized outweighed the potential impacts to defendants. (J. Arthur Properties, II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480.)

Note also V.C. § 23222(b(1): Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in V.C. § 23220(b), any receptacle containing any cannabis or cannabis products, as defined by H&S Code § 11018.1, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).” (See also Veh. Code §§ 23220, 23221, and 23222, below, relative to cannabis in vehicles.)

Claiming to be a marijuana cooperative or collective, per H&S § 11362.775, without substantial evidence to support such a claim, does not supply defendant with a defense to selling marijuana. No such evidence exists, sufficient to raise a reasonable doubt, where the operation was not registered as a nonprofit, the financial records were not complete, and there was no accounting of total income and expenses. Further, defendant kept all the profits from the operation, as opposed to merely taking a salary. Also, there was no accountability to its members who paid for the marijuana from which the profits were derived. (People v. Solis (2013) 217 Cal.App.4th 51, 56-61.)

A person who does not have a medical license or certificate may be criminally charged with practicing medicine without a license in violation of Bus. & Prof. Code § 2052 for owning a corporation that operates a medical marijuana clinic in which licensed physicians examine the patients and issue medical marijuana recommendations to patients. (People v. Superior Court [Cardillo] (2013) 218 Cal.App.4th 492, 496-498.)

Defendant’s nonprofit corporation, which entered into two agreements to provide marijuana to a collective of which he was a member, for an expected profit of up to $60,000 annually, was not protected by H&S § 11262.775 in that defendant did not have a “caregiver” relationship with any other person in the collective. His conviction was not based upon collective or cooperative action by itself. He had grown the marijuana without assistance from anyone in the collective. And the marijuana he cultivated was far in excess of any amount that might reasonably be necessary for his own personal medical use. (People v. Mitchell (2014) 225 Cal.App.4th 1189, 1203-1208.)

Defendant, found guilty of possessing marijuana for sale, was entitled to a defense under the Medical Marijuana Program Act where he had a physician’s recommendation to use medical marijuana, started a medical marijuana cooperative and set it up as a not-for-profit corporation, acquired a seller’s license from the State Board of Equalization, did not make a profit on marijuana sold to qualified patients, and the money provided in exchange for marijuana was given to the growers to reimburse them for their costs. The defendant argued he did nothing illegal because he was a qualified patient whose physician recommended his use of medical marijuana, he formed a lawful medical marijuana collective and he operated, the collective in compliance with the MMPA and the Attorney General’s guidelines. Refusal to allow this defense was error. (People v. Baniani (2014) 229 Cal.App.4th 45, 52-61.)

In a prosecution of defendant for cultivation of marijuana and possession of marijuana for sale, although the trial court’s jury instructions did not accurately state the law applicable to defendant’s defense that he was lawfully cultivating marijuana under the Medical Marijuana Programs Act, the errors were not prejudicial because the evidence was insufficient as a matter of law to raise a reasonable doubt defendant was not earning a profit on his medical marijuana cultivation operation. (People v. London (2014) 228 Cal.App.4th 544, 551-556.)

Defendants, who were convicted of operating an unlawful medical marijuana business in violation of L.A. Mun. Code, § 45.19.6.2, subd. A, did not satisfy L.A. Mun. Code, § 45.19.6.3, subd. B, because they failed to provide the city with all the materials necessary to show their storefront business was open for business as of the effective date of City of Los Angeles Interim Control Ordinance No. 179,027—an ordinance that previously regulated the operation of medical marijuana businesses. Defendants also did not satisfy L.A. Mun. Code, § 45.10.6.3, subd. O, for purposes of presenting its limited immunity affirmative defense because their business was located within 600 feet of another medical marijuana business, and that condition disqualified them even though the other business was not itself entitled to assert statutory immunity. (People v. Trinity Holistic Caregivers, Inc. (2015) 239 Cal.App.4th Supp. 9.)

Issue; Preemption: Does a local county or municipality have the legal power to restrict, regulate, or even totally prohibit, marijuana dispensaries?

Lower appellate court opinions have held that neither the CUA nor the MMPA preempt either local zoning permit requirements or temporary moratoriums on the operation of medical marijuana dispensaries. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153; County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.)

Under this section, a county is authorized to regulate medical marijuana dispensaries (MMDs). The county’s constitutional authority to regulate the particular manner and location in which a business may operate is unaffected by H&S § 11362.775. The limited statutory immunity from prosecution under the “drug den” abatement law provided by section 11362.775 does not prevent the county from applying its nuisance laws to MMDs that did not comply with its valid ordinances. The evidence refuted defendants’ claim that MMDs were zoned so as to relegate them to remote and commercially infeasible locations. The court found unpersuasive defendants’ argument that the county ordinances violated the equal protection clause of Cal. Const., art I, § 7, by not allowing MMDs to operate in the same zones as pharmacies. The county’s concern with dispensaries attracting an illegal resale market for marijuana was justified in light of the use of marijuana for nonmedical purposes. Because similar risks were not associated with the location of pharmacies, the county had a rational basis for zoning MMDs differently than pharmacies. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861.)

The ban on cultivation adopted under Fresno County’s authority to regulate land use does not conflict with the CUA or the MMP, which do not expressly restrict local government’s authority over land use. As to implicit restrictions, the Court recognized the statutory provisions contain some ambiguities, but applicable legal principles require a clear indication of the Legislature’s intent to restrict local government’s inherent power to regulate land use. The ambiguous provisions fail to provide that clear indication. The Court therefore uphold Fresno County’s ban on marijuana dispensaries, cultivation and storage of medical marijuana. (Kirby v. County of Fresno (2015) 242 Cal.App.4th 940.)

However, the Court concluded that the provision in the ordinance that classified the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation was not consistent with H&S § 11362.71(e), imposing on local officials the obligation of not arresting certain persons possessing or cultivating marijuana. Therefore, the Court held that the plaintiff stated a narrow cause of action challenging the validity of the criminalization provision. (Id., at pp. 943.)

Where defendant opened a medical marijuana dispensary within Palm Springs in violation of a municipal code ordinance requiring a permit to operate a marijuana dispensary, defendant filed for an injunction arguing that the city ordinance was preempted by federal law and, therefore, invalid and unenforceable. The Court of Appeal disagreed and affirmed: “The City’s regulatory program for medical marijuana dispensaries neither conflicts with federal law, nor stands as an obstacle to its purposes and objectives. As such, the trial court properly denied [defendant’s] request for an injunction against its enforcement.” (City of Palm Springs v. Luna Crest Inc. (2016) 245 Cal.App.4th 879, 884-886.)

But, does the federal Controlled Substances Act (CSA), which outlaws all marijuana production, distribution, and consumption, preempt local ordinances that allow the establishment of medical marijuana dispensaries?

It was held by the Fourth District Court of Appeal (Div. 3) that a city may not enact a local ordinance entirely prohibiting the operation of medical marijuana dispensaries based upon federal law. (Qualified Patients Association v. City of Anaheim (2010) 187 Cal.App.4th 734.)

Also, the Division 1 of the Fourth District Court of Appeal has ruled that the counties have standing to challenge only those limited provisions of the MMPA that imposed specific obligations on the counties, such as the identification card provisions (H&S § 11362.71 et seq.), but may not broadly attack collateral provisions of California’s laws that imposed no obligation on, or inflicted any particularized injury to, the counties. The court interpreted 21 U.S.C. § 903 as preempting only those state laws that positively conflicted with the federal CSA so that simultaneous compliance with both sets of laws was impossible. Because the CSA law did not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California had opted not to impose criminal penalties did not positively conflict with the CSA and did not invalidate the identification laws under obstacle preemption. Further, because the MMPA’s identification card program had no impact on the protections provided by the CUA, those provisions were not invalidated by Cal. Consti., art II, § 10(c).. (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798.)

The appellate court held that provisions of the Los Angeles municipal code (i.e., LAMC section 45.19.6.2), which make it a misdemeanor for persons to establish, or operate, or participate in unlicensed commercial cannabis establishments, are not unconstitutionally vague. Simply put, if a commercial cannabis establishment does not have a license, it is unlawful to engage in any of the provisions' enumerated activities. Defendant was not entitled to dismissal based on the provisions being unconstitutional. Because the crimes constitute public welfare offenses, the prosecution is not required to prove the accused either knew the businesses were unlicensed or had the intent to operate them without a license. The trial court did not err when it found defendant could be convicted of violating the ordinances without requiring the prosecution to prove knowledge or intent. (People v. Gonzalez (July 7, 2020) __ Cal.App. Supp. __ [2020 Cal.App. LEXIS 765].)

Issue: May local government completely and permanently ban medical marijuana dispensaries?

A conflict in the lower court decisions was resolved by the California Supreme Court in City of Riverside v. Inland Empire Patients Health and Wellness Center (2013) 56 Cal.4th 729. The Court held that neither the Compassionate Use Act (CUA; H&S § 11362.5) nor the Medical Marijuana Program (MMP; H&S §§ 11362.7 et seq.) expressly or impliedly preempt a city’s zoning provisions declaring a medical marijuana dispensary to be a prohibited use and a public nuisance anywhere within the city limits. The CUA and the MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. They merely declare that the conduct they describe cannot lead to arrest or conviction, or be abated as a nuisance, as violations of enumerated provisions of the California Health and Safety Code. Neither the CUA nor the MMP establish a comprehensive state system of legalized medical marijuana, grant a “right” of convenient access to marijuana for medicinal use, override the zoning, licensing, and police powers of local jurisdictions, nor mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries. (Id., at pp. 742-763.)

City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, as modified on Mar. 29, 2012; 2012 Cal.App. LEXIS 367, which held to the contrary, was sent back to the Fourth District Court of Appeal by the Supreme Court to be reconsidered in light of the above.

The City of Agoura Hills cross south an order enjoining plaintiff from distribution marijuana. The Superior Court’s ruling accordingly was upheld by the Appellate Court. The definition of “medical marijuana dispensary” in Agoura Hills Mun. Code, ordinance nos. 8-355 and 10-379 were broad enough to include plaintiff’s dispensary. The ordinances were not preempted by the Compassionate Use Act of 1996 (H&S § 11362.5) or the Medical Marijuana Program Act of 2003 (H&S §§ 11362.7 et seq.) The permit requirements of ordinance no. 10-379 did not violate substantive or procedural due process. Because plaintiff’s operation of a collective medical marijuana dispensary was always unlawful, it was not entitled to the constitutional protections afforded property owners or lessees engaged in lawful existing nonconforming uses. The city's ordinances did not violate plaintiff's members’ rights to privacy and freedom of association under the California Constitution. (Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534.)

The City of Monterey’s petition for a permanent injunction was upheld based upon the following: The respondent’s dispensary was a nuisance per se under Monterey City Code (MCC) § 38.22(A) becaue it was not a commercial use allowed under MMC § 38-29. A medical marijuana dispensary under H&S § 11362.775 was not a business providing personal services under MMC § 38.15(X) or making retail sales under § 38-15(Z). It also did not fall into the pharmacy category under § 38-15(Z)(2) because it was not licensed as a pharmacy under B&P Code § 4037(a) and did not fill prescriptions as defined in B&P Code § 4040(a). Because the dispensary was never lawfully operated, the moratorium was not retroactively applied to an existing lawful business.

Plaintiffs challenged a city ordinance that allowed only medical marijuana collectives that had previously registered under an interim ordinance that required such registration. The Court here found no violation of equal protection under the Fourteenth Amendment and Cal. Const., art I, § 7, subd. (a). The city may reasonably have determined that previous registration was a valid predictor of future law-abiding behavior. (420 Caregivers LLC v. City of Los Angeles (2012) 207 Cal.App.4th 703.)

“State law permitting medicinal marijuana use and distribution does not preempt ‘the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions.’” (Urgent Care Medical Services v. City of Pasadena (Mar. 5, 2018) __ Cal.App.5th __, __ [2018 Cal. App. LEXIS 272]; quoting City of Vallejo v. NCORP4 Inc. (2017) 15 Cal.App.5th 1078, 1086.)

A medical marijuana dispensary operator’s causes of action seeking return of its seized marijuana plants survived demurrer, as the local ordinance restricting cannabis cultivation the dispensary was charged with violating ultimately regulated land use within the county, and it did not (nor could it) render illegal a substance that was legal under state law. The county’s demurrer to the cause of action entitled “preliminary and permanent injunction” was properly sustained, as injunctive relief was a remedy rather than a standalone cause of action. The causes of action for damages were time-barred under California’s Government Claims Act because at the time the operator filed suit, its corporate status was suspended by the secretary of state for failure to pay taxes, and its corporate status was not revived until after the six-month limitations period had expired. (Granny Purps, Inc. v. County of Santa Cruz (Aug. 5, 2020) __ Cal.App.5th __ [2020 Cal.App. LEXIS 728].)

A co-owner and operator of a properly licensed medical marijuana dispensary can legally invoke the protection from prosecution for transporting marijuana as provided in H&S § 11362.775, for taking marijuana from one dispensary to the other where the dispensaries meet all the legal requirements. (People v. Colvin (2012) 203 Cal.App.4th 1029.)

H&S § 11362.78 (Amended; Effective June 27, 2017): Presumptive Validity of a Medical Cannabis Identification Card:

A state or local law enforcement agency or officer shall not refuse to accept an identification card issued pursuant to this article unless the state or local law enforcement agency or officer has probable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.

H&S § 11362.785 (Amended; Effective June 27, 2017): Accommodation for Medical Use of Cannabis Not Required in a Place of Employment or Penal Institution; Medical Cannabis Identification Cards and Use in Penal Institutions; Non-Liability of Health Insurance:

(a) Nothing in this article shall require any accommodation of medicinal use of cannabis on the property or premises of a place of employment or during the hours of employment or on the property or premises of a jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.

(b) Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.

(c) This article does not prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use cannabis for medicinal purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.

(d) This article does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis.

Case Law:

P.C. § 4573.5, prohibiting the possession of “other than controlled substances” in a county jail, does not prohibit the bringing of medical marijuana, which is still a “controlled substance” even if lawfully possessed per H&S §§ 11362.5 and 11362.7, into a county jail. (People v. Harris (2006) 145 Cal.App.4th 1456; specifically leaving open the question whether P.C. § 4573, prohibiting the possession of controlled substances when possessed in violation of Division 10 of the Health and Safety Code in a correctional facility, is violated under these circumstances.)

H&S § 11362.79 (Amended; Effective June 27, 2017): Instances When Medical Cannabis Identification Card Does Not Authorize the Use of Medical Marijuana:

This article does not authorize a qualified patient or person with an identification card to engage in the smoking of medicinal cannabis under any of the following circumstances:

(a) In a place where smoking is prohibited by law.

(b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medicinal use occurs within a residence.

(c) On a school bus.

(d) While in a motor vehicle that is being operated.

(e) While operating a boat.

Case Law:

Employers have the right to undertake pre-employment drug testing “in light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees—increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover.” (Loder v. City of Glendale (1997) 14 Cal.4th 846; holding that the California Fair Employment and Housing Act does not require employers to accommodate the use of illegal drugs.)

Use of marijuana may be used as grounds for being fired by the patient’s employer, and is not a violation of California’s Fair Employment and Housing Act. (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920.)

However, random testing of current employees must be justified by compelling employer interests. Failure to articulate such interests may expose an employer to substantial damages in post-termination litigation claiming a violation of the right to privacy. (Seymore v. Pool (1990) 217 Cal.App.3rd 1087.)

H&S § 11362.795 (Amended; Effective June 27, 2017): Use of Medical Cannabis by Probationers, Parolees, and Persons on Release on Bail:

(a)

(1) Any criminal defendant who is eligible to use cannabis pursuant to H&S § 11362.5 may request that the court confirm that he or she is allowed to use medicinal cannabis while he or she is on probation or released on bail.

(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.

(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medicinal cannabis, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medicinal cannabis.

(4) The court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.

(b)

(1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medicinal cannabis pursuant to H&S § 11362.5 may request that he or she be allowed to use medicinal cannabis during the period he or she is released on parole. A parolee’s written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medicinal cannabis was made, and whether the request was granted or denied.

(2) During the period of the parole, where a physician recommends that the parolee use medicinal cannabis, the parolee may request a modification of the conditions of the parole to authorize the use of medicinal cannabis.

(3) Any parolee whose request to use medicinal cannabis while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.

(4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.

Case Law:

A court may make it a condition of probation that a defendant not possess or use marijuana. (People v. Bianco (2001) 93 Cal.App.4th 748.)

Such a condition, however, must bear a reasonable relationship to the crimes of which he was convicted and/or also to his future criminality. (People v. Berry (2006) 146 Cal.App.4th 20.)

H&S § 11362.8 (Amended; Effective June 27, 2017): Protection from Civil Penalties or Disciplinary Action Against a Licensee for Acting as a Primary Caregiver:

A professional licensing board shall not impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee’s role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to H&S § 11362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of cannabis to a patient. These discussions or recommendations, or both, shall be governed by H&S § 11362.5.

H&S § 11362.81 (Amended; Effective June 27, 2017): Fraudulent Use of, or Breach of Confidential Information Related to, Medical Cannabis Identification Cards; Penalties:

(a) A person specified in subdivision (b) shall be subject to the following penalties:

(1) For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars ($1,000), or both.

(2) For a second or subsequent offense, imprisonment in the county jail for no more than one year, or a fine not to exceed one thousand dollars ($1,000), or both.

(b) Subdivision (a) applies to any of the following:

(1) A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county’s designee, or state or local law enforcement agency or officer, for the purpose of falsely obtaining an identification card.

(2) A person who steals or fraudulently uses any person’s identification card in order to acquire, possess, cultivate, transport, use, produce, or distribute cannabis.

(3) A person who counterfeits, tampers with, or fraudulently produces an identification card.

(4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county’s designee pertaining to an identification card program.

(c) In addition to the penalties prescribed in subdivision (a), a person described in subdivision (b) may be precluded from attempting to obtain, or obtaining or using, an identification card for a period of up to six months at the discretion of the court.

(d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of cannabis grown for medicinal use by patients qualified under the Compassionate Use Act of 1996.

Case Law:

See People v. Hochanadel (2009) 176 Cal.App.4th 997, 1009-1011, discussing the legal requirements for a “primary caregiver” and a medical marijuana “collective” or “cooperative.”

H&S § 11362.82 (Effective January 1, 2004): Severability:

If any section, subdivision, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portion thereof.

H&S § 11362.83 (Amended; Effective June 27, 2017): Local Ordinances: Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following:

(a) Adopting local ordinances that regulate the location, operation, or establishment of a medicinal cannabis cooperative or collective.

(b) The civil and criminal enforcement of local ordinances described in subdivision (a).

(c) Enacting other laws consistent with this article.

Case Law:

However, a county may not designate a city to perform the functions of the County Health Department under the statewide registry and identification card program for medical marijuana users. (88 Ops.Cal.Atty.Gen. 113 (2005) [Opinion No. 04-709])

Not decided was the corresponding issue of whether state law preempts local ordinances which attempt to completely ban marijuana dispensaries within a city’s or county’s boundaries.

A 2012 legislative amendment attempted to clarify that local communities have the authority to regulate medical marijuana. Previously, this section provided that “[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.”

Convicted of violating LAMC § 45.19.6.2A by owning and operating a medical marijuana dispensary within 1,000 feet to the south of Hollywood High School and within 600 feet to the north of the Little Red Schoolhouse child care facility, in violation of the statute, defendants claimed the judgment should be reversed because they “substantially complied” with the requirements needed to obtain limited immunity from prosecution. The Appellate Department of the Superior Court disagreed and affirmed, ruling that: “The clear terms of the ordinance indicate strict compliance with the immunity provisions was required” and “[a]llowing immunity for an MMB (medical marijuana business) that ‘substantially complies’ with the requirement that it not be located closer than 1,000 feet of schools and closer than 600 feet of child care facilities would increase the risk of marijuana exposure to a child attending those institutions and thereby undermine the intent of the ordinance.” (People v. CHR Herbal Remedies (2017) 12 Cal.App.5th Supp. 26.)

Defendant operated a business in 2015 selling medical marijuana products, and was convicted of possession of marijuana for sale, transportation of marijuana, and money laundering relating to a seizure of $26,000, 18 pounds of marijuana, and 37 ounces of oils, waxes, and edibles. On appeal, defendant challenged the trial court’s refusal to permit defendant to present a medical marijuana defense because the municipality (City of Livermore) banned such businesses. The Court reversed, noting that: “Nothing . . . supports the trial court’s conclusion that a local ban on dispensaries abrogates the medical marijuana defense in a prosecution under state criminal law” and “[t]he court’s ruling that [defendant’s] violation of the [city] ordinance barred him raising a medical marijuana defense under the (Medical Marijuana Program Act (“MMPA”)) was thus erroneous as a matter of law.” (People v. Ahmed (June 19, 2018) __ Cal.App.5th __ [2018 Cal. App. LEXIS 617].)

Definitions, General

H&S Code § 11006.5 (Amended; Effective June 27, 2017): Concentrated Cannabis:

“Concentrated cannabis” means the separated resin, whether crude or purified, obtained from cannabis.

H&S Code § 11014.5 (Amended; Effective June 27, 2017): Drug paraphernalia:

(a) “Drug paraphernalia” means all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this division. It includes, but is not limited to:

(1) Kits designed for use or marketed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

(2) Kits designed for use or marketed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

(3) Isomerization devices designed for use or marketed for use in increasing the potency of any species of plant which is a controlled substance.

(4) Testing equipment designed for use or marketed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances.

(5) Scales and balances designed for use or marketed for use in weighing or measuring controlled substances.

(6) Containers and other objects designed for use or marketed for use in storing or concealing controlled substances.

(7) Hypodermic syringes, needles, and other objects designed for use or marketed for use in parenterally injecting controlled substances into the human body.

(8) Objects designed for use or marketed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

(A) Carburetion tubes and devices.

(B) Smoking and carburetion masks.

(C) Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

(D) Miniature cocaine spoons, and cocaine vials.

(E) Chamber pipes.

(F) Carburetor pipes.

(G) Electric pipes.

(H) Air-driven pipes.

(I) Chillums.

(J) Bongs.

(K) Ice pipes or chillers.

(b) For the purposes of this section, the phrase “marketed for use” means advertising, distributing, offering for sale, displaying for sale, or selling in a manner which promotes the use of equipment, products, or materials with controlled substances.

(c) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use.

(2) Instructions, oral or written, provided with the object concerning its use for ingesting, inhaling, or otherwise introducing a controlled substance into the human body.

(3) Descriptive materials accompanying the object which explain or depict its use.

(4) National and local advertising concerning its use.

(5) The manner in which the object is displayed for sale.

(6) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

(7) Expert testimony concerning its use.

(d) If any provision of this section or the application thereof to any person or circumstance is held invalid, it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application and to this end the provisions of this section are severable.

H&S Code § 11018 (Amended; Effective June 27, 2017): Cannabis Defined:

“Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include either of the following:

(a) Industrial hemp, as defined in H&S Code § 11018.5.

(b) The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.

H&S Code § 11018.1 (Amended; Effective June 27, 2017): Cannabis Products Defined:

“Cannabis products” means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.

H&S Code § 11018.2 (New; Effective June 27, 2017): Cannabis Accessories Defined:

“Cannabis accessories” means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing cannabis, or for ingesting, inhaling, or otherwise introducing cannabis or cannabis products into the human body.

H&S Code § 11018.5 (Amended; Effective June 27, 2017): Industrial Hemp Defined; Regulation:

(a) “Industrial hemp” means a fiber or oilseed crop, or both, that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent “tetrahydrocannabinol” (“THC”) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.

(b) Industrial hemp shall not be subject to the provisions of this division or of B&P Code §§ 26000 et seq. (Division 10), but instead shall be regulated by the Department of Food and Agriculture in accordance with the provisions of Food & Agri. Code §§ 81000 et seq. (Division 24), inclusive.

Case Law:

The district court plainly erred in applying the USSG § 4B1.2(b) enhancement based on defendant”s prior state conviction for attempted transportation of marijuana under Ariz. Rev. Stat. § 13-3405(A)(4) because the Arizona statute’s definition of marijuana included hemp, which was excluded from the federal Controlled Substances Act in effect at the time of defendant’s federal sentencing, and thus, defendant’s Arizona conviction was facially overbroad and not a categorical match. Further, the error affected defendant’s substantial rights, and if uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings. (United States v. Bautista (9th Cir. Dec. 11, 2020) __ F.3rd __ [2020 U.S.App. LEXIS 39188].)

H&S Code § 11032 (Amended; Effective June 27, 2017): Narcotics, Restricted Dangerous Drugs, and Marijuana in Other Divisions:

If reference is made to the term “narcotics” in any law not in this division, unless otherwise expressly provided, it means those controlled substances classified in Schedules I and II, as defined in this division. If reference is made to “restricted dangerous drugs” not in this division, unless otherwise expressly provided, it means those controlled substances classified in Schedules III and IV. If reference is made to the term “marijuana” in any law not in this division, unless otherwise expressly provided, it means “cannabis” as defined in this division.

H&S Code § 11054 (Amended; Effective June 27, 2017): Schedule I Controlled Substances:

(a) The controlled substances listed in this section are included in Schedule I.

. . .

(d) Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this subdivision only, the term “isomer” includes the optical, position, and geometric isomers):

. . .

(13) Cannabis.

. . .

Note: According to the Drug Enforcement Agency, Schedule I drugs are those that have the following characteristics:

The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical treatment use in the United States.
It has a lack of accepted safety for use under medical supervision.

H&S Code § 11362.1 (Amended; Effective June 27, 2017): Lawful Use, Etc. of Cannabis by Persons 21 years of Age or Older as of January 1, 2018:

(a) Subject to H&S Code §§ 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis;

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products;

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;

(4) Smoke or ingest cannabis or cannabis products; and

(5) Possess, transport, purchase, obtain, use, manufacture, or give away cannabis accessories to persons 21 years of age or older without any compensation whatsoever.

(b) Subdivision (a)(5) is intended to meet the requirements of 21 U.S.C. § 863(f) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute cannabis accessories.

(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

Case Law:

See Smith v. Superior Court (San Francisco Police Department) (2018) 28 Cal.App.5th Supp. 1, allowing a defendant to reclaim his lawfully possessed marijuana from police custody after related criminal charges were dismissed. “A controlled substance is ‘lawfully possessed’ under this section if it is lawfully possessed under California law.” (pgs. 4-5, citing City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355, 380.)

The fact that marijuana, in limited amounts, is now lawful for recreational as well as medical purposes, does not prevent an officer from having probable cause to search a motor vehicle upon discovery of a lawful amount of marijuana and/or its odor emanating from a vehicle. (People v. Fews (2018) 27 Cal.App.5th 553, at pp. 561-562):

The rule is well-established: “[A] warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband.” (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225.) The issue is whether the officers’ knowledge that a suspect possesses what, on its face, appears to be a lawful amount of recreational marijuana (i.e., now referred to as “cannabis”) justifies a search of the vehicle for possible violations of the statutes regulating such possession. Proposition 64, effective as of November 8, 2016, made lawful the possession of limited amounts of cannabis. It is argued that since passage of Proposition 64, with its enactment of H&S § 113621, marijuana is no longer “contraband.” Subdivision (c) of Section 113621 does in fact provide that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (Italics added) However, it remains unlawful to possess, transport, or give away cannabis in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed “commercial cannabis activity,” and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving. (See B&P Code §§ 26001(k), 26037, and 26038(c); and H&S Code §§ 11362.1(a), 11362.2(a), 11362.3(a), and 11362.45(a).) Driving a motor vehicle on public highways under the influence of any drug (V.C. § 23152(f)) or while in possession of an open container of marijuana (V.C. § 23222(b)(1)), are not acts “deemed lawful” by H&S § 11362.1. On the contrary, Section 11362.1 does not permit any person to possess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle or to smoke or ingest cannabis or cannabis products while driving a motor vehicle. (H&S § 11362.3(a)(4)) “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” (Illinois v. Gates (1983) 462 U.S. 213, 243, fn. 13.) The fact that there may also be an innocent explanation does not detract from the finding of probable cause. It has previously been held that a police officer has probable cause to search a vehicle based on the odor of marijuana despite the defendant’s presentation of a medical marijuana prescription. (People v. Strasburg (2007) 148 Cal.App.4th 105.) It has also been held that a police officer is entitled to investigate to determine whether a person possesses marijuana for personal medical needs and to determine whether he adhered to the Compassionate Use Act of 1996’s limits on possession. “It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities of marijuana might be found in the car.” (People v. Waxler (2014) 224 Cal.App.4th 712, 723-724.) Other states where marijuana use has been legalized are in accord, finding that “the odor of marijuana is still suggestive of criminal activity.” (See People v. Zuniga (Colo. 2016) 372 P.3rd 1052, 1059 [2016 CO 52]; and Robinson v. State (Md.Ct.App. 2017) 451 Md. 94 [152 A.3rd 661, 664–665].) The Court in Fews, therefore, held that “(d)ue to the odor of marijuana emanating from the (Saturn) SUV and Mims, as well as Mims’s admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the SUV might yield additional contraband or evidence.” The search of defendant’s vehicle, therefore, was held to be lawful.

However, see People v. Lee (2019) 40 Cal.App.5th 853, where it was held that a driver of a motor vehicle having on his person a small, legal amount of marijuana (i.e., with no odor emanating from the vehicle) is of “fairly minimal significance” in determining whether there is probable cause to believe the vehicle contains an illegal amount. “(T)here must be . . . additional evidence beyond the mere possession of a legal amount” for there to be probable cause to believe there is more marijuana in a suspect’s vehicle. (p. 856.)

Possession of a legal amount of marijuana, but contained in an opened baggie in violation of both H&S Code § 11362.1(a)(4) and Veh. Code § 23222(b)(1), was held to take it from under the protections of H&S Code § 11362.1(c), where it was declared by statute that marijuana lawfully possessed (i.e, less than an ounce) is not contraband, and cannot be used as justification for a search, detention, or arrest. (People v. McGee (2020) 53 Cal.App.5th 796; search of a passenger’s purse, based upon an officer’s plain sight observation of an opened baggie of marijuana of under an ounce, was held to be lawful.)

Even though not sealed, a closed container (i.e., a pill bottle) is in compliance with V.C. § 23222(b)(1). Quoting People v. Shumake (2019) 45 Cal.App.5th Supp. 1, the Court ruled that an officer’s “belief that any cannabis being transported in a vehicle must be in a heat-sealed container is not supported by the plain language of Section 23222(b)(1).” Therefore, an officer cannot rely on the presence of a closed (even though not sealed) container of less than an ounce of marijuana—it being lawful—as justification to search a vehicle for more marijuana. (United States v. Talley (June 15, 2020) __ F. Supp.3rd __ [2020 U.S. Dist. LEXIS 106004].)

The Court further ruled that the fact that the possession of any marijuana at all is still a violation of federal law (marijuana still being classified federally as a Schedule I controlled substance) does not provide an excuse to skirt the H&S § 11362.1(c) protections from being arrested or searched. The Ninth Circuit has already held that local police officers do not have probable cause to arrest when the alleged violation is of federal law in those circumstances where the officers are, at the time, investigating a violation of state law. See United States v. $186,416.00 in U.S. Currency (9th Cir. 2010) 590 F.3rd 942, 948. (Id., at pp. __.)

See also Commonwealth v. Craan (Mass. 2014) 469 Mass. 24: “Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana.”

Note: The continued inclusion of marijuana as a federal Schedule I controlled substance has been appealed to the United States Supreme Court in the case of Washington v. Barr (2nd Cir. 2019) 925 F.3rd 109. It is unknown at this time whether the U.S. Supreme Court will grant certiorari.

Note: In a case seeking to have the DEA reschedule marijuana in all of its forms under the Controlled Substances Act of 1970, 21 U.S.C.S. §§ 801 et seq., a petition was dismissed because, while the petitioners satisfied Article III standing, they failed to exhaust their administrative remedies with the DEA, they sought to bypass the normal administrative process by seeking review of the DEA’s response to another person’s petition and then seeking to make arguments never advanced by the other person, and nothing prevented petitioners from filing a petition of their own before the DEA, raising the arguments they sought to raise before the appellate court now. (Sisley v. United States Drug Enforcement Administration (9th Cir. Aug. 30, 2021) __ F.4th __ [2021 U.S. App. LEXIS 26079].)

It is noted (See United States v. Jones (U.S. Dist. Ct 2020) 438 F.Supp.3rd 1039, at pp. 1053-1054), that the issue of whether the odor of marijuana alone, since passage of Propostion 64, is sufficient to establish probable cause to search a vehicle is currently before the Ninth Circuit Court of Appeal in several cases. (Referencing United States v. Martinez, Case No. 17-CR-00257-LHK, 2018 U.S. Dist. LEXIS 138329 (N.D. Cal. Aug. 14, 2018) and United States v. Maffei, Case No. 18-CR-00174 YGR, 417 F. Supp.3rd 1212, 2019 U.S. Dist. LEXIS 177755 (N.D. Cal. Oct. 11, 2019.)

Marijuana in Prison or Jail:

Specifically disagreeing with Perry, the Third District Court of Appeal held that upon enactment of H&S § 11362.1, legalizing the possession of recreational marijuana by persons 21 years of age and older, such possession includes prison inmates. In enacting Proposition 64, the voters amended Pen. Code, § 4573.6 to eliminate criminal sanctions for possession of less than an ounce of marijuana and they retained criminal sanctions for possessing more than an ounce or for smoking or ingesting it. The Court declined to use the rules of statutory construction to distort the plain meaning of a statute intended to decriminalize the possession of a very small amount of marijuana, even in prison. By expressly providing that laws pertaining to smoking and ingesting cannabis in prison are not affected by the decriminalization of possession of less than an ounce of cannabis, the drafters and voters demonstrated they were aware of the prison population and chose to distinguish possession from consumption. (People v. Raybon (2019) 36 Cal.App.5th 111; review granted; see below.)

Agreeing with People v. Perry and disagreeing with People v. Raybon, the Sixth District Court of Appeal held that Prop. 64 did not decriminalize the possession of marijuana in jail.

Defendant, therefore, was properly convicted under Pen. Code, § 4573.6 for possession of cannabis in jail. Health & Saf. Code § 11362.45(d), has a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail. Also, it was held that a post-sentencing amendment to the one-year enhancement in Pen. Code § 667.5(b) applied to defendant because the case was not yet final on the effective date of the amendment. Under the amendment, the one-year enhancement was not applicable to his prior prison terms for possession of a weapon in a penal institution, carrying a concealed dirk or dagger, and robbery. (People v. Herrera (2020) 52 Cal.App.5th 982.)

Review was granted on October 14, 2020, by the California Supreme Court, at 2020 Cal. LEXIS 6974.

Resolving the issue once and for all, the California Supreme Court reversed the Third District Court of Appeal’s Raybon decision on this issue, ruling that Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (approved by voters Nov. 8, 2016) does not invalidate cannabis-related convictions under Pen. Code, § 4573.6, which makes it a felony to possess a controlled substance in a state correctional because the phrase "laws pertaining to smoking or ingesting cannabis" in Health & Saf. Code, § 11362.45, subd. (d), (state correctional facility exception to legalization of cannabis) is broad enough to encompass statutes that criminalize possession. Defendants, therefore, were properly convicted of possessing less than an ounce of cannabis in a state correctional facility. (People v. Raybon (Aug. 12, 2021) __ Cal.5th __ [2021 Cal. LEXIS 5596].)

Two justices (Kruger & Cuéllar) concurred in the judgment, but dissented in one respect; i.e., that although Prop. 64 did not legalize cannabis possession in prisons and jails, the offense should be punished pursuant to Penal Code § 4573.8 with its lesser punishment of 16 months, 2 or 3 years in the county jail (see P.C. § 18 and 1170(h)(1)), versus 2, 3, or 4 years in prison for a violation of Pen. Code § 4573.6. As it stands, however, prosecutors have a choice of which section to use, although, as emphasized by the Court, they are “encourage(d)” to “make their choices wisely.” (Id., at p. __.)

H&S Code § 11362.2 (Amended; Effective June 27, 2017): Restrictions on the Personal Cultivation of Cannabis as of January 1, 2018:

(a) Personal cultivation of cannabis under H&S Code § 11362.1(a)(3) is subject to the following restrictions:

(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local ordinances, if any, adopted in accordance with subdivision (b).

(2) The living plants and any cannabis produced by the plants in excess of 28.5 grams are kept within the person’s private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place.

(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, at one time.

(b)

(1) A city, county, or city and county may enact and enforce reasonable regulations to regulate the actions and conduct in H&S Code § 11362.1(a)(3).

(2) Notwithstanding paragraph (1), a city, county, or city and county shall not completely prohibit persons engaging in the actions and conduct under H&S Code § 11362.1(a)(3) inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.

(3) Notwithstanding H&S Code § 11362.1(a)(3), a city, county, or city and county may completely prohibit persons from engaging in actions and conduct under H&S Code § 11362.1(a)(3) outdoors upon the grounds of a private residence.

(4) Paragraph (3) shall become inoperative upon a determination by the California Attorney General that adult use of cannabis is lawful in the State of California under federal law, and an act taken by a city, county, or city and county under paragraph (3) is unenforceable upon the date of that determination by the Attorney General.

(5) For purposes of this section, “private residence” means a house, an apartment unit, a mobile home, or other similar dwelling.

Case Law:

H&S Code §§ 11362.3 (Amended; Effective June 27, 2017): Prohibited Uses of Cannabis; Relevant Definitions:

(a) H&S Code § 11362.1 does not permit any person to:

(1) Smoke or ingest cannabis or cannabis products in a public place, except in accordance with B&P Code § 26200.

(2) Smoke cannabis or cannabis products in a location where smoking tobacco is prohibited.

(3) Smoke cannabis or cannabis products within 1,000 feet of a school, day care center, or youth center while children are present at the school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with B&P Code § 26200 and only if such smoking is not detectable by others on the grounds of the school, day care center, or youth center while children are present.

(4) Possess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

Carrying cannabis in the form of what is known as “bud,” or “dried flower,” in a plastic tube, whether or not the tube is in a sealed condition, is not a violation of V.C. § 23222(b)(1) (See subd. (b)(2)), and is not otherwise illegal, and therefore, pursuant to the search restrictions of H&S Code § 11362.1, nor does it, by itself, provide the necessary probable cause to search a vehicle for more marijuana. (People v. Shumake (Dec. 16, 2019) __ Cal.App.5th Supp. __, __ [2019 Cal.App. LEXIS 1325].)

The plain sight observation of a legal amount of marijuana, enclosed in a container not open at that time (even though it had been at one time), even with the odor of marijuana emanating from the vehicle, fails provide the necessary probable cause to search for more marijuana. Proposition 64 and H&S § 11362.1(c) provide an adult person in lawful possession of less than ounce of marijuana protection from being detained, searched, or arrested. (People v. Johnson (2020) 50 Cal.App.5th 620.)

See also Commonwealth v. Craan (Mass. 2014) 469 Mass. 24: “Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana.”

(5) Possess, smoke, or ingest cannabis or cannabis products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under B&P §§ 26000 et seq. (Division 10).

(7) Smoke or ingest cannabis or cannabis products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest cannabis or cannabis products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with B&P § 26200 and while no persons under 21 years of age are present.

(b) For purposes of this section, the following definitions apply:

(1) “Day care center” has the same meaning as in H&S Code § 1596.76.

(2) “Smoke” means to inhale, exhale, burn, or carry any lighted or heated device or pipe, or any other lighted or heated cannabis or cannabis product intended for inhalation, whether natural or synthetic, in any manner or in any form. “Smoke” includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in a place.

(3) “Volatile solvent” means a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures.

(4) “Youth center” has the same meaning as in H&S Code § 11353.1.

(c) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.

See also Veh. Code §§ 23220, 23221, and 23222, below, relative to cannabis in vehicles.

Smoking and Transporting Marijuana in a Vehicle: The fact that marijuana, in limited amounts, is now lawful for recreational as well as medical purposes, does not prevent an officer from having probable cause to search a motor vehicle upon discovery of a lawful amount of marijuana and/or its odor emanating from a vehicle. (People v. Fews (2018) 27 Cal.App.5th 553, at pp. 561-562):

As of January 1, 2018, it is legal for anyone 21 years of age or older to possess up to an ounce of marijuana, and to smoke the stuff if he or she is so inclined. (H&S § 11362.1(a)(1) & (3)) The person need no longer have a medical necessity for doing so. (See the “Compassionate Use Act of 1996,” per H&S §§ 11362.5 et seq.) In other words, the “recreational use” of marijuana (or “cannabis”) is lawful in California. But there are limitations. On the limited issue of the use or possession of marijuana in vehicles, the following statutory restrictions are important: H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4) while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)). It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an opened container (e.g., with its seal broken, even though closed when observed) or opened package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft. (Subd. (a)(4)) (See also Veh. Code §§ 23220, 23221, and 23222, relative to cannabis in vehicles.) So in recognizing all these restrictions, the burning (no pun intended) question is now this: What may a police officer do upon legally stopping a motor vehicle and developing probable cause to believe that there is at least some marijuana in the car? In other words, is a warrantless search of that vehicle lawful? And if the occupants of the vehicle claim a medical marijuana excuse, or that they aren’t otherwise in violation of any of the section 11362.3 restrictions, can the officer still conduct a search of the vehicle to verify compliance with the statutes? The necessary probable cause to search the vehicle is typically developed through an officer’s observation of even a minimal amount of marijuana (People v. Waxler (2014) 224 Cal.App.4th 712, 718-725; People v. Steele (2016) 246 Cal.App.4th 1110, 1115-1120.), or simply by smelling the odor of burnt or bulk marijuana. (United States v. Johns (1985) 469 U.S. 478; United States v. Snyder (10th Cir. 2015) 793 F.3rd 1241; United States v. Smith) (8th Cir. 2015) 789 F.3rd 923; People v. Lovejoy (1970) 12 Cal.App.3rd 883, 887; People v. Gale (1973) 9 Cal.3rd 788, 793, fn. 4.) However, if an officer conducts a vehicle search based upon no more than observing less than an ounce of marijuana in a car, when it is not being smoked, not in an open container, or otherwise not in violation of any of the section 11362.3 restrictions, it can be expected that a defense attorney will later argue that such a search is illegal. There is statutory and case authority for such an argument. Specially, H&S § 11362.1(c) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” Also, People v. Johnson (2020) 50 Cal.App.5th 620, has held that the odor of marijuana and the plain sight observation of less than an ounce (legal pursuant to Prop. 64), is not probable cause to believe that more marijuana may be found in the vehicle. Similarly, People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998, held that a warrantless search upon the speculative belief that more marijuana than lawfully allowed may be found is illegal. However, Torres is a residential search case. With a vehicle, having a lower expectation of privacy as compared to a residence (see People v. Valencia (2011) 201 Cal.App.4th 922, 938-939.), we also have a strong argument that evidence of the presence of some marijuana, despite no observable or admitted section 11362.3(a) violations, supplies the required “fair probability” (which is all you need to establish probable cause; Illinois v. Gates (1983) 462 U.S. 213.) to believe that a search of the entire vehicle will uncover more marijuana and a violation. Four cases support this argument: In People v. Strasburg (2007) 148 Cal.App.4th 1052, it was held that an officer’s probable cause to believe that a person is in illegal possession of marijuana was not diminished by the fact that the person produced a medical marijuana identification card or a physician’s authorization. The Court held that defendant was lawfully detained and his car lawfully searched despite producing a doctor’s authorization to use marijuana for medical purposes. Also, in People v. Waxler, supra, it was held that the odor of marijuana in a vehicle, with the plain sight observation of a marijuana pipe with what appeared to be a small amount of marijuana in the bowl, supplied the necessary probable cause and allowed for the warrantless search of the entire vehicle. The fact that possession of less than an ounce of marijuana was (at the time this case was decided) only an infraction, or that the defendant had a medical marijuana card, was held in Waxler to be irrelevant. Lastly, according to People v. Dey (2000) 84 Cal.App.4th 1318, and People v. Hunter (2005) 133 Cal.App.4th 371, discovery of a limited amount of contraband in the passenger area of a vehicle supplies the necessary probable cause to search the entire vehicle for more. Until there is an 11362.1/11362.3 case on point, however, it is unknown at this time which of the above two theories the appellate courts will adopt.

In People v. Fews, supra, at pp. 561-562, the above argument was adopted:

The Ninth Circuit Court of Appeal reversed the federal district (trial) court’s order suppressing 135 pounds of cocaine and 114 pounds of methamphetamine discovered during a Nevada Highway Patrol trooper’s search of the cab of a tractor-trailer pulled over for speeding. The district court had found that the trooper, who smelled marijuana in the cab as he approached the tractor-trailer, lacked probable cause to search the cab and containers therein. The Ninth Circuit, however, held that the district court’s failure to include the driver’s contradictory statements about when he had smoked a marijuana cigarette in its totality of the circumstances analysis was error, and that the district court’s failure to analyze the totality of the circumstances known to the trooper was part and parcel of its broader error; i.e., its focus on the trooper’s subjective motivations for performing the search. The Court explained that because the trooper stopped the tractor-trailer as part of a criminal investigation supported by reasonable suspicion, his subjective motivations were not relevant. The Court concluded that the trooper had probable cause to search the cab and containers for evidence of violations of Nevada state law based on the driver’s admission that he had smoked a marijuana cigarette earlier in the day and his shifting story regarding how many hours earlier he had done so. (United States v. Malik (9th Cir. 2020) 963 F.3rd 1014.)

H&S Code § 11362.4 (Amended; Effective June 27, 2017): Punishments for a Violation of H&S Code § 11362.3(a)(1) through (a)(6) & Cultivation Violations per H&S Code § 11362.2(a):

(a) A person who engages in the conduct described in H&S Code § 11362.3(a)(1) is guilty of an infraction punishable by no more than a one-hundred-dollar ($100) fine; provided, however, that persons under the age of 18 shall instead be required to complete four hours of a drug education program or counseling, and up to 10 hours of community service, over a period not to exceed 60 days once the drug education program or counseling and community service opportunity are made available to the person.

(b) A person who engages in the conduct described in H&S Code § 11362.3(a)(2), (3), or (4) is guilty of an infraction punishable by no more than a two-hundred-fifty-dollar ($250) fine, unless such activity is otherwise permitted by state and local law; provided, however, that persons under the age of 18 shall instead be required to complete four hours of drug education or counseling, and up to 20 hours of community service, over a period not to exceed 90 days once the drug education program or counseling and community service opportunity are made available to the person.

(c) A person who engages in the conduct described in H&S Code § 11362.3(a)(5) shall be subject to the same punishment as provided under H&S Code § 11357(c) or (d).

(d) A person who engages in the conduct described H&S Code § 11362.3(a)(6) shall be subject to punishment under H&S Code § 11379.6.

(e) A person who violates the restrictions in H&S Code § 11362.2(a) is guilty of an infraction punishable by no more than a two-hundred-fifty-dollar ($250) fine.

(f) Notwithstanding subdivision (e), a person under the age of 18 who violates the restrictions in H&S Code § 11362.2(a) shall be punished under H&S Code § 11358(a).

(g)

(1) The drug education program or counseling hours required by this section shall be mandatory unless the court makes a finding that such a program or counseling is unnecessary for the person or that a drug education program or counseling is unavailable.

(2) The drug education program required by this section for persons under the age of 18 shall be free to participants and provide at least four hours of group discussion or instruction based on science and evidence-based principles and practices specific to the use and abuse of cannabis and other controlled substances.

(h) Upon a finding of good cause, the court may extend the time for a person to complete the drug education or counseling, and community service required under this section.

See also Veh. Code §§ 23220(d), 23221(c), and 23222(b)(1), below, relative to punishments for the illegal possession or use of cannabis in vehicles.

H&S Code §§ 11362.45: Lawful Effects of H&S Code § 11362.1 on Other Laws:

H&S Code § 11362.1 does not amend, repeal, affect, restrict, or preempt:

(a) Laws making it unlawful to drive or operate a vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis products, including, but not limited to, Veh. Code § 23152(e), or the penalties prescribed for violating those laws.

(b) Laws prohibiting the sale, administering, furnishing, or giving away of cannabis, cannabis products, or cannabis accessories, or the offering to sell, administer, furnish, or give away cannabis, cannabis products, or cannabis accessories to a person younger than 21 years of age.

(c) Laws prohibiting a person younger than 21 years of age from engaging in any of the actions or conduct otherwise permitted under H&S Code § 11362.1.

(d) Laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in P.C. § 4573.

(e) Laws providing that it would constitute negligence or professional malpractice to undertake any task while impaired from smoking or ingesting cannabis or cannabis products.

(f) The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.

See Ross v. RagingWire (2008) 42 Cal.4th 920; Loder v. City of Glendale (1997) 14 Cal.4th 846.)

(g) The ability of a state or local government agency to prohibit or restrict any of the actions or conduct otherwise permitted under H&S Code § 11362.1 within a building owned, leased, or occupied by the state or local government agency.

(h) The ability of an individual or private entity to prohibit or restrict any of the actions or conduct otherwise permitted under H&S Code § 11362.1 on the individual’s or entity’s privately owned property.

(i) Laws pertaining to the Compassionate Use Act of 1996.

Case Law:

Use of marijuana may be used as grounds for being fired by the patient’s employer, and is not a violation of California’s Fair Employment and Housing Act. (Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920.)

Defendant, who was serving a prison sentence for possessing cannabis in a correctional institution, in violation of Pen. Code § 4573.8, was not entitled to dismissal and recall of his sentence under Proposition 64, which made it legal to possess up to 28.5 grams of cannabis and provided for relief in the form of recall or dismissal of existing sentences, because the crime was not affected by Proposition 64. Although P.C. § 4573.8 criminalizes possession rather than use of drugs in a correctional institution, for purposes of the carve-out language in Health & Saf. Code § 11362.45, H&S Code § 4573.8 is properly described as a law “pertaining to” smoking or ingesting cannabis in such a setting, as it is part of prophylactic approach to prevent prisoners from using drugs. (People v. Whalum (June 5, 2020) __ Cal.App.5th __ [2020 Cal.App. LEXIS 497].)

H&S Code § 11362.84 (Amended; Effective June 27, 2017): Custodial or Parental Rights of a Medical Cannabis Patient:

The status and conduct of a qualified patient who acts in accordance with the Compassionate Use Act shall not, by itself, be used to restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court.

H&S Code § 11362.85 (Amended; Effective June 27, 2017): Prospective Amendments to Conform to Federal Law:

Upon a determination by the California Attorney General that the federal schedule of controlled substances has been amended to reclassify or declassify cannabis, the Legislature may amend or repeal the provisions of this code, as necessary, to conform state law to such changes in federal law.

H&S Code § 11362.9 (Amended; Effective June 27, 2017): Proposed Scientific Research on the Efficacy and Safety of Cannabis as a Part of Medical Treatment:

(a)

(1) It is the intent of the Legislature that the state commission objective scientific research by the premier research institute of the world, the University of California, regarding the efficacy and safety of administering cannabis as part of medical treatment. If the Regents of the University of California, by appropriate resolution, accept this responsibility, the University of California shall create a program, to be known as the California Cannabis Research Program. Whenever “California Marijuana Research Program” appears in any statute, regulation, or contract, or in any other code, it shall be construed to refer to the California Cannabis Research Program.

(2) The program shall develop and conduct studies intended to ascertain the general medical safety and efficacy of cannabis and, if found valuable, shall develop medical guidelines for the appropriate administration and use of cannabis. The studies may include studies to ascertain the effect of cannabis on motor skills.

(b) The program may immediately solicit proposals for research projects to be included in the cannabis studies. Program requirements to be used when evaluating responses to its solicitation for proposals, shall include, but not be limited to, all of the following:

(1) Proposals shall demonstrate the use of key personnel, including clinicians or scientists and support personnel, who are prepared to develop a program of research regarding cannabis’ general medical efficacy and safety.

(2) Proposals shall contain procedures for outreach to patients with various medical conditions who may be suitable participants in research on cannabis.

(3) Proposals shall contain provisions for a patient registry.

(4) Proposals shall contain provisions for an information system that is designed to record information about possible study participants, investigators, and clinicians, and deposit and analyze data that accrues as part of clinical trials.

(5) Proposals shall contain protocols suitable for research on cannabis, addressing patients diagnosed with acquired immunodeficiency syndrome (AIDS) or human immunodeficiency virus (HIV), cancer, glaucoma, or seizures or muscle spasms associated with a chronic, debilitating condition. The proposal may also include research on other serious illnesses, provided that resources are available and medical information justifies the research.

(6) Proposals shall demonstrate the use of a specimen laboratory capable of housing plasma, urine, and other specimens necessary to study the concentration of cannabinoids in various tissues, as well as housing specimens for studies of toxic effects of cannabis.

(7) Proposals shall demonstrate the use of a laboratory capable of analyzing cannabis, provided to the program under this section, for purity and cannabinoid content and the capacity to detect contaminants.

(c) In order to ensure objectivity in evaluating proposals, the program shall use a peer review process that is modeled on the process used by the National Institutes of Health, and that guards against funding research that is biased in favor of or against particular outcomes. Peer reviewers shall be selected for their expertise in the scientific substance and methods of the proposed research, and their lack of bias or conflict of interest regarding the applicants or the topic of an approach taken in the proposed research. Peer reviewers shall judge research proposals on several criteria, foremost among which shall be both of the following:

(1) The scientific merit of the research plan, including whether the research design and experimental procedures are potentially biased for or against a particular outcome.

(2) Researchers’ expertise in the scientific substance and methods of the proposed research, and their lack of bias or conflict of interest regarding the topic of, and the approach taken in, the proposed research.

(d) If the program is administered by the Regents of the University of California, any grant research proposals approved by the program shall also require review and approval by the research advisory panel.

(e) It is the intent of the Legislature that the program be established as follows:

(1) The program shall be located at one or more University of California campuses that have a core of faculty experienced in organizing multidisciplinary scientific endeavors and, in particular, strong experience in clinical trials involving psychopharmacologic agents. The campuses at which research under the auspices of the program is to take place shall accommodate the administrative offices, including the director of the program, as well as a data management unit, and facilities for storage of specimens.

(2) When awarding grants under this section, the program shall utilize principles and parameters of the other well-tested statewide research programs administered by the University of California, modeled after programs administered by the National Institutes of Health, including peer review evaluation of the scientific merit of applications.

(3) The scientific and clinical operations of the program shall occur, partly at University of California campuses, and partly at other postsecondary institutions, that have clinicians or scientists with expertise to conduct the required studies. Criteria for selection of research locations shall include the elements listed in subdivision (b) and, additionally, shall give particular weight to the organizational plan, leadership qualities of the program director, and plans to involve investigators and patient populations from multiple sites.

(4) The funds received by the program shall be allocated to various research studies in accordance with a scientific plan developed by the Scientific Advisory Council. As the first wave of studies is completed, it is anticipated that the program will receive requests for funding of additional studies. These requests shall be reviewed by the Scientific Advisory Council.

(5) The size, scope, and number of studies funded shall be commensurate with the amount of appropriated and available program funding.

(f) All personnel involved in implementing approved proposals shall be authorized as required by H&S Code § 11604.

(g) Studies conducted pursuant to this section shall include the greatest amount of new scientific research possible on the medical uses of, and medical hazards associated with, cannabis. The program shall consult with the Research Advisory Panel analogous agencies in other states, and appropriate federal agencies in an attempt to avoid duplicative research and the wasting of research dollars.

(h) The program shall make every effort to recruit qualified patients and qualified physicians from throughout the state.

(i) The cannabis studies shall employ state-of-the-art research methodologies.

(j) The program shall ensure that all cannabis used in the studies is of the appropriate medical quality and shall be obtained from the National Institute on Drug Abuse or any other federal agency designated to supply cannabis for authorized research. If these federal agencies fail to provide a supply of adequate quality and quantity within six months of the effective date of this section, the Attorney General shall provide an adequate supply pursuant to H&S Code § 11478.

(k) The program may review, approve, or incorporate studies and research by independent groups presenting scientifically valid protocols for medical research, regardless of whether the areas of study are being researched by the committee.

(l)

(1) To enhance understanding of the efficacy and adverse effects of cannabis as a pharmacological agent, the program shall conduct focused controlled clinical trials on the usefulness of cannabis in patients diagnosed with AIDS or HIV, cancer, glaucoma, or seizures or muscle spasms associated with a chronic, debilitating condition. The program may add research on other serious illnesses, provided that resources are available and medical information justifies the research. The studies shall focus on comparisons of both the efficacy and safety of methods of administering the drug to patients, including inhalational, tinctural, and oral, evaluate possible uses of cannabis as a primary or adjunctive treatment, and develop further information on optimal dosage, timing, mode of administration, and variations in the effects of different cannabinoids and varieties of cannabis.

(2) The program shall examine the safety of cannabis in patients with various medical disorders, including cannabis’s interaction with other drugs, relative safety of inhalation versus oral forms, and the effects on mental function in medically ill persons.

(3) The program shall be limited to providing for objective scientific research to ascertain the efficacy and safety of cannabis as part of medical treatment, and should not be construed as encouraging or sanctioning the social or recreational use of cannabis.

(m)

(1) Subject to paragraph (2), the program shall, prior to any approving proposals, seek to obtain research protocol guidelines from the National Institutes of Health and shall, if the National Institutes of Health issues research protocol guidelines, comply with those guidelines.

(2) If, after a reasonable period of time of not less than six months and not more than a year has elapsed from the date the program seeks to obtain guidelines pursuant to paragraph (1), no guidelines have been approved, the program may proceed using the research protocol guidelines it develops.

(n) In order to maximize the scope and size of the cannabis studies, the program may do any of the following:

(1) Solicit, apply for, and accept funds from foundations, private individuals, and all other funding sources that can be used to expand the scope or timeframe of the cannabis studies that are authorized under this section. The program shall not expend more than 5 percent of its General Fund allocation in efforts to obtain money from outside sources.

(2) Include within the scope of the cannabis studies other cannabis research projects that are independently funded and that meet the requirements set forth in subdivisions (a) to (c), inclusive. In no case shall the program accept any funds that are offered with any conditions other than that the funds be used to study the efficacy and safety of cannabis as part of medical treatment. Any donor shall be advised that funds given for purposes of this section will be used to study both the possible benefits and detriments of cannabis and that he or she will have no control over the use of these funds.

(o)

(1) Within six months of the effective date of this section, the program shall report to the Legislature, the Governor, and the Attorney General on the progress of the cannabis studies.

(2) Thereafter, the program shall issue a report to the Legislature every six months detailing the progress of the studies. The interim reports required under this paragraph shall include, but not be limited to, data on all of the following:

(A) The names and number of diseases or conditions under study.

(B) The number of patients enrolled in each study by disease.

(C) Any scientifically valid preliminary findings.

(p) If the Regents of the University of California implement this section, the President of the University of California shall appoint a multidisciplinary Scientific Advisory Council, not to exceed 15 members, to provide policy guidance in the creation and implementation of the program. Members shall be chosen on the basis of scientific expertise. Members of the council shall serve on a voluntary basis, with reimbursement for expenses incurred in the course of their participation. The members shall be reimbursed for travel and other necessary expenses incurred in their performance of the duties of the council.

(q) No more than 10 percent of the total funds appropriated may be used for all aspects of the administration of this section.

(r) This section shall be implemented only to the extent that funding for its purposes is appropriated by the Legislature in the annual Budget Act.

H&S Code § 11364.5 (Amended; Effective June 27, 2017): Drug Paraphernalia; Sold Only When Kept Separate from Minors Under the Age of 18; Drug Paraphernalia Defined; Violation as Grounds for Revocation of Business License, Etc.:

(a) Except as authorized by law, no person shall maintain or operate any place of business in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away unless such drug paraphernalia is completely and wholly kept, displayed or offered within a separate room or enclosure to which persons under the age of 18 years not accompanied by a parent or legal guardian are excluded. Each entrance to such a room or enclosure shall be signposted in reasonably visible and legible words to the effect that drug paraphernalia is kept, displayed or offered in such room or enclosure and that minors, unless accompanied by a parent or legal guardian, are excluded.

(b) Except as authorized by law, no owner, manager, proprietor or other person in charge of any room or enclosure, within any place of business, in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred or given away shall permit or allow any person under the age of 18 years to enter, be in, remain in or visit such room or enclosure unless that minor person is accompanied by one of his or her parents or by his or her legal guardian.

(c) Unless authorized by law, no person under the age of 18 years shall enter, be in, remain in, or visit any room or enclosure in any place of business in which drug paraphernalia is kept, displayed or offered in any manner, sold, furnished, transferred, or given away unless accompanied by one of his or her parents or by his or her legal guardian.

(d) As used in this section, “drug paraphernalia” means all equipment, products, and materials of any kind which are intended for use or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. “Drug paraphernalia” includes, but is not limited to, all of the following:

(1) Kits intended for use or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

(2) Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

(3) Isomerization devices intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance.

(4) Testing equipment intended for use or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances.

(5) Scales and balances intended for use or designed for use in weighing or measuring controlled substances.

(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, intended for use or designed for use in cutting controlled substances.

(7) Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

(8) Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances.

(9) Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of controlled substances.

(10) Containers and other objects intended for use or designed for use in storing or concealing controlled substances.

(11) Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body.

(12) Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as the following:

(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

(B) Water pipes.

(C) Carburetion tubes and devices.

(D) Smoking and carburetion masks.

(E) Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette that has become too small or too short to be held in the hand.

(F) Miniature cocaine spoons, and cocaine vials.

(G) Chamber pipes.

(H) Carburetor pipes.

(I) Electric pipes.

(J) Air-driven pipes.

(K) Chillums.

(L) Bongs.

(M) Ice pipes or chillers.

(e) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use.

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.

(3) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he or she knows, or should reasonably know, intend to use the object to facilitate a violation of this section. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this section shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

(4) Instructions, oral or written, provided with the object concerning its use.

(5) Descriptive materials, accompanying the object which explain or depict its use.

(6) National and local advertising concerning its use.

(7) The manner in which the object is displayed for sale.

(8) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

(9) The existence and scope of legitimate uses for the object in the community.

(10) Expert testimony concerning its use.

(f) This section shall not apply to any of the following:

(1) Any pharmacist or other authorized person who sells or furnishes drug paraphernalia described in subdivision (d)(11) upon the prescription of a physician, dentist, podiatrist, or veterinarian.

(2) Any physician, dentist, podiatrist, or veterinarian who furnishes or prescribes drug paraphernalia described in subdivision (d)(11) to his or her patients.

(3) Any manufacturer, wholesaler, or retailer licensed by the California State Board of Pharmacy to sell or transfer drug paraphernalia described in subdivision (d)(11).

(g) Notwithstanding any other provision of law, including H&S Code § 11374, violation of this section shall not constitute a criminal offense, but operation of a business in violation of the provisions of this section shall be grounds for revocation or nonrenewal of any license, permit, or other entitlement previously issued by a city, county, or city and county for the privilege of engaging in such business and shall be grounds for denial of any future license, permit, or other entitlement authorizing the conduct of such business or any other business, if the business includes the sale of drug paraphernalia.

H&S Code § 11369 (Repealed; Effective Jan. 1, 2018): Notification Requirements Upon Arrest of a Non-Citizens for Listed Drug Offenses:

The following notification requirement is repealed as of January 1, 2018: When there is reason to believe that any person arrested for a violation of H&S Code §§ 11350, 11351, 11351.5, 11352, 11353, 11355, 11357, 11359, 11360, 11361, 11363, 11366, 11368 or 11550, may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.

H&S Code § 11375.7 (Effective 9/25/2016): Pre-Guilty Plea Drug Court Program:

(a) Unless otherwise excluded pursuant to this section, a person charged with a misdemeanor pursuant H&S Code § 11357.5(b)(3) (i.e., use or possession of a synthetic cannabinoid derivative; i.e., synthetic marijuana) or H&S Code § 11375.5(b)(3) (i.e., use or possession of any synthetic stimulant compound as described in the section), shall be eligible to participate in a pre-guilty plea drug court program, as described in P.C. § 1000.5.

(b) Notwithstanding any other law, a positive test for use of a controlled substance, any other drug that may not be possessed without a prescription, or alcohol shall not be grounds for dismissal from the program, unless the person is not making progress in the program. The court shall consider any report or recommendation of the treatment provider in making this determination. It shall be presumed that a person engaged in a program is making progress, unless that presumption is defeated by clear and convincing evidence. The person may offer evidence or an argument that he or she would benefit from and make progress in a different program or mode. If the court so finds, it may place the person in a different treatment program.

(c) Notwithstanding any other law, the following persons are excluded from participation in the program under this section:

(1) Any person with a history of violence that indicates that he or she presents a current risk of violent behavior currently or during the treatment program. This ground for exclusion shall be established by clear and convincing evidence.

(2) Any person required to register as a sex offender pursuant to P.C. § 290, unless the court finds by clear and convincing evidence that the person does not present a substantial risk of committing sexual offenses currently or through the course of the program and the person would benefit from the program, including that treatment would reduce the risk that the person would sexually reoffend.

(3) Any person that the treatment provider concludes is unamenable to any and all forms of drug treatment. The defendant may present evidence that he or she is amenable to treatment and the court may retain the person in the program if the court finds that the person is amenable to treatment through a different provider or a different mode of treatment.

(d) Notwithstanding any other law, a prior conviction for an offense involving a controlled substance or drug that may not be possessed without a prescription, including a substance listed in H&S Code §§ 11357.5 or 11375.5, is not grounds for exclusion from the program, unless the court finds by clear and convincing evidence that the person is likely to engage in drug commerce for financial gain, rather than for purposes of obtaining a drug or drugs for personal use.

H&S Code § 11470 (Amended; Effective June 27, 2017): Items Subject to Forfeiture: The following are subject to forfeiture:

(a) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this division.

(b) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this division.

(c) All property except real property or a boat, airplane, or any vehicle which is used, or intended for use, as a container for property described in subdivision (a) or (b).

(d) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this division.

(e) The interest of any registered owner of a boat, airplane, or any vehicle other than an implement of husbandry, as defined in Veh. Code § 36000, which has been used as an instrument to facilitate the manufacture of, or possession for sale or sale of 14.25 grams or more of heroin, or a substance containing 14.25 grams or more of heroin, or 14.25 grams or more of a substance containing heroin, or 28.5 grams or more of Schedule I controlled substances except cannabis, peyote, or psilocybin; 10 pounds dry weight or more of cannabis, peyote, or psilocybin; or 28.5 grams or more of cocaine, as specified in H&S § 11055(b)(6), cocaine base as specified in H&S § 11054(f)(1), or methamphetamine; or a substance containing 28.5 grams or more of cocaine, as specified in H&S § 11055(b)(6), cocaine base as specified in H&S § 11054(f)(1), or methamphetamine; or 57 grams or more of a substance containing cocaine, as specified in H&S § 11055(b)(6), cocaine base as specified in H&S § 11054(f)(1), or methamphetamine; or 28.5 grams or more of Schedule II controlled substances. An interest in a vehicle which may be lawfully driven on the highway with a class C, class M1, or class M2 license, as prescribed in V.C. § 12804.9, shall not be forfeited under this subdivision if there is a community property interest in the vehicle by a person other than the defendant and the vehicle is the sole class C, class M1, or class M2 vehicle available to the defendant’s immediate family.

(f) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of H&S §§ 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383, or P.C. § 182, or a felony violation of H&S § 11366.8, insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses, if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property, or the filing of a petition under this chapter, or the issuance of an order of forfeiture of the property, whichever comes first.

(g) The real property of any property owner who is convicted of violating H&S §§ 11366, 11366.5, or 11366.6 with respect to that property. However, property which is used as a family residence or for other lawful purposes, or which is owned by two or more persons, one of whom had no knowledge of its unlawful use, shall not be subject to forfeiture.

(h)

(1) Subject to the requirements of H&S § 11488.5 and except as further limited by this subdivision to protect innocent parties who claim a property interest acquired from a defendant, all right, title, and interest in any personal property described in this section shall vest in the state upon commission of the act giving rise to forfeiture under this chapter, if the state or local governmental entity proves a violation of H&S §§ 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383, or P.C. § 182, or a felony violation of H&S § 11366.8 of this code, insofar as the offense involves the manufacture, sale, possession for sale, offer for sale, offer to manufacture, or conspiracy to commit at least one of those offenses, in accordance with the burden of proof set forth in H&S § 11488.4(i)(1) or, in the case of cash or negotiable instruments in excess of twenty-five thousand dollars ($25,000), H&S § 11488.4(i)(4).

(2) The operation of the special vesting rule established by this subdivision shall be limited to circumstances where its application will not defeat the claim of any person, including a bona fide purchaser or encumbrancer who, pursuant to H&S §§ 11488.5, 11488.6, or 11489, claims an interest in the property seized, notwithstanding that the interest in the property being claimed was acquired from a defendant whose property interest would otherwise have been subject to divestment pursuant to this subdivision.

See also Wilson v. Horton’s Towing (9th Cir. Oct. 9, 2018) __ F.3rd __ [2018 U.S. App. LEXIS 28430]: After leaving a casino on the Lummi Indian Reservation, in the State of Washington, plaintiff was driving on a state road crossing through the Lummi Indian Reservation when he was stopped by a Lummi tribal officer who suspected that plaintiff was driving while intoxicated. The stop resulted in a search of the plaintiff’s truck, during which marijuana was found. The truck was seized and the Lummi Tribal Court issued a notice of civil forfeiture. The Court agreed with the district court’s ultimate conclusion that tribal jurisdiction was colorable in this case, but for a different reason than used by the district court. The Ninth Circuit panel held that although plaintiff was stopped on a state road, once could logically conclude that the forfeiture was a response to his unlawful possess of marijuana while on tribal land. The Court further held that the events giving rise to the conversion claim revealed a direct connection to tribal lands, and provided at least a colorable basis for the tribe’s jurisdiction over the dispute.

H&S Code § 11473.5 (Added in 1972): Destruction of Property in Absence of Conviction:

(a) All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant.

It is a Fourteenth Amendment due process violation not to return legally possessed marijuana to a person for which no criminal charges are pending. (Smith v. Superior Court (San Francisco Police Department) (2018) 28 Cal.App.5th Supp. 1, 4.)

(b) If the court finds that the property was not lawfully possessed by the defendant, law enforcement may request of the court that certain uncontaminated instruments or paraphernalia be relinquished to a school or school district for science classroom education in lieu of destruction.

After the granting of a non-statutory motion to return property following dismissal of criminal charges, 21.8 grams of recreational marijuana should have been returned to the owner under H&S Code § 11473.5 because at the time the marijuana was seized, the petitioner lawfully possessed the marijuana under California law in that he was over 21 years of age and the amount was less than 28.6 grams. There is no positive conflict between California law and the federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.) such that the two cannot consistently stand together. The San Francisco Police Department is immune from federal prosecution under the Controlled Substances Act when complying with California’s return provisions. (Smith v. Superior Court (San Francisco Police Department) (2018) 28 Cal.App.5th Supp. 1; “A controlled substance is ‘lawfully possessed’ under this section if it is lawfully possessed under California law.” (pgs. 4-5, citing City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355, 380.)

H&S Code § 11474: (Added 1972, amended 1980): Court Order for Destruction of Property:

A court order for the destruction of controlled substances, instruments, or paraphernalia pursuant to the provisions of H&S §§ 11473 or 11473.5 may be carried out by a police or sheriff’s department, the Department of Justice, the Department of the California Highway Patrol, or the Department of Alcoholic Beverage Control. The court order shall specify the agency responsible for the destruction. Controlled substances, instruments, or paraphernalia not in the possession of the designated agency at the time the order of the court is issued shall be delivered to the designated agency for destruction in compliance with the order.

H&S Code § 11475: (Added 1972): Forfeiture to the State of Schedule I Controlled Substances:

Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of this division are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I, which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.

H&S Code § 11476: (Added 1972): Forfeiture to the State of Schedule I & II Plants:

Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this division, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.

H&S Code § 11477: (Added 1972; Amended 1980): Seizure and Forfeiture of Plants on Failure of Occupant to Produce Registration:

The failure, upon demand by a peace officer of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

H&S Code § 11478 (Amended; Effective June 27, 2017): Cannabis Provided for Research:

Cannabis may be provided by the Attorney General to the heads of research projects which have been registered by the Attorney General, and which have been approved by the research advisory panel pursuant to H&S § 11480.

The head of the approved research project shall personally receipt for such quantities of cannabis and shall make a record of their disposition. The receipt and record shall be retained by the Attorney General. The head of the approved research project shall also, at intervals and in the manner required by the research advisory panel, report the progress or conclusions of the research project.

H&S Code § 11479 (Amended; Effective June 27, 2017): Prerequisites to the Destruction of Contraband:

Notwithstanding H&S §§ 11473 and 11473.5 (providing for the destruction of seized illegal contraband) at any time after seizure by a law enforcement agency of a suspected controlled substance, except in the case of growing or harvested cannabis, that amount in excess of 10 pounds in gross weight may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. In the case of growing or harvested cannabis, that amount in excess of two pounds, or the amount of cannabis a medicinal cannabis patient or designated caregiver is authorized to possess by ordinance in the city or county where the cannabis was seized, whichever is greater, may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

(a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. These samples shall be in addition to the 10 pounds required above. When the suspected controlled substance consists of growing or harvested cannabis plants, at least one 2-pound sample or a sample in the amount of medicinal cannabis a medicinal cannabis patient or designated caregiver is authorized to possess by ordinance in the city or county where the cannabis was seized, whichever is greater, shall be retained. This sample may include stalks, branches, or leaves. In addition, five representative samples of leaves or buds shall be retained for evidentiary purposes from the total amount of suspected controlled substances to be destroyed.

(b) Photographs and videos have been taken that reasonably and accurately demonstrate the total amount of the suspected controlled substance to be destroyed.

(c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating that weight after dimensional measurement of the total suspected controlled substance.

(d) The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location. In making this determination, the difficulty of transporting and storing the suspected controlled substance to another site and the storage facilities may be taken into consideration.

Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court that has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the applicable information required by subdivisions (a), (b), (c), and (d) together with information establishing the location of the suspected controlled substance, and specifying the date and time of the destruction. In the event that there are no criminal proceedings pending that pertain to that suspected controlled substance, the affidavit may be filed in any court within the county that would have jurisdiction over a person against whom those criminal charges might be filed.

After the granting of a non-statutory motion to return property following dismissal of criminal charges, 21.8 grams of recreational marijuana should have been returned to the owner under H&S Code § 11473.5 because at the time the marijuana was seized, the petitioner lawfully possessed the marijuana under California law in that he was over 21 years of age and the amount was less than 28.6 grams. There is no positive conflict between California law and the federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.) such that the two cannot consistently stand together. The San Francisco Police Department is immune from federal prosecution under the Controlled Substances Act when complying with California’s return provisions. (Smith v. Superior Court (San Francisco Police Department) (2018) 28 Cal.App.5th Supp. 1“A controlled substance is ‘lawfully possessed’ under this section if it is lawfully possessed under California law.” (pgs. 4-5, citing City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355, 380.)

H&S Code § 11479.2 (Amended; Effective June 27, 2017): Prerequisites to the Destruction of Contraband Except Cannabis:

Notwithstanding the provisions of H&S §§ 11473, 11473.5, 11474, 11479, and 11479.1, at any time after seizure by a law enforcement agency of a suspected controlled substance, except cannabis, any amount, as determined by the court, in excess of 57 grams may, by court order, be destroyed by the chief of a law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

(a) At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. Those samples shall be in addition to the 57 grams required above and each sample shall weigh not less than one gram at the time the sample is collected.

(b) Photographs have been taken which reasonably demonstrate the total amount of the suspected controlled substance to be destroyed.

(c) The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating such weight after dimensional measurement of the total suspected controlled substance.

(d) In cases involving controlled substances suspected of containing cocaine or methamphetamine, an analysis has determined the qualitative and quantitative nature of the suspected controlled substance.

(e) The law enforcement agency with custody of the controlled substance sought to be destroyed has filed a written motion for the order of destruction in the court which has jurisdiction over any pending criminal proceeding in which a defendant is charged by accusatory pleading with a crime specifically involving the suspected controlled substance sought to be destroyed. The motion shall, by affidavit of the chief of the law enforcement agency or designated subordinate, recite the applicable information required by subdivisions (a), (b), (c), and (d), together with information establishing the location of the suspected controlled substance and the title of any pending criminal proceeding as defined in this subdivision. The motion shall bear proof of service upon all parties to any pending criminal proceeding. No motion shall be made when a defendant is without counsel until the defendant has entered his or her plea to the charges.

(f) The order for destruction shall issue pursuant to this section upon the motion and affidavit in support of the order, unless within 20 days after application for the order, a defendant has requested, in writing, a hearing on the motion. Within 10 days after the filing of that request, or a longer period of time upon good cause shown by either party, the court shall conduct a hearing on the motion in which each party to the motion for destruction shall be permitted to call and examine witnesses. The hearing shall be recorded. Upon conclusion of the hearing, if the court finds that the defendant would not be prejudiced by the destruction, it shall grant the motion and make an order for destruction. In making the order, the court shall ensure that the representative samples to be retained are of sufficient quantities to allow for qualitative analyses by both the prosecution and the defense. Any order for destruction pursuant to this section shall include the applicable information required by subdivisions (a), (b), (c), (d), and (e) and the name of the agency responsible for the destruction. Unless waived, the order shall provide for a 10-day delay prior to destruction in order to allow expert analysis of the controlled substance by the defense.

Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court which ordered destruction stating the location of the retained, suspected controlled substance and specifying the date and time of destruction.

This section does not apply to seizures involving hazardous chemicals or controlled substances in mixture or combination with hazardous chemicals.

H&S Code § 11480 (Amended; Effective June 27, 2017): Research into the Nature and Effects of Cannabis and Hallucinogenic Drugs; The Research Advisory Panel:

(a) The Legislature finds that there is a need to encourage further research into the nature and effects of cannabis and hallucinogenic drugs and to coordinate research efforts on such subjects.

(b) There is a Research Advisory Panel that consists of a representative of the State Department of Health Services, a representative of the California State Board of Pharmacy, the State Public Health Officer, a representative of the Attorney General, a representative of the University of California who shall be a pharmacologist, a physician, or a person holding a doctorate degree in the health sciences, a representative of a private university in this state who shall be a pharmacologist, a physician, or a person holding a doctorate degree in the health sciences, a representative of a statewide professional medical society in this state who shall be engaged in the private practice of medicine and shall be experienced in treating controlled substance dependency, a representative appointed by and serving at the pleasure of the Governor who shall have experience in drug abuse, cancer, or controlled substance research and who is either a registered nurse, licensed pursuant to B&P Code §§ 2700 et seq. (Division 2, Chapter 6), or other health professional. The Governor shall annually designate the private university and the professional medical society represented on the panel. Members of the panel shall be appointed by the heads of the entities to be represented, and they shall serve at the pleasure of the appointing power.

(c) The Research Advisory Panel shall appoint two special members to the Research Advisory Panel, who shall serve at the pleasure of the Research Advisory Panel only during the period H&S §§ 11260 (Chapter 5, Article 6) remains effective. The additional members shall be physicians and surgeons, and who are board certified in oncology, ophthalmology, or psychiatry.

(d) The panel shall annually select a chairperson from among its members.

(e) The panel may hold hearings on, and in other ways study, research projects concerning cannabis or hallucinogenic drugs in this state. Members of the panel shall serve without compensation, but shall be reimbursed for any actual and necessary expenses incurred in connection with the performance of their duties.

(f) The panel may approve research projects, which have been registered by the Attorney General, into the nature and effects of cannabis or hallucinogenic drugs, and shall inform the Attorney General of the head of the approved research projects that are entitled to receive quantities of cannabis pursuant to H&S § 11478.

(g) The panel may withdraw approval of a research project at any time, and when approval is withdrawn shall notify the head of the research project to return any quantities of cannabis to the Attorney General.

(h) The panel shall report annually to the Legislature and the Governor those research projects approved by the panel, the nature of each research project, and, where available, the conclusions of the research project.

H&S Code § 11485 (Amended; Effective June 27, 2017): Disposition of Personal Property Seized Pursuant to a Search Warrant and Used in Growing and Processing Cannabis Where no Prosecution Results:

Any peace officer of this state who, incident to a search under a search warrant issued for a violation of H&S § 11358 with respect to which no prosecution of a defendant results, seizes personal property suspected of being used in the planting, cultivation, harvesting, drying, processing, or transporting of cannabis, shall, if the seized personal property is not being held for evidence or destroyed as contraband, and if the owner of the property is unknown or has not claimed the property, provide notice regarding the seizure and manner of reclamation of the property to any owner or tenant of real property on which the property was seized. In addition, this notice shall be posted at the location of seizure and shall be published at least once in a newspaper of general circulation in the county in which the property was seized. If, after 90 days following the first publication of the notice, no owner appears and proves his or her ownership, the seized personal property shall be deemed to be abandoned and may be disposed of by sale to the public at public auction as set forth in Civ. Code §§ 2080 et seq. (Title 6, Division 3, Part 4, Chapter 4), or may be disposed of by transfer to a government agency or community service organization. Any profit from the sale or transfer of the property shall be expended for investigative services with respect to crimes involving cannabis.

H&S Code § 11489: Distribution of Funds From Sale of Forfeited Property: Notwithstanding H&S § 11502 and except as otherwise provided in H&S § 11473, in all cases where the property is seized pursuant to this chapter and forfeited to the state or local governmental entity and, where necessary, sold by the Department of General Services or local governmental entity, the money forfeited or the proceeds of sale shall be distributed by the state or local governmental entity as follows:

(a) To the bona fide or innocent purchaser, conditional sales vendor, or mortgagee of the property, if any, up to the amount of his or her interest in the property, when the court declaring the forfeiture orders a distribution to that person.

(b) The balance, if any, to accumulate, and to be distributed and transferred quarterly in the following manner:

(1) To the state agency or local governmental entity for all expenditures made or incurred by it in connection with the sale of the property, including expenditures for any necessary costs of notice required by H&S § 11488.4, and for any necessary repairs, storage, or transportation of any property seized under this chapter.

(2) The remaining funds shall be distributed as follows:

(A) Sixty–five percent to the state, local, or state and local law enforcement entities that participated in the seizure distributed so as to reflect the proportionate contribution of each agency.

(i) Fifteen percent of the funds distributed pursuant to this subparagraph shall be deposited in a special fund maintained by the county, city, or city and county of any agency making the seizure or seeking an order for forfeiture. This fund shall be used for the sole purpose of funding programs designed to combat drug abuse and divert gang activity, and shall wherever possible involve educators, parents, community–based organizations and local businesses, and uniformed law enforcement officers. Those programs that have been evaluated as successful shall be given priority. These funds shall not be used to supplant any state or local funds that would, in the absence of this clause, otherwise be made available to the programs.

It is the intent of the Legislature to cause the development and continuation of positive intervention programs for high–risk elementary and secondary schoolage students. Local law enforcement should work in partnership with state and local agencies and the private sector in administering these programs.

(ii) The actual distribution of funds set aside pursuant to clause (i) is to be determined by a panel consisting of the sheriff of the county, a police chief selected by the other chiefs in the county, and the district attorney and the chief probation officer of the county.

(B) Ten percent to the prosecutorial agency which processes the forfeiture action.

(C) Twenty–four percent to the General Fund. Notwithstanding Gov’t. Code § 13340, the moneys are hereby continuously appropriated to the General Fund. Commencing January 1, 1995, all moneys deposited in the General Fund pursuant to this subparagraph, in an amount not to exceed ten million dollars ($10,000,000), shall be made available for school safety and security, upon appropriation by the Legislature, and shall be disbursed pursuant to Senate Bill 1255 of the 1993–94 Regular Session, as enacted.

(D) One percent to a private nonprofit organization composed of local prosecutors which shall use these funds for the exclusive purpose of providing a statewide program of education and training for prosecutors and law enforcement officers in ethics and the proper use of laws permitting the seizure and forfeiture of assets under this chapter.

(c) Notwithstanding Item 0820–101–469 of the Budget Act of 1985 (Chapter 111 of the Statutes of 1985), all funds allocated to the Department of Justice pursuant to subdivision (b)(2)(A) shall be deposited into the Department of Justice Special Deposit Fund–State Asset Forfeiture Account and used for the law enforcement efforts of the state or for state or local law enforcement efforts pursuant to H&S § 11493.

All funds allocated to the Department of Justice by the federal government under its Federal Asset Forfeiture program authorized by the Comprehensive Crime Control Act of 1984 may be deposited directly into the Narcotics Assistance and Relinquishment by Criminal Offender Fund and used for state and local law enforcement efforts pursuant to H&S § 11493.

Funds which are not deposited pursuant to the above paragraph shall be deposited into the Department of Justice Special Deposit Fund–Federal Asset Forfeiture Account.

(d) All the funds distributed to the state or local governmental entity pursuant to subdivision (b)(2)(A) & (B) shall not supplant any state or local funds that would, in the absence of this subdivision, be made available to support the law enforcement and prosecutorial efforts of these agencies.

The court shall order the forfeiture proceeds distributed to the state, local, or state and local governmental entities as provided in this section.

For the purposes of this section, “local governmental entity” means any city, county, or city and county in this state.

(e) This section shall become operative on January 1, 1994.

H&S Code § 11553 (Amended; Effective June 27, 2017): Drug Testing as a Condition of Probation or Parole, or to Test for Addiction:

The fact that a person is or has been, or is suspected of being, a user of cannabis is not alone sufficient grounds upon which to invoke H&S §§ 11551 or 11552.

This section shall not be construed to limit the discretion of a judge to invoke H&S §§ 11551 or 11552 if the court has reason to believe a person is or has been a user of narcotics or drugs other than cannabis.

Note: H&S §§ 11551 and 11552 provide for (1) drug testing as a condition of probation or parole, or (2) (with the consent of the arrestee), drug testing to determine whether the arrestee is addicted to a controlled substance, respectively.

H&S Code § 109925 (Amended; Effective June 27, 2017): “Drug” Defined:

(a) “Drug” means any of the following:

(1) An article recognized in an official compendium.

(2) An article used or intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or any other animal.

(3) An article other than food, that is used or intended to affect the structure or any function of the body of human beings or any other animal.

(4) An article used or intended for use as a component of an article designated in paragraphs (1) to (3), inclusive.

(b) The term “drug” does not include any device.

(c) Any food for which a claim (as described in 21 U.S.C. § 403(r)(1)(B) (21 U.S.C. § 343(r)(1)(B)) and 21 U.S.C. § 403(r)(3) (21 U.S.C. § 343(r)(3)) or 21 U.S.C. § 403(r)(1)(B) (21 U.S.C. § 343(r)(1)(B)) and 21 U.S.C. § 403(r)(5)(D) (21 U.S.C. § 343(r)(5)(D)), is made in accordance with the requirements set forth in Section 21 U.S.C. § 403(r) (21 U.S.C. § 343(r)), is not a drug under subdivision (b) solely because the label or labeling contains such a claim.

(d) Cannabis product, including any cannabis product intended for external use, is not a drug.

H&S Code § 11107.2 (New): Non-Odorized Butane:

Subd. (a): Manufacturers, wholesalers, resellers, retailers or other persons or entities are prohibited from selling to any customer any quantity of non-odorized butane.

Subd. (b): Exceptions:

Butane sold to manufacturers, wholesalers, resellers, or retailers solely for the purpose of resale;

Butane sold to a person for use in a lawful commercial enterprise, including a volatile solvent extraction activity or a medical cannabis collective or cooperative;

The sale of pocket lighters, utility lighters, grill lighters, torch lighters, butane gas appliances, reﬁll canisters, gas cartridges or other products that contain or use nonodorized butane and contain fewer than 150 milliliters of butane; and

The sale of any product in which butane is used as an aerosol propellant. Deﬁnes “sell” or “sale” as “to furnish, give away, exchange, transfer, deliver, surrender, distribute, or supply, in exchange for money or any other consideration.”

Subd. (c): Provides that a violation is subject to a civil penalty of $2,500 and that a district attorney, city attorney, county counsel, or Attorney General may bring a civil enforcement action.

Subd. (d):

(1) “Customer” means any person or entity other than those described in subd. (b)(1) and (2) that purchases or acquires nonodorized butane from a seller during a transaction.

(2) “Nonodorized butane” means iso-butane, n-butane, butane, or a mixture of butane and propane of any power that may also use the words “refined,” “pure,” “purified,” “premium,” or “filtered,” to describe the butane or butane mixture, which does not contain ethyl mercaptan or a similar odorant.

(3) “Sell” or “sale” means to furnish, give away, exchange, transfer, deliver, surrender, distribute, or supply, in exchange for money or any other consideration.

(4) “Seller” means any person, business entity, or employee thereof that sells nonodorized butane to any customer within this state.

Note: Per the Legislative History of this bill, butane is being used by home labs to separate and extract hash oil from cannabis, resulting in a highly concentrated “hash oil,” creating a danger of explosions, injury, and death.

H&S Code § 11570: Buildings or Places Deemed Nuisances Subject to Abatement:

Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.

Water Code Provisions Related to the Cultivation of Cannabis:

Water Code § 1831 (Amended; Effective June 27, 2017): Cease and Desist Orders for Unlawful Diversions of Water:

(a) When the board determines that any person is violating, or threatening to violate, any requirement described in subdivision (d), the board may issue an order to that person to cease and desist from that violation.

(b) The cease and desist order shall require that person to comply forthwith or in accordance with a time schedule set by the board.

(c) The board may issue a cease and desist order only after notice and an opportunity for hearing pursuant to Water Code § 1834.

(d) The board may issue a cease and desist order in response to a violation or threatened violation of any of the following:

(1) The prohibition set forth in Water Code § 1052 against the unauthorized diversion or use of water subject to this division.

(2) Any term or condition of a permit, license, certification, or registration issued under this division.

(3) Any decision or order of the board issued under this part, Water Code §§ 275, 10735 et seq. (Part 2.74, Division 6 Chapter 11), or §§ 13550 et seq. (Division 7, Chapter 7), in which decision or order the person to whom the cease and desist order will be issued, or a predecessor in interest to that person, was named as a party directly affected by the decision or order.

(4) A regulation adopted under Water Code § 1058.5.

(5) Any extraction restriction, limitation, order, or regulation adopted or issued under Water Code §§ 10735 et seq. (Division 6, Part 2.74, Chapter 11).

(6) Any diversion or use of water for cannabis cultivation if any of paragraphs (1) to (5), inclusive, or any of the following applies:

(A) A license is required, but has not been obtained, under Bus. & Prof. Code §§ 26060 et seq. (Division 10, Chapter 6) or Bus. & Prof. Code §§ 26070 et seq. (Division 10, Chapter 7).

(B) The diversion is not in compliance with an applicable limitation or requirement established by the board or the Department of Fish and Wildlife under Water Code § 13149.

(C) The diversion or use is not in compliance with a requirement imposed under Bus. & Prof. § 26060.1(b)(1) & (2), and Bus. & Prof. Code § 26070(a)(3).

(e) This article does not alter the regulatory authority of the board under other provisions of law.

Water Code § 1847 (Amended; Effective June 27, 2017): Criminal Penalties and Civil Liability for Unlawful Diversion of Water:

(a) A person or entity may be liable for a violation of any of the requirements of subdivision (b) in an amount not to exceed the sum of the following:

(1) Five hundred dollars ($500), plus two hundred fifty dollars ($250) for each additional day on which the violation continues if the person fails to correct the violation within 30 days after the board has called the violation to the attention of that person.

(2) Two thousand five hundred dollars ($2,500) for each acre-foot of water diverted or used in violation of the applicable requirement.

(b) Liability may be imposed for any of the following violations:

(1) Violation of a principle, guideline, or requirement established by the board or the Department of Fish and Wildlife under Water Code § 13149.

(2) Failure to submit information, or making a material misstatement in information submitted, under Bus. & Pro. Code § 26060.1.

(3) Violation of any requirement imposed under Bus. & Pro. Code § 26060.1(b).

(4) Diversion or use of water for cannabis cultivation for which a license is required, but has not been obtained, under Bus. & Prof. Code §§ 26060 et seq. (Division 10, Chapter 6), or Bus. & Prof. Code §§ 26070 et seq. (Division 10, Chapter 7).

(c) Civil liability may be imposed by the superior court. The Attorney General, upon the request of the board, shall petition the superior court to impose, assess, and recover those sums.

(d) Civil liability may be imposed administratively by the board pursuant to Water Code § 1055.

Water Code § 13276 (Amended; Effective June 27, 2017): Environmental Impacts of Cannabis Cultivation and Statewide Enforcement:

(a) The multiagency task force, the Department of Fish and Wildlife and state board pilot project to address the Environmental Impacts of Cannabis Cultivation, assigned to respond to the damages caused by cannabis cultivation on public and private lands in California, shall continue its enforcement efforts on a permanent basis and expand them to a statewide level to ensure the reduction of adverse impacts of cannabis cultivation on water quality and on fish and wildlife throughout the state.

(b) The state board or the appropriate regional board shall address discharges of waste resulting from cannabis cultivation under Division 10 of the Business and Professions Code and associated activities, including by adopting a general permit, establishing waste discharge requirements, or taking action pursuant to Water Code § 13269. In addressing these discharges, the state board or the regional board shall include conditions to address items that include, but are not limited to, all of the following:

(1) Site development and maintenance, erosion control, and drainage features.

(2) Stream crossing installation and maintenance.

(3) Riparian and wetland protection and management.

(4) Soil disposal.

(5) Water storage and use.

(6) Irrigation runoff.

(7) Fertilizers and soil.

(8) Pesticides and herbicides.

(9) Petroleum products and other chemicals.

(10) Cultivation-related waste.

(11) Refuse and human waste.

(12) Cleanup, restoration, and mitigation.

The Religious Freedom Restoration Act; 42 U.S.C. §§ 2000bb et seq.:

The Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1(a), (b)) mandates that the federal government may not substantially burden a person's religious exercise unless it uses the least restrictive means to further a compelling interest. The American Indian Religious Freedom Act (42 U.S.C. § 1996) declares that it is “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to . . . exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians.” In a lawsuit under the first, the Government was granted summary judgment where plaintiffs alleged that the use of cannabis constituted an exercise of their religion. The summary judgment ruling was upheld. Per the Ninth Circuit Court of Appeal, no rational trier of fact could conclude on the record that a prohibition of cannabis use imposed a substantial burden under 41 U.S.C. § 2000bb-1(a), as nothing in the record demonstrated that a prohibition on cannabis forced plaintiffs to choose between obedience to their religion and criminal sanctions such that they were being coerced to act contrary to their religious beliefs. Also, the Government was properly granted summary judgment on plaintiffs’ claim under the American Indian Religious Freedom Act because the Act did not create a cause of action or any judicially enforceable individual rights. (Oklevueha Native Am. Church of Haw., Inc. v. Lynch (9th Cir. Apr. 6, 2016) __ F.3rd __ [2016 U.S.App. LEXIS 6275].)

The Religious Freedom Restoration Act of 1993 (42 U.S.C. §§ 2000bb et seq.) permitted federal prosecutions of ministers who admitted to using and distributing large quantities of cannabis but claimed that in doing so they were merely exercising their sincerely held religious beliefs because the government has a compelled interest in preventing drugs set aside for sacramental use from being diverted to non-religious, recreational users. There was specific evidence that the ministry’s distribution methods would result in distribution to outsiders who were merely feigning membership and adherence to the ministry’s religious tenets. Defendants did not put forth a viable less restrictive alternative by suggesting they could shut down their express distribution method if they were permitted to continue using and distributing cannabis in an allegedly more circumscribed manner. (United States v. Christie (9th Cir. 2016) 825 F.3rd 1048.)

Medical Marijuana and the Fifth Amendment:

A trial court properly denied an application by defendants—a medical marijuana collective and its president—for a preliminary injunction against a city’s attempts to stop them from operating the collective because there was no likelihood they would ultimately prevail in the city’s action to collect unpaid marijuana business taxes or on their cross-complaint. Although defendants contended that payment of the marijuana business tax would force the president to incriminate himself in violation of his Fifth Amendment privilege by admitting liability for violating federal drug laws, the self-incrimination privilege did not apply because the tax was not the obligation of the president, but rather, belonged to the collective. Under the “collective entity rule,” the president could not assert the Fifth Amendment to resist the tax. (City of San Jose v. Medimarts, Inc. (July 21, 2016) 1 Cal.App.5th 842.)

The “collective entity rule” provides that “representatives of a collective entity act as agents, and the official records of the organization that are held by them in a representative rather than a personal capacity cannot be the subject of their personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally . . . Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation, which possesses no such privilege.” (Braswell, supra, 487 U.S. at pp. 99–100.) Thus, while business records of a sole proprietor or practitioner may be protected from release by the Fifth Amendment, an individual ‘cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally.’” (Id., at pp. 851-852; citing Bellis v. United States (1974) 417 U.S. 85, 88, 93–101 [40 L.Ed.2nd 678].)

The Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA;”): With passage of Proposition 64 on November 9, 2016, as amended by the Legislature on June 27, 2017, and replacing and supplimenting the “Medical Cannabis Regulation and Safety Act” (Bus. & Prof. Code §§ 19300-19360), the below listed statutes regulating both the “medicinal” and the “recreational use” of cannabis (renamed from “marijuana”) became effective:

Department Responsibilities: As a result of MAUCRSA’s enactment, the following state departments are responsible for the following:

The Bureau of Cannabis Control (a division of the Department of Consumer Affairs): Regulating cannabis distribution, testing, and retail businesses. (See H&S § 11362.775(d), B&P Code §§ 26001(e), 26010, 26010.5, 26011, 26012(a)(1), 26014, 26031(e), 26050(b), 26051(c), 26055(f) & (g), 26060(b)(4), 26067, 26068, 26070, 26070.5, 26100, 26102, 26104, 26110, 26120, 26130(c)(5), 26133(g), 26135, 26140, 26162, 26190.5, 26191, 26200, 26210, 26210.5, 26211 and Rev. & Tax. Code §§ 34010(d) & (at)(2), 34019.)

The Department of Food and Agriculture: Regulating cannabis cultivation. (See H&S §§ 11362.769, 11018.5(b), B&P Code §§ 26012(a)(2), 26051.5(b)(7), 26060, 26060.1, 26061, 26062, 26062.5, 26063, 26067, 26068, 26069.1, 26069.9, 26070(e), 26120(c)(7), 26180, F&G Code § 1602(d)(1) & (3), and Rev. & Tax. Code §§ 34012(l), 34019(a)(2).)

The Department of Public Health: Regulating the manufacturing of cannabis products. (See H&S §§ 11362.7(b), 11362.713, B&P Code §§ 26012(a)(3), 26105, 26106, 26110(c)(2), 26120(c), 26130, 26132, 26133, 26134, 26134, 26180, and Rev. & Tax. Code § 34019(a)(2) & (f)(1).)

California Rules of Professional Conduct:

Rule 1.2.1: Concerns lawyers knowingly advising or assisting clients with violations of federal law if they are in compliance with state law:

Comment 6: A lawyer is permitted “to advise a client regarding the validity, scope and meaning of California laws that might conflict with federal or tribal law” and may assist a client in “drafting or administering, or interpreting or complying with California laws,” even if the client’s actions violate conflicting federal law.

B&P Code § 26000 (Amended: Effective June 27, 2017): Purpose and Intent:

(a) This division shall be known, and may be cited, as the Medicinal and Adult-Use Cannabis Regulation and Safety Act.

(b) The purpose and intent of this division is to establish a comprehensive system to control and regulate the cultivation, distribution, transport, storage, manufacturing, processing, and sale of both of the following:

(1) Medicinal cannabis and medicinal cannabis products for patients with valid physician’s recommendations.

(2) Adult-use cannabis and adult-use cannabis products for adults 21 years of age and over.

(c) In the furtherance of subdivision (b), this division sets forth the power and duties of the state agencies responsible for controlling and regulating the commercial medicinal and adult-use cannabis industry.

(d) The Legislature may, by majority vote, enact laws to implement this division, provided those laws are consistent with the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act.

B&P Code § 26001 (Amended: Effective June 27, 2017, & amended September 16, 2017): Definitions: For purposes of this division, the following definitions shall apply:

(a) “A-license” means a state license issued under this division for cannabis or cannabis products that are intended for adults who are 21 years of age and older and who do not possess a physician’s recommendation.

(b) “A-licensee” means any person holding a license under this division for cannabis or cannabis products that are intended for adults who are 21 years of age and older and who do not possess a physician’s recommendation.

(c) “Applicant” means an owner applying for a state license pursuant to this division.

(d) “Batch” means a specific quantity of homogeneous cannabis or cannabis product that is one of the following types:

(1) Harvest batch. “Harvest batch” means a specifically identified quantity of dried flower or trim, leaves, and other cannabis plant matter that is uniform in strain, harvested at the same time, and, if applicable, cultivated using the same pesticides and other agricultural chemicals, and harvested at the same time.

(2) Manufactured cannabis batch. “Manufactured cannabis batch” means either of the following:

(A) An amount of cannabis concentrate or extract that is produced in one production cycle using the same extraction methods and standard operating procedures.

(B) An amount of a type of manufactured cannabis produced in one production cycle using the same formulation and standard operating procedures.

(e) “Bureau” means the Bureau of Cannabis Control within the Department of Consumer Affairs, formerly named the Bureau of Marijuana Control, the Bureau of Medical Cannabis Regulation, and the Bureau of Medical Marijuana Regulation.

(f) “Cannabis” means all parts of the plant Cannabis sativa Linnaeus, 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. “Cannabis” also means the separated resin, whether crude or purified, obtained from cannabis. “Cannabis” 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 which is incapable of germination. For the purpose of this division, “cannabis” does not mean “industrial hemp” as defined by H&S Code § 11018.5.

(g) “Cannabis accessories” has the same meaning as in H&S Code § 11018.2.

(h) “Cannabis concentrate” means cannabis that has undergone a process to concentrate one or more active cannabinoids, thereby increasing the product’s potency. Resin from granular trichomes from a cannabis plant is a concentrate for purposes of this division. A cannabis concentrate is not considered food, as defined by H&S Code § 109935, or a drug, as defined by H&S Code § 109925.

(i) “Cannabis products” has the same meaning as in H&S Code § 11018.1.

(j) “Child resistant” means designed or constructed to be significantly difficult for children under five years of age to open, and not difficult for normal adults to use properly.

(k) “Commercial cannabis activity” includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products as provided for in this division.

(l) “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

(m) “Cultivation site” means a location where cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or a location where any combination of those activities occurs.

(n) “Customer” means a natural person 21 years of age or older or a natural person 18 years of age or older who possesses a physician’s recommendation, or a primary caregiver.

(o) “Day care center” has the same meaning as in H&S Code § 1596.76.

(p) “Delivery” means the commercial transfer of cannabis or cannabis products to a customer. “Delivery” also includes the use by a retailer of any technology platform.

(q) “Director” means the Director of Consumer Affairs.

(r) “Distribution” means the procurement, sale, and transport of cannabis and cannabis products between licensees.

(s) “Dried flower” means all dead cannabis that has been harvested, dried, cured, or otherwise processed, excluding leaves and stems.

(t) “Edible cannabis product” means cannabis product that is intended to be used, in whole or in part, for human consumption, including, but not limited to, chewing gum, but excluding products set forth in Food and Agricultural Code §§ 32501 et seq. (Division 15). An edible cannabis product is not considered food, as defined by H&S Code § 109935, or a drug, as defined by H&S Code § 109925.

(u) “Fund” means the Cannabis Control Fund established pursuant to B&P Code § 26210.

(v) “Kind” means applicable type or designation regarding a particular cannabis variant or cannabis product type, including, but not limited to, strain name or other grower trademark, or growing area designation.

(w) “Labeling” means any label or other written, printed, or graphic matter upon a cannabis product, upon its container or wrapper, or that accompanies any cannabis product.

(x) “Labor peace agreement” means an agreement between a licensee and any bona fide labor organization that, at a minimum, protects the state’s proprietary interests by prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the applicant’s business. This agreement means that the applicant has agreed not to disrupt efforts by the bona fide labor organization to communicate with, and attempt to organize and represent, the applicant’s employees. The agreement shall provide a bona fide labor organization access at reasonable times to areas in which the applicant’s employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under state law, and terms and conditions of employment. This type of agreement shall not mandate a particular method of election or certification of the bona fide labor organization.

(y) “License” means a state license issued under this division, and includes both an A-license and an M-license, as well as a testing laboratory license.

(z) “Licensee” means any person holding a license under this division, regardless of whether the license held is an A-license or an M-license, and includes the holder of a testing laboratory license.

(aa) “Licensing authority” means the state agency responsible for the issuance, renewal, or reinstatement of the license, or the state agency authorized to take disciplinary action against the licensee.

(ab) “Live plants” means living cannabis flowers and plants, including seeds, immature plants, and vegetative stage plants.

(ac) “Local jurisdiction” means a city, county, or city and county.

(ad) “Lot” means a batch or a specifically identified portion of a batch.

(ae) “M-license” means a state license issued under this division for commercial cannabis activity involving medicinal cannabis.

(af) “M-licensee” means any person holding a license under this division for commercial cannabis activity involving medicinal cannabis.

(ag) “Manufacture” means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product.

(ah) “Manufacturer” means a licensee that conducts the production, preparation, propagation, or compounding of cannabis or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages cannabis or cannabis products or labels or relabels its container.

(ai) “Medicinal cannabis” or “medicinal cannabis product” means cannabis or a cannabis product, respectively, intended to be sold for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at H&S Code § 11362.5, by a medicinal cannabis patient in California who possesses a physician’s recommendation.

(aj) “Nursery” means a licensee that produces only clones, immature plants, seeds, and other agricultural products used specifically for the propagation and cultivation of cannabis.

(ak) “Operation” means any act for which licensure is required under the provisions of this division, or any commercial transfer of cannabis or cannabis products.

(al) “Owner” means any of the following:

(1) A person with an aggregate ownership interest of 20 percent or more in the person applying for a license or a licensee, unless the interest is solely a security, lien, or encumbrance.

(2) The chief executive officer of a nonprofit or other entity.

(3) A member of the board of directors of a nonprofit.

(4) An individual who will be participating in the direction, control, or management of the person applying for a license.

(am) “Package” means any container or receptacle used for holding cannabis or cannabis products.

(an) “Person” includes any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular.

(ao) “Physician’s recommendation” means a recommendation by a physician and surgeon that a patient use cannabis provided in accordance with the Compassionate Use Act of 1996 (Proposition 215), found at H&S Code § 11362.5.

(ap) “Premises” means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the applicant or licensee where the commercial cannabis activity will be or is conducted. The premises shall be a contiguous area and shall only be occupied by one licensee.

(aq) “Primary caregiver” has the same meaning as in H&S Code § 11362.7.

(ar) “Purchaser” means the customer who is engaged in a transaction with a licensee for purposes of obtaining cannabis or cannabis products.

(as) “Sell,” “sale,” and “to sell” include any transaction whereby, for any consideration, title to cannabis or cannabis products is transferred from one person to another, and includes the delivery of cannabis or cannabis products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of cannabis or cannabis products by a licensee to the licensee from whom the cannabis or cannabis product was purchased.

(at) “Testing laboratory” means a laboratory, facility, or entity in the state that offers or performs tests of cannabis or cannabis products and that is both of the following:

(1) Accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity in the state.

(2) Licensed by the bureau.

(au) “Unique identifier” means an alphanumeric code or designation used for reference to a specific plant on a licensed premises and any cannabis or cannabis product derived or manufactured from that plant.

(av) “Youth center” has the same meaning as in H&S Code § 11353.1.

B&P Code § 26002 (Effective 1/1/2009): Exception for Products Containing Cannabidiol:

The Medicinal and Adult-Use Cannabis Regulation & Safety Act (MAUCRSA: B&P §§ 26000–26231.2) does not apply to any product containing cannabidiol (CBD) that has been approved by the federal Food and Drug Administration (FDA) and that has either been placed in a federal schedule other than Schedule I or has been exempted from one or more provisions of the federal Controlled Substances Act, and that is intended for prescribed use to treat a medical condition.

See also H&S § 11150.2 (Effective 7/9/2018) that permits the prescribing and dispensing of a product containing cannabidiol when the above conditions are met:

Upon the date of a speciﬁed change in federal law (i.e., September 27, 2018), a product containing cannabidiol may be prescribed, furnished, dispensed, or possessed. The section speciﬁes that the federal law change must be either: 1. the moving of cannabidiol from Schedule I of the federal Controlled Substances Act to a different Schedule, or the U.S. Food and Drug Administration (FDA) approving a product containing cannabidiol and either cannibidiol being moved from Schedule I or being exempted from one or more provisions of the federal Controlled Substances Act so as to permit a physician or pharmacist to prescribe or dispense it.

B&P Code § 26010 (New: Effective June 27, 2017): Director: Bureau of Cannabis Control:

There is in the Department of Consumer Affairs the Bureau of Cannabis Control, under the supervision and control of the director. The director shall administer and enforce the provisions of this division related to the bureau.

B&P Code § 26010.5 (New: Effective June 27, 2017): Chief and Employees of the Bureau of Cannabis Control; Powers:

(a) The Governor shall appoint a chief of the (B)ureau (of Cannabis Control), subject to confirmation by the Senate, at a salary to be fixed and determined by the Director of Consumer Affairs with the approval of the Director of Finance. The chief shall serve under the direction and supervision of the Director of Consumer Affairs and at the pleasure of the Governor.

(b) Every power granted to or duty imposed upon the Director of Consumer Affairs under this division may be exercised or performed in the name of the director by a deputy or assistant director or by the chief, subject to conditions and limitations that the director may prescribe. In addition to every power granted or duty imposed under this division, the director shall have all other powers and duties generally applicable in relation to bureaus that are part of the Department of Consumer Affairs.

(c) The Director of Consumer Affairs may employ and appoint all employees necessary to properly administer the work of the bureau, in accordance with civil service laws and regulations. The Governor may also appoint a deputy chief and an assistant chief counsel to the bureau. These positions shall hold office at the pleasure of the Governor.

(d) The bureau has the power, duty, purpose, responsibility, and jurisdiction to regulate commercial cannabis activity as provided in this division.

(e) The bureau and the director shall succeed to and are vested with all the duties, powers, purposes, responsibilities, and jurisdiction formerly vested in the Bureau of Marijuana Control, also formerly known as the Bureau of Medical Cannabis Regulation and the Bureau of Medical Marijuana Regulation, under the former Medical Cannabis Regulation and Safety Act; B&P Code §§ 19300 et seq. (former Chapter 3.5 of Division 8).

(f) Upon the effective date of this section, whenever “Bureau of Marijuana Control,” “Bureau of Medical Cannabis Regulation,” or “Bureau of Medical Marijuana Regulation” appears in any statute, regulation, or contract, or in any other code, it shall be construed to refer to the bureau.

(g) Upon the effective date of this section, whenever any reference to the former Medical Cannabis Regulation and Safety Act; B&P Code §§ 19300 et seq. (former Chapter 3.5 of Division 8) appears in any statute, regulation, contract, or in any other code, it shall be construed to refer to this division as it relates to medicinal cannabis and medicinal cannabis products.

B&P Code § 26011 (Amended: Effective June 27, 2017): Marijuana Control Appeals Panel; Prohibited Actions:

Neither the chief of the bureau nor any member of the Cannabis Control Appeals Panel established under B&P § 26040 shall do any of the following:

(a) Receive any commission or profit whatsoever, directly or indirectly, from any person applying for or receiving any license or permit under this division.

(b) Engage or have any interest in the sale or any insurance covering a licensee’s business or premises.

(c) Engage or have any interest in the sale of equipment for use upon the premises of a licensee engaged in commercial cannabis activity.

(d) Knowingly solicit any licensee for the purchase of tickets for benefits or contributions for benefits.

(e) Knowingly request any licensee to donate or receive money, or any other thing of value, for the benefit of any person whatsoever.

B&P Code § 26011.5 (New: Effective June 27, 2017): Protection of the Public:

The protection of the public shall be the highest priority for all licensing authorities in exercising licensing, regulatory, and disciplinary functions under this division. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.

B&P Code § 26012 (Amended: Effective June 27, 2017): Authority of the Various Departments:

(a) It being a matter of statewide concern, except as otherwise authorized in this division:

(1) The bureau shall have the sole authority to create, issue, deny, renew, discipline, suspend, or revoke licenses for microbusinesses, transportation, storage unrelated to manufacturing activities, distribution, testing, and sale of cannabis and cannabis products within the state.

(2) The Department of Food and Agriculture shall administer the provisions of this division related to and associated with the cultivation of cannabis. The Department of Food and Agriculture shall have the authority to create, issue, deny, and suspend or revoke cultivation licenses for violations of this division.

P.C. § 830.11: Persons employed by the Dep’t. of Food and Agriculture and designated as investigators whose primary duty is the enforcement of, and investigations relating to, Division 10 of the Business and Professions Code (Cannabis: B&P §§ 26000–26231.2) are among the list of persons who are not peace officers but may exercise the power of arrest and the power to serve search warrants within the scope of their employment if they take a course in the exercise of those powers.

(3) The State Department of Public Health shall administer the provisions of this division related to and associated with the manufacturing of cannabis products. The State Department of Public Health shall have the authority to create, issue, deny, and suspend or revoke manufacturing licenses for violations of this division.

(b) The licensing authorities shall have the authority to collect fees in connection with activities they regulate concerning cannabis. The licensing authorities may create licenses in addition to those identified in this division that the licensing authorities deem necessary to effectuate their duties under this division.

(c) For the performance of its duties, each licensing authority has the power conferred by Gov’t. Code §§ 11180 to 11191, inclusive.

(d) Licensing authorities shall begin issuing licenses under this division by January 1, 2018.

B&P Code § 26013 (Amended: Effective June 27, 2017): Rulemaking and Regulation by Licensing Authorities:

(a) Licensing authorities shall make and prescribe reasonable rules and regulations as may be necessary to implement, administer and enforce their respective duties under this division in accordance with Gov’t. Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5). Those rules and regulations shall be consistent with the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act.

(b)

(1) Each licensing authority may adopt emergency regulations to implement this division.

(2) Each licensing authority may readopt any emergency regulation authorized by this section that is the same as, or substantially equivalent to, an emergency regulation previously adopted as authorized by this section. Any such readoption shall be limited to one time for each regulation.

(3) Notwithstanding any other law, the initial adoption of emergency regulations and the readoption of emergency regulations authorized by this section shall be deemed an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare. The initial emergency regulations and the readopted emergency regulations authorized by this section shall be each submitted to the Office of Administrative Law for filing with the Secretary of State and shall remain in effect for no more than 180 days, by which time final regulations may be adopted.

(c) Regulations issued under this division shall be necessary to achieve the purposes of this division, based on best available evidence, and shall mandate only commercially feasible procedures, technology, or other requirements, and shall not unreasonably restrain or inhibit the development of alternative procedures or technology to achieve the same substantive requirements, nor shall such regulations make compliance so onerous that the operation under a cannabis license is not worthy of being carried out in practice by a reasonably prudent businessperson.

B&P Code § 26013.5 (New: Effective June 27, 2017): Notice of any action of a licensing authority:

Notice of any action of a licensing authority required by this division to be given may be signed and given by the director of the licensing authority or an authorized employee of the licensing authority and may be made personally or in the manner prescribed by Code of Civ. Proc. § 1013, or in the manner prescribed by B&P Code § 124.

B&P Code § 26014: Advisory Committee on Standards and Regulations; Annual Public Report:

(a) A licensed testing laboratory shall, in performing activities concerning cannabis and cannabis products, comply with the requirements and restrictions set forth in applicable law and regulations.

(b) The bureau shall develop procedures to do all of the following:

(1) Ensure that testing of cannabis and cannabis products occurs prior to distribution to retailers, microbusinesses, or nonprofits licensed under Section 26070.5.

(2) Specify how often licensees shall test cannabis and cannabis products, and that the cost of testing cannabis shall be borne by the licensed cultivators and the cost of testing cannabis products shall be borne by the licensed manufacturer, and that the costs of testing cannabis and cannabis products shall be borne by a nonprofit licensed under Section 26070.5.

(3) Require destruction of harvested batches whose testing samples indicate noncompliance with health and safety standards required by the bureau, unless remedial measures can bring the cannabis or cannabis products into compliance with quality assurance standards as specified by law and implemented by the bureau.

(4) Ensure that a testing laboratory employee takes the sample of cannabis or cannabis products from the distributor’s premises for testing required by this division and that the testing laboratory employee transports the sample to the testing laboratory.

(c) Except as provided in this division, a testing laboratory shall not acquire or receive cannabis or cannabis products except from a licensee in accordance with this division, and shall not distribute, sell, or dispense cannabis or cannabis products, from the licensed premises from which the cannabis or cannabis products were acquired or received. All transfer or transportation shall be performed pursuant to a specified chain of custody protocol.

(d) A testing laboratory may receive and test samples of cannabis or cannabis products from a qualified patient or primary caregiver with a valid physician’s recommendation for cannabis for medicinal purposes. A testing laboratory shall not certify samples from a qualified patient or primary caregiver for resale or transfer to another person or licensee. All tests performed by a testing laboratory for a qualified patient or primary caregiver shall be recorded with the name of the qualified patient or primary caregiver and the amount of cannabis or cannabis product received.

(e) A testing laboratory may receive and test samples of cannabis or cannabis products from a person over 21 years of age when the cannabis has been grown by that person and will be used solely for his or her personal use, as authorized pursuant to Section 11362.1 of the Health and Safety Code. A testing laboratory shall not certify samples from the person over 21 years of age for resale or transfer to another person or licensee. All tests recorded pursuant to this subdivision shall be recorded with the name of the person submitting the sample and the amount of cannabis or cannabis product received.

B&P Code § 26015 (New: Effective Nov. 9, 2016): Conduct of Investigations by Licensing Authority:

A licensing authority may make or cause to be made such investigation as it deems necessary to carry out its duties under this division.

Effective 1/1/21: The chief of enforcement and all investigators, inspectors, and deputies of the Bureau of Cannabis Control identified by the Director of Consumer Affairs have the authority of peace officers while engaged in exercising the powers granted or performing the duties imposed upon them in investigating the laws administered by the Department of Consumer Affairs or when commencing any criminal prosecution arising from any investigation conducted under these laws.

B&P Code § 26016 (New: Effective Nov. 9, 2016): Hearings Before Licensing Authority; Delegation of Power to Administrative Law Judge:

For any hearing held pursuant to this division, except a hearing held under Chapter 4 (B&P Code §§ 26040 et seq.), a licensing authority may delegate the power to hear and decide to an administrative law judge. Any hearing before an administrative law judge shall be pursuant to the procedures, rules, and limitations prescribed in Gov’t. Code §§ 11500 et seq.

B&P Code § 26017 (New: Effective Nov. 9, 2016): Hearings Before Licensing Authority; Reimbursement of Witness for Expenses:

In any hearing before a licensing authority pursuant to this division, the licensing authority may pay any person appearing as a witness at the hearing at the request of the licensing authority pursuant to a subpoena, his or her actual, necessary, and reasonable travel, food, and lodging expenses, not to exceed the amount authorized for state employees.

B&P Code § 26018 (New: Effective Nov. 9, 2016): Hearings Before Licensing Authority; Penalty Review:

A licensing authority may on its own motion at any time before a penalty assessment is placed into effect, and without any further proceedings, review the penalty, but such review shall be limited to its reduction.

B&P Code § 26030 (Amended: Effective June 27, 2017): Grounds for Disciplinary Action: Grounds for disciplinary action include, but are not limited to, all of the following:

(a) Failure to comply with the provisions of this division or any rule or regulation adopted pursuant to this division.

(b) Conduct that constitutes grounds for denial of licensure pursuant to B&P Code §§ 480 et seq. (Division 1.5, Chapter 2) or discipline of a license pursuant to B&P §§ 490 et seq. (Division 1.5, Chapter 3).

(c) Any other grounds contained in regulations adopted by a licensing authority pursuant to this division.

(d) Failure to comply with any state law including, but not limited to, the payment of taxes as required under the Revenue and Taxation Code, except as provided for in this division or other California law.

(e) Knowing violations of any state or local law, ordinance, or regulation conferring worker protections or legal rights on the employees of a licensee.

(f) Failure to comply with the requirement of a local ordinance regulating commercial cannabis activity.

(g) The intentional and knowing sale of cannabis or cannabis products by an A-licensee to a person under 21 years of age.

(h) The intentional and knowing sale of medicinal cannabis or medicinal cannabis products by an M-licensee to a person without a physician’s recommendation.

(i) Failure to maintain safe conditions for inspection by a licensing authority.

(j) Failure to comply with any operating procedure submitted to the licensing authority pursuant to B&P Code § 26051.5(b).

(k) Failure to comply with license conditions established pursuant to B&P § 26060.1(b).

B&P Code § 26031 (Amended: Effective June 27, 2017): Suspension or Revocation of License by Licensing Authority:

(a) Each licensing authority may suspend, revoke, place on probation with terms and conditions, or otherwise discipline licenses issued by that licensing authority and fine a licensee, after proper notice and hearing to the licensee, if the licensee is found to have committed any of the acts or omissions constituting grounds for disciplinary action. The disciplinary proceedings under this chapter shall be conducted in accordance with Gov’t. Code §§ 11500 et seq. (Title 2, Part 1, Division 3, Chapter 5), and the director of each licensing authority shall have all the powers granted therein.

(b) A licensing authority may suspend or revoke a license when a local agency has notified the licensing authority that a licensee within its jurisdiction is in violation of state rules and regulations relating to commercial cannabis activities, and the licensing authority, through an investigation, has determined that the violation is grounds for suspension or revocation of the license.

(c) Each licensing authority may take disciplinary action against a licensee for any violation of this division when the violation was committed by the licensee’s officers, directors, owners, agents, or employees while acting on behalf of the licensee or engaged in commercial cannabis activity.

(d) A licensing authority may recover the costs of investigation and enforcement of a disciplinary proceeding pursuant to B&P § 125.3.

(e) Upon suspension or revocation of a license, the licensing authority shall inform the bureau. The bureau shall then inform all other licensing authorities. Upon any other enforcement action against a licensee, the licensing authority shall notify all other licensing authorities.

B&P Code § 26031.5 (Effective July. 1, 2019): Citations:

(a) A licensing authority may issue a citation to a licensee or unlicensed person for any act or omission that violates or has violated any provision of this division or any regulation adopted pursuant thereto. The licensing authority shall issue the citation in writing, and shall describe with particularity the basis of the citation and the notification described in subdivision (c). The licensing authority may include in each citation an order of abatement and fix a reasonable time for abatement of the violation. The licensing authority may, as part of each citation, assess an administrative fine not to exceed five thousand dollars ($5,000) per violation by a licensee and thirty thousand dollars ($30,000) per violation by an unlicensed person. Each day of violation shall constitute a separate violation. In assessing a fine, a licensing authority shall give due consideration to the appropriateness of the amount of the fine with respect to factors the licensing authority determines to be relevant, including the following:

(1) The gravity of the violation by the licensee or person.

(2) The good faith of the licensee or person.

(3) The history of previous violations.

(b) The sanctions authorized under this section shall be separate from, and in addition to, all other administrative, civil, or criminal remedies.

(c) A licensing authority that issues a citation pursuant to this section shall include a provision that notifies the licensee or person that a hearing may be requested to contest the finding of a violation by submitting a written request within 30 days from service of the citation. The hearing shall be held pursuant to the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), unless held in accordance with the provisions of Chapter 4.5 (commencing with Section 11400) as authorized by regulation of the licensing authority. If the licensee or person cited fails to submit a written request for a hearing within 30 days from the date of service of the citation, the right to a hearing is waived and the citation shall be deemed a final order of the licensing authority and is not subject to review by any court.

(d) After the exhaustion of the administrative and judicial review procedures, a licensing authority may apply to the appropriate superior court for a judgment in the amount of the administrative fine and an order compelling the cited person to comply with the order of the licensing authority. The application, which shall include a certified copy of the final order of the licensing authority, shall constitute a sufficient showing to warrant the issuance of the judgment and order.

(e) A licensing authority may recover from the licensee or person who was the subject of the citation costs of investigation and enforcement, which may include reasonable attorney’s fees for the services rendered. If the licensing authority recovers costs from a licensee, the licensing authority shall recover the costs pursuant to Section 125.3.

(f) Fines shall be paid within 30 days of service of a citation by the licensing authority. Failure to pay a fine assessed pursuant to this section within 30 days of the date of service of the citation, unless the citation is being appealed, shall constitute a separate violation under this division subject to additional action by a licensing authority. A licensing authority shall not renew or grant a license to a person who was the subject of the fine until that person pays the fine.

(g) All moneys collected pursuant to this section associated with the recovery of investigation and enforcement costs shall be deposited into the Cannabis Control Fund. Any administrative fine amount shall be deposited directly into the Cannabis Fines and Penalties Account and shall be distributed pursuant to subdivision (d) of Section 26210.

B&P Code § 26032 (Effective June 27, 2017): Lawful Actions of a Licensee, Employee, and Agents, or Others in Good Faith:

(a) The actions of a licensee, its employees, and its agents are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law if they are all of the following:

(1) Permitted pursuant to a state license.

(2) Permitted pursuant to a local authorization, license, or permit issued by the local jurisdiction, if any.

(3) Conducted in accordance with the requirements of this division and regulations adopted pursuant to this division.

(b) The actions of a person who, in good faith, allows his or her property to be used by a licensee, its employees, and its agents, as permitted pursuant to a state license and, if required by the applicable local ordinances, a local license or permit, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law.

B&P Code § 26033 (New: Effective June 27, 2017): Activities of Qualified Patients and Caregivers:

(a) A qualified patient, as defined in H&S § 11362.7, who cultivates, possesses, stores, manufactures, or transports cannabis exclusively for his or her personal medical use but who does not provide, donate, sell, or distribute cannabis to any other person is not thereby engaged in commercial cannabis activity and is therefore exempt from the licensure requirements of this division.

(b) A primary caregiver who cultivates, possesses, stores, manufactures, transports, donates, or provides cannabis exclusively for the personal medical purposes of no more than five specified qualified patients for whom he or she is the primary caregiver within the meaning of H&S § 11362.7, but who does not receive remuneration for these activities except for compensation in full compliance with H&S § 11362.765(c), is exempt from the licensure requirements of this division.

B&P Code § 26034 (New: Effective June 27, 2017): Accusations Against Licensees; Time Limitation:

All accusations against licensees shall be filed by the licensing authority within five years after the performance of the act or omission alleged as the ground for disciplinary action; provided, however, that the foregoing provision shall not constitute a defense to an accusation alleging fraud or misrepresentation as a ground for disciplinary action. The cause for disciplinary action in that case shall not be deemed to have accrued until discovery, by the licensing authority, of the facts constituting the fraud or misrepresentation, and, in that case, the accusation shall be filed within five years after that discovery.

B&P Code § 26035 (New: Effective Nov. 9, 2016): Designation of Persons to Administer and Enforce Division; Qualified Peace Officers:

The director shall designate the persons employed by the Department of Consumer Affairs for purposes of the administration and enforcement of this division. The director shall ensure that a sufficient number of employees are qualified peace officers for purposes of enforcing this division.

B&P Code § 26036 (New: Effective Nov. 9, 2016): Existing Enforcement Authority of Other State Agencies:

Nothing in this division shall be interpreted to supersede or limit state agencies from exercising their existing enforcement authority, including, but not limited to, under the Fish and Game Code, the Food and Agricultural Code, the Government Code, the Health and Safety Code, the Public Resources Code, the Water Code, or the application of those laws.

B&P Code § 26037 (New: Effective Nov. 9, 2016): Actions Permitted Under License not Unlawful:

(a) The actions of a licensee, its employees, and its agents that are (1) permitted under a license issued under this division and any applicable local ordinances and (2) conducted in accordance with the requirements of this division and regulations adopted pursuant to this division, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law.

(b) The actions of a person who, in good faith, allows his or her property to be used by a licensee, its employees, and its agents, as permitted pursuant to a state license and any applicable local ordinances, are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state law.

B&P Code § 26038 (Amended: Effective June 27, 2017): Unlicensed Commercial Marijuana Activities; Civil Penalties:

(a) A person engaging in commercial cannabis activity without a license required by this division shall be subject to civil penalties of up to three times the amount of the license fee for each violation, and the court may order the destruction of cannabis associated with that violation in accordance with H&S § 11479. Each day of operation shall constitute a separate violation of this section. All civil penalties imposed and collected pursuant to this section by a licensing authority shall be deposited into the General Fund except as provided in subdivision (b). A violator shall be responsible for the cost of the destruction of cannabis associated with his or her violation.

(b) If an action for civil penalties is brought against a person pursuant to this division by the Attorney General on behalf of the people, the penalty collected shall be deposited into the General Fund. If the action is brought by a district attorney or county counsel, the penalty shall first be used to reimburse the district attorney or county counsel for the costs of bringing the action for civil penalties, with the remainder, if any, to be deposited into the General Fund. If the action is brought by a city attorney or city prosecutor, the penalty collected shall first be used to reimburse the city attorney or city prosecutor for the costs of bringing the action for civil penalties, with the remainder, if any, to be deposited into the General Fund.

(c) Notwithstanding subdivision (a), criminal penalties shall continue to apply to an unlicensed person engaging in commercial cannabis activity in violation of this division.

B&P Code § 26040 (Amended: Effective June 27, 2017, amended September 16, 2017): Cannabis Control Appeals Panel:

(a)

(1) There is established in state government a Cannabis Control Appeals Panel which shall consist of the following members:

(A) One member appointed by the Senate Committee on Rules.

(B) One member appointed by the Speaker of the Assembly.

(C) Three members appointed by the Governor and subject to confirmation by a majority vote of all of the members elected to the Senate.

(2) Each member, at the time of his or her initial appointment, shall be a resident of a different county from the one in which either of the other members resides. Members of the panel shall receive an annual salary as provided for by Gov’t Code §§ 11550 et seq. (Title 2, Division 3, Part 1, Chapter 6).

(b) The members of the panel appointed pursuant to subdivision (a)(1)(C) may be removed from office by the Governor, and the Legislature shall have the power, by a majority vote of all members elected to each house, to remove any member of the panel from office for dereliction of duty, corruption, or incompetency.

(c) A concurrent resolution for the removal of any member of the panel may be introduced in the Legislature only if 5 Members of the Senate, or 10 Members of the Assembly, join as authors.

Note: See Gov’t. Code §§ 11553 & 11553.5 (amended Sep. 16, 2017) for the statutorily provided salaries for the Chairperson and other Members of the Cannabis Control Appeals Panel and other associated agencies.

B&P Code § 26041 (New: Effective Nov. 9, 2016): Employment of Personnel; Equipment, Supplies, and Housing:

All personnel of the panel shall be appointed, employed, directed, and controlled by the panel consistent with state civil service requirements. The director shall furnish the equipment, supplies, and housing necessary for the authorized activities of the panel and shall perform such other mechanics of administration as the panel and the director may agree upon.

B&P Code § 26042 (New: Effective Nov. 9, 2016): Adoption of Appeals Procedures:

The panel shall adopt procedures for appeals similar to the procedures used in Article 3 (B&P Code §§ 23075 et seq.) and Article 4 (B&P §§ 23080 et seq.) of Chapter 1.5 of Division 9. Such procedures shall be adopted in accordance with the Administrative Procedure Act; Gov’t. Code §§ 11340 et seq.

B&P Code § 26043 (Amended: Effective June 27, 2017): Review of Decision Against Aggrieved Person:

(a) After proceedings pursuant to B&P Code §§ 26031 or 26058, or B&P §§ 480 et. seq. (Division 1.5, Chapter 2), or B&P Code §§ 490 et seq. (Division 1.5, Chapter 3), any person aggrieved by the decision of a licensing authority denying the person’s application for any license, denying the person’s renewal of any license, placing any license on probation, imposing any condition on any license, imposing any fine on any license, assessing any penalty on any license, or canceling, suspending, revoking, or otherwise disciplining any license as provided for under this division, may appeal the licensing authority’s written decision to the panel.

(b) The panel shall review the decision subject to such limitations as may be imposed by the Legislature. In such cases, the panel shall not receive evidence in addition to that considered by the licensing authority.

(c) Review by the panel of a decision of a licensing authority shall be limited to the following questions:

(1) Whether the licensing authority has proceeded without or in excess of its jurisdiction.

(2) Whether the licensing authority has proceeded in the manner required by law.

(3) Whether the decision is supported by the findings.

(4) Whether the findings are supported by substantial evidence in the light of the whole record.

B&P Code § 26044 (Amended: Effective June 27, 2017): Remand for Evidentiary Concerns; Entry of Order:

(a) In appeals where the panel finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before the licensing authority, it may enter an order remanding the matter to the licensing authority for reconsideration in the light of that evidence.

(b) Except as provided in subdivision (a), in all appeals, the panel shall enter an order either affirming or reversing the decision of the licensing authority. When the order reverses the decision of the licensing authority, the panel may direct the reconsideration of the matter in the light of its order and may direct the licensing authority to take such further action as is specially enjoined upon it by law, but the order shall not limit or control in any way the discretion vested by law in the licensing authority.

B&P Code § 26045 (New: Effective June 27, 2017): Judicial Review:

(a) No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this chapter, shall have jurisdiction to review, affirm, reverse, correct, or annul any order, rule, or decision of a licensing authority or to suspend, stay, or delay the operation or execution thereof, or to restrain, enjoin, or interfere with a licensing authority in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the courts of appeal in any proper case.

(b) Any person affected by a final order of the panel, including a licensing authority, may apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of that final order.

(c) The application for writ of review shall be made within 30 days after filing of the final order.

(d) The provisions of the Code of Civil Procedure relating to writs of review shall, insofar as applicable, apply to proceedings in the courts as provided by this chapter. A copy of every pleading filed pursuant to this chapter shall be served on the panel, the licensing authority, and on each party who entered an appearance before the panel.

(e) No decision of a licensing authority that has been appealed to the panel and no final order of the panel shall become effective during the period in which application may be made for a writ of review, as provided by subdivision (c).

(f) The filing of a petition for, or the pendency of, a writ of review shall not of itself stay or suspend the operation of any order, rule, or decision of a licensing authority, but the court before which the petition is filed may stay or suspend, in whole or in part, the operation of the order, rule, or decision of the licensing authority subject to review, upon the terms and conditions which it by order directs.

B&P Code § 26046 (New: Effective June 27, 2017): Judicial Review; Limitations:

(a) The review by the court shall not extend further than to determine, based on the whole record of the licensing authority as certified by the panel, whether:

(1) The licensing authority has proceeded without or in excess of its jurisdiction.

(2) The licensing authority has proceeded in the manner required by law.

(3) The decision of the licensing authority is supported by the findings.

(4) The findings in the licensing authority’s decision are supported by substantial evidence in the light of the whole record.

(5) There is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before the licensing authority.

(b) Nothing in this chapter shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.

B&P Code § 26047 (New: Effective June 27, 2017): Questions of Fact:

The findings and conclusions of the licensing authority on questions of fact are conclusive and final and are not subject to review. Those questions of fact shall include ultimate facts and the findings and conclusions of the licensing authority. The panel, the licensing authority, and each party to the action or proceeding before the panel shall have the right to appear in the review proceeding. Following the hearing, the court shall enter judgment either affirming or reversing the decision of the licensing authority, or the court may remand the case for further proceedings before or reconsideration by the licensing authority.

B&P Code § 26050 (New: Effective June 27, 2017): License Classification; Required Designation; Term; Issuance and Renewal; Temporary License:

(a) The license classification pursuant to this division shall, at a minimum, be as follows:

(1) Type 1—Cultivation; Specialty outdoor; Small.

(2) Type 1A—Cultivation; Specialty indoor; Small.

(3) Type 1B—Cultivation; Specialty mixed-light; Small.

(4) Type 1C—Cultivation; Specialty cottage; Small.

(5) Type 2—Cultivation; Outdoor; Small.

(6) Type 2A—Cultivation; Indoor; Small.

(7) Type 2B—Cultivation; Mixed-light; Small.

(8) Type 3—Cultivation; Outdoor; Medium.

(9) Type 3A—Cultivation; Indoor; Medium.

(10) Type 3B—Cultivation; Mixed-light; Medium.

(11) Type 4—Cultivation; Nursery.

(12) Type 5—Cultivation; Outdoor; Large.

(13) Type 5A—Cultivation; Indoor; Large.

(14) Type 5B—Cultivation; Mixed-light; Large.

(15) Type 6—Manufacturer 1.

(16) Type 7—Manufacturer 2.

(17) Type 8—Testing laboratory.

(18) Type 10—Retailer.

(19) Type 11—Distributor.

(20) Type 12—Microbusiness.

(b) With the exception of testing laboratory licenses, which may be used to test cannabis and cannabis products regardless of whether they are intended for use by individuals who possesses a physician’s recommendation, all licenses issued under this division shall bear a clear designation indicating whether the license is for commercial adult-use cannabis activity as distinct from commercial medicinal cannabis activity by prominently affixing an “A” or “M,” respectively. Examples of such a designation include, but are not limited to, “A-Type 1” or “M-Type 1.” Except as specifically specified in this division, the requirements for A-licenses and M-licenses shall be the same. For testing laboratories, the bureau shall create a license that indicates a testing laboratory may test both adult-use and medicinal cannabis.

(c) A license issued pursuant to this division shall be valid for 12 months from the date of issuance. The license may be renewed annually.

(d) Each licensing authority shall establish procedures for the issuance and renewal of licenses.

B&P Code § 26050.1 (New: Effective June 27, 2017): Temporary Licenses:

(a) Notwithstanding B&P § 26050(c), until January 1, 2019, a licensing authority may, in its sole discretion, issue a temporary license if the applicant submits all of the following:

(1) A written request to the licensing authority in a manner prescribed by the licensing authority.

(2) A copy of a valid license, permit, or other authorization, issued by a local jurisdiction, that enables the applicant to conduct commercial cannabis activity at the location requested for the temporary license.

(3) The temporary license application fee, if any, required by the licensing authority.

(b) Temporary licenses issued pursuant to this section are subject to the following conditions:

(1) Except as provided for in paragraph (4) below, the temporary license shall be valid for a period of 120 days and may be extended for additional 90-day periods at the discretion of the licensing authority. Temporary licenses shall only be eligible for an extension of the expiration date if the applicant has submitted a complete application for licensure pursuant to regulations adopted under this division.

(2) A temporary license is a conditional license and authorizes the holder thereof to engage in commercial cannabis activity as would be permitted under the privileges of the license for which the applicant has submitted an application to the licensing authority.

(3) Refusal by the licensing authority to issue or extend a temporary license shall not entitle the applicant to a hearing or appeal of the decision. B&P §§ 480 et seq. (Division 1.5, Chapter 2) and B&P §§ 26040 et seq. (Chapter 4) of this division shall not apply to temporary licenses.

(4) A temporary license does not obligate the licensing authority to issue a nontemporary license nor does the temporary license create a vested right in the holder to either an extension of the temporary license or to the granting of a subsequent nontemporary license.

(c) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

B&P Code § 26051 (New: Effective June 27, 2017): Monopolizing the Cannabis Trade or Commerce:

(a) The Cartwright Act, the Unfair Practices Act, the Unfair Competition Law, and the other provisions of B&P §§ 16600 et seq. (Division 7, Part 2) apply to all licensees regulated under this division.

(b) It shall be unlawful for any person to monopolize, or attempt to monopolize, or to combine or conspire with any person or persons, to monopolize any part of the trade or commerce related to cannabis. The Attorney General shall have the sole authority to enforce the provisions of this subdivision.

(c) In determining whether to grant, deny, or renew a license for a retail license, microbusiness license, or a license issued under B&P § 26070.5, the bureau shall consider if an excessive concentration exists in the area where the licensee will operate. For purposes of this section “excessive concentration” applies when either of the following conditions exist:

(1) The ratio of a licensee to population in the census tract or census division in which the applicant premises are located exceeds the ratio of licensees to population in the county in which the applicant premises are located, unless denial of the application would unduly limit the development of the legal market so as to perpetuate the illegal market for cannabis or cannabis products.

(2) The ratio of retail licenses, microbusiness licenses, or licenses under B&P Code § 26070.5 to the population in the census tract, census division, or jurisdiction exceeds that allowable by local ordinance adopted under B&P Code § 26200.

B&P Code § 26051.5 (New; 3/13/18; Amended: 6/27/18): License Applications; Prerequisites:

(a) An applicant for any type of state license issued pursuant to this division shall do all of the following:

(1) Require that each owner of the applicant electronically submit to the Department of Justice fingerprint images and related information required by the Department of Justice of all for any type of state license issued pursuant to this division, for the purpose of obtaining information as to the existence and content of a record of state or federal convictions and state and federal arrests, and also information as to the existence and content of a record of state or federal convictions and arrests for which the Department of Justice establishes that the person is free on bail or on his or her recognizance pending trial or appeal.

(A) Notwithstanding any other law, the Bureau of Cannabis Control, the Department of Food and Agriculture, and the State Department of Public Health may obtain and receive, at their discretion, criminal history information from the Department of Justice and the Federal Bureau of Investigation for an applicant for any state license under this division, including any license established by a licensing authority by regulation pursuant to B&P Code § 26012(b).

(B) When received, the Department of Justice shall transmit fingerprint images and related information received pursuant to this section to the Federal Bureau of Investigation for the purpose of obtaining a federal criminal history records check. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and compile and disseminate a response to the licensing authority.

(C) The Department of Justice shall provide a response to the licensing authority pursuant to P.C. § 11105(p)(1).

(D) The licensing authority shall request from the Department of Justice subsequent notification service, as provided pursuant to P.C. § 11105.2, for applicants.

(E) The Department of Justice shall charge the applicant a fee sufficient to cover the reasonable cost of processing the requests described in this paragraph.

(2) Provide evidence of the legal right to occupy and use the proposed location and provide a statement from the landowner of real property or that landowner’s agent where the commercial cannabis activity will occur, as proof to demonstrate the landowner has acknowledged and consented to permit commercial cannabis activities to be conducted on the property by the tenant applicant.

(3) Provide evidence that the proposed location is in compliance with B&P Code § 26064(b).

(4) Provide a statement, signed by the applicant under penalty of perjury, that the information provided is complete, true, and accurate.

(5)

(A) For an applicant with 20 or more employees, provide a statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement.

(B) For the purposes of this paragraph, “employee” does not include a supervisor.

(C) For the purposes of this paragraph, “supervisor” means an individual having authority, in the interest of the applicant, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

(6) Provide the applicant’s valid seller’s permit number issued pursuant to Revenue & Taxation Code, Div. 2, Part 1 (§§ 6001 et seq.) or indicate that the applicant is currently applying for a seller’s permit.

(7) Provide any other information required by the licensing authority.

(8) For an applicant seeking a cultivation license, provide a statement declaring the applicant is an “agricultural employer,” as defined in the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Labor Code, Div. 2, Part 3.5 (§§ 1140 et seq.), to the extent not prohibited by law.

(9) Pay all applicable fees required for licensure by the licensing authority.

(10) Provide proof of a bond to cover the costs of destruction of cannabis or cannabis products if necessitated by a violation of licensing requirements.

(b) An applicant shall also include in the application a detailed description of the applicant’s operating procedures for all of the following, as required by the licensing authority:

(1) Cultivation.

(2) Extraction and infusion methods.

(3) The transportation process.

(4) Inventory procedures.

(5) Quality control procedures.

(6) Security protocols.

(7) For applicants seeking licensure to cultivate, the source or sources of water the applicant will use for cultivation, as provided B&P Code § 26060.1(a) to (c), inclusive. For purposes of this paragraph, “cultivation” as used in Section 26060.1 shall have the same meaning as defined in Section 26001. The Department of Food and Agriculture shall consult with the State Water Resources Control Board and the Department of Fish and Wildlife in the implementation of this paragraph.

(c) The applicant shall also provide a complete detailed diagram of the proposed premises wherein the license privileges will be exercised, with sufficient particularity to enable ready determination of the bounds of the premises, showing all boundaries, dimensions, entrances and exits, interior partitions, walls, rooms, and common or shared entryways, and include a brief statement or description of the principal activity to be conducted therein, and, for licenses permitting cultivation, measurements of the planned canopy, including aggregate square footage and individual square footage of separate cultivation areas, if any, roads, water crossings, points of diversion, water storage, and all other facilities and infrastructure related to the cultivation.

(d) Provide a complete list of every person with a financial interest in the person applying for the license as required by the licensing authority. For purposes of this subdivision, “persons with a financial interest” does not include persons whose only interest in a licensee is an interest in a diversified mutual fund, blind trust, or similar instrument.

B&P Code § 26052 (Amended: Effective June 27, 2017): Prohibited Actions by Licensee:

(a) A licensee shall not perform any of the following acts, or permit any of the following acts to be performed by any employee, agent, or contractor of the licensee:

(1) Make any contract in restraint of trade in violation of B&P Code § 16600.

(2) Form a trust or other prohibited organization in restraint of trade in violation of B&P Code § 16720.

(3) Make a sale or contract for the sale of cannabis or cannabis products, or to fix a price charged therefor, or discount from, or rebate upon, that price, on the condition, agreement, or understanding that the consumer or purchaser thereof shall not use or deal in the goods, merchandise, machinery, supplies, commodities, or services of a competitor or competitors of the seller, where the effect of that sale, contract, condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of trade or commerce.

(4) Sell any cannabis or cannabis products at less than cost for the purpose of injuring competitors, destroying competition, or misleading or deceiving purchasers or prospective purchasers.

(5) Discriminate between different sections, communities, or cities or portions thereof, or between different locations in those sections, communities, or cities or portions thereof in this state, by selling or furnishing cannabis or cannabis products at a lower price in one section, community, or city or any portion thereof, or in one location in that section, community, or city or any portion thereof, than in another, for the purpose of injuring competitors or destroying competition.

(6) Sell any cannabis or cannabis products at less than the cost thereof to such vendor, or to give away any article or product for the purpose of injuring competitors or destroying competition.

(b) Any person who, either as director, officer, or agent of any firm or corporation, or as agent of any person, violates the provisions of this chapter, or assists or aids, directly or indirectly, in that violation is responsible therefor equally with the person, firm, or corporation for which that person acts.

(c) Any person or trade association may bring an action to enjoin and restrain any violation of this section for the recovery of damages.

B&P Code § 26053 (Amended: Effective June 27, 2017, amended September 16, 2017): Issuance of Licenses to Persons Holding Commercial Cannabis Activity Licenses; Limitation on Licensure for Person Holding State Testing License:

(a) All commercial cannabis activity shall be conducted between licensees, except as otherwise provided in this division.

(b) A person that holds a state testing laboratory license under this division is prohibited from licensure for any other activity, except testing, as authorized under this division. A person that holds a state testing laboratory license shall not employ an individual who is also employed by any other licensee that does not hold a state testing laboratory license.

(c) Except as provided in subdivision (b), a person may apply for and be issued more than one license under this division.

(d) Each applicant or licensee shall apply for, and if approved, shall obtain, a separate license for each location where it engages in commercial cannabis activity.

B&P Code § 26054 (Amended: Effective June 27, 2017): Prohibition Against Licensing of Alcohol and Tobacco Retailers; Location of Licensee Near Schools; Actions in Support of Research and Development or Related to the Duties of the Licensing Authority:

A licensee shall not sell alcoholic beverages or tobacco products on or at any premises licensed under this division.

See also B&P § 25621.5 (effective 1/1/2019), prohibiting an alcohol licensee (licensed by the Department of Alcohol Beverage Control), at its licensed premises, from selling, offering, or providing cannabis or cannabis products, including an alcoholic beverage that contains cannabis, and prohibits the manufacture, sale, or offering for sale of an alcoholic beverage that contains tetrahydrocannabinol or cannabinoids, regardless of source.

(b) A premises licensed under this division shall not be located within a 600-foot radius of a school providing instruction in kindergarten or any grades 1 through 12, day care center, or youth center that is in existence at the time the license is issued, unless a licensing authority or a local jurisdiction specifies a different radius. The distance specified in this section shall be measured in the same manner as provided H&S Code § 11362.768(c) unless otherwise provided by law.

(c) It shall not be a violation of state or local law for a business engaged in the manufacture of cannabis accessories to possess, transport, purchase, or otherwise obtain small amounts of cannabis or cannabis products as necessary to conduct research and development related to the cannabis accessories, provided the cannabis and cannabis products are obtained from a person licensed under this division permitted to provide or deliver the cannabis or cannabis products.

(d) It shall not be a violation of state or local law for an agent of a licensing authority to possess, transport, or obtain cannabis or cannabis products as necessary to conduct activities reasonably related to the duties of the licensing authority.

B&P Code § 26054.2 (Amended: Effective June 27, 2017): Priority Licensing for Applicants Previously Operating in Compliance with Compassionate Use Act:

(a) A licensing authority shall give priority in issuing licenses under this division to applicants that can demonstrate to the authority’s satisfaction that the applicant operated in compliance with the Compassionate Use Act of 1996 (H&S Code § 11362.5) and its implementing laws before September 1, 2016.

(b) The licensing authorities shall request that local jurisdictions identify for the licensing authorities potential applicants for licensure based on the applicants’ prior operation in the local jurisdiction in compliance with state law, including the Compassionate Use Act of 1996 (H&S Code § 11362.5) and its implementing laws, and any applicable local laws.

(c) In addition to or in lieu of the information described in subdivision (b), an applicant may furnish other evidence as deemed appropriate by the licensing authority to demonstrate operation in compliance with the Compassionate Use Act of 1996 (H&S Code § 11362.5). The licensing authorities may accept such evidence to demonstrate eligibility for the priority provided for in subdivision (a).

(d) This section shall cease to be operative on December 31, 2019, unless otherwise provided by law.

B&P Code § 26055 (Amended: Effective June 27, 2017, amended September 16, 2017): Issuance of License to Qualified Applicant; Revocation of License; Separate Licenses for Multiple Locations; Alteration of Premises; Effect of Local Ordinances:

(a) Licensing authorities may issue state licenses only to qualified applicants.

(b) Revocation of a state license issued under this division shall terminate the ability of the licensee to operate pursuant to that license within California until a new license is obtained.

(c) A licensee shall not change or alter the premises in a manner which materially or substantially alters the premises, the usage of the premises, or the mode or character of business operation conducted from the premises, from the plan contained in the diagram on file with the application, unless and until written approval by the licensing authority has been obtained. For purposes of this section, material or substantial physical changes of the premises, or in the usage of the premises, shall include, but not be limited to, a substantial increase or decrease in the total area of the licensed premises previously diagrammed, or any other physical modification resulting in substantial change in the mode or character of business operation.

(d) Licensing authorities shall not approve an application for a state license under this division if approval of the state license will violate the provisions of any local ordinance or regulation adopted in accordance with B&P Code § 26200.

(e) An applicant may voluntarily provide proof of a license, permit, or other authorization from the local jurisdiction verifying that the applicant is in compliance with the local jurisdiction. An applicant that voluntarily submits a valid, unexpired license, permit, or other authorization from the local jurisdiction shall be presumed to be in compliance with all local ordinances unless the licensing authority is notified otherwise by the local jurisdiction. The licensing authority shall notify the contact person for the local jurisdiction of any applicant that voluntarily submits a valid, unexpired license, permit, or other authorization from the local jurisdiction.

(f)

(1) A local jurisdiction shall provide to the bureau a copy of any ordinance or regulation related to commercial cannabis activity and the name and contact information for the person who will serve as the contact for state licensing authorities regarding commercial cannabis activity within the jurisdiction. If a local jurisdiction does not provide a contact person, the bureau shall assume that the clerk of the legislative body of the local jurisdiction is the contact person.

(2) Whenever there is a change in a local ordinance or regulation adopted pursuant to B&P Code § 26200 or a change in the contact person for the jurisdiction, the local jurisdiction shall provide that information to the bureau.

(3) The bureau shall share the information required by this subdivision with the other licensing authorities.

(g)

(1) The licensing authority shall deny an application for a license under this division for a commercial cannabis activity that the local jurisdiction has notified the bureau is prohibited in accordance with subdivision (f). The licensing authority shall notify the contact person for the local jurisdiction of each application denied due to the local jurisdictions indication that the commercial cannabis activity for which a license is sought is prohibited by a local ordinance or regulation.

(2) Prior to issuing a state license under this division for any commercial cannabis activity, if an applicant has not provided adequate proof of compliance with local laws pursuant to subdivision (e):

(A) The licensing authority shall notify the contact person for the local jurisdiction of the receipt of an application for commercial cannabis activity within their jurisdiction.

(B) A local jurisdiction may notify the licensing authority that the applicant is not in compliance with a local ordinance or regulation. In this instance, the licensing authority shall deny the application.

(C) A local jurisdiction may notify the licensing authority that the applicant is in compliance with all applicable local ordinances and regulations. In this instance, the licensing authority may proceed with the licensing process.

(D) If the local jurisdiction does not provide notification of compliance or noncompliance with applicable local ordinances or regulations, or otherwise does not provide notification indicating that the completion of the local permitting process is still pending, within 60 business days of receiving the inquiry from a licensing authority submitted pursuant to subparagraph (A), the licensing authority shall make a rebuttable presumption that the applicant is in compliance with all local ordinances and regulations adopted in accordance with B&P Code § 26200, except as provided in subparagraphs (E) and (F).

(E) At any time after expiration of the 60-business-day period set forth in subparagraph (D), the local jurisdiction may provide written notification to the licensing authority that the applicant or licensee is not in compliance with a local ordinance or regulation adopted in accordance with B&P Code § 26200. Upon receiving this notification, the licensing authority shall not presume that the applicant or licensee has complied with all local ordinances and regulations adopted in accordance with B&P Code § 26200, and may commence disciplinary action in accordance with B&P Code §§ 26030 et seq. (Chapter 3). If the licensing authority does not take action against the licensee before the time of the renewal of the license, the license shall not be renewed until and unless the local jurisdiction notifies the licensing authority that the licensee is once again in compliance with local ordinances.

(F) A presumption by a licensing authority pursuant to this paragraph that an applicant has complied with all local ordinances and regulations adopted in accordance with B&P Code § 26200 shall not prevent, impair, or preempt the local government from enforcing all applicable local ordinances or regulations against the applicant, nor shall the presumption confer any right, vested or otherwise, upon the applicant to commence or continue operating in any local jurisdiction except in accordance with all local ordinances or regulations.

(3) For purposes of this section, “notification” includes written notification or access by a licensing authority to a local jurisdiction’s registry, database, or other platform designated by a local jurisdiction, containing information specified by the licensing authority, on applicants to determine local compliance.

(h) Without limiting any other statutory exemption or categorical exemption, Public Resources Code §§ 21000 et seq. (Division 13) does not apply to the adoption of an ordinance, rule, or regulation by a local jurisdiction that requires discretionary review and approval of permits, licenses, or other authorizations to engage in commercial cannabis activity. To qualify for this exemption, the discretionary review in any such law, ordinance, rule, or regulation shall include any applicable environmental review pursuant to Public Resources Code §§ 21000 et seq. (Division 13). This subdivision shall become inoperative on July 1, 2019.

(i) A local or state public agency may charge and collect a fee from a person proposing a project pursuant to Public Resources Code § 21089(a).

B&P Code § 26056 (New: Effective June 27, 2017): Applicability of H&S Code §§ 13143.9, 13145, and 13146:

The requirements of H&S Code §§ 13143.9, 13145, and 13146 shall apply to all licensees.

B&P Code § 26057 (Amended: Effective June 27, 2017): Denial of Application; Grounds:

(a) The licensing authority shall deny an application if either the applicant, or the premises for which a state license is applied, do not qualify for licensure under this division.

(b) The licensing authority may deny the application for licensure or renewal of a state license if any of the following conditions apply:

(1) Failure or inability to comply with the provisions of this division, any rule or regulation adopted pursuant to this division, or any requirement imposed to protect natural resources, including, but not limited to, protections for instream flow, water quality, and fish and wildlife.

(2) Conduct that constitutes grounds for denial of licensure under B&P Code §§ 480 et seq. (Division 1.5, Chapter 20), except as otherwise specified in this section and B&P § 26059.

(3) Failure to provide information required by the licensing authority.

(4) The applicant, owner, or licensee has been convicted of an offense that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, except that if the licensing authority determines that the applicant, owner, or licensee is otherwise suitable to be issued a license, and granting the license would not compromise public safety, the licensing authority shall conduct a thorough review of the nature of the crime, conviction, circumstances, and evidence of rehabilitation of the applicant or owner, and shall evaluate the suitability of the applicant, owner, or licensee to be issued a license based on the evidence found through the review. In determining which offenses are substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, the licensing authority shall include, but not be limited to, the following:

(A) A violent felony conviction, as specified in P.C. § 667.5(c).

(B) A serious felony conviction, as specified in P.C. § 1192.7(c).

(C) A felony conviction involving fraud, deceit, or embezzlement.

(D) A felony conviction for hiring, employing, or using a minor in transporting, carrying, selling, giving away, preparing for sale, or peddling, any controlled substance to a minor; or selling, offering to sell, furnishing, offering to furnish, administering, or giving any controlled substance to a minor.

(E) A felony conviction for drug trafficking with enhancements pursuant to H&S Code §§ 11370.4 or 11379.8.

(5) Except as provided in subparagraphs (D) and (E) of paragraph (4) and notwithstanding B&P Code §§ 480 et seq. (Division 1.5, Chapter 2), a prior conviction, where the sentence, including any term of probation, incarceration, or supervised release, is completed, for possession of, possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance is not considered substantially related, and shall not be the sole ground for denial of a license. Conviction for any controlled substance felony subsequent to licensure shall be grounds for revocation of a license or denial of the renewal of a license.

(6) The applicant, or any of its officers, directors, or owners, has been subject to fines, penalties, or otherwise been sanctioned for cultivation or production of a controlled substance on public or private lands pursuant to Fish and Game Code §§ 12025 or 12025.1.

(7) The applicant, or any of its officers, directors, or owners, has been sanctioned by a licensing authority or a city, county, or city and county for unauthorized commercial cannabis activities, has had a license suspended or revoked under this division in the three years immediately preceding the date the application is filed with the licensing authority.

(8) Failure to obtain and maintain a valid seller’s permit required pursuant to Revenue and Taxation Code §§ 6001 et seq. (Division 2, Part 1).

(9) Any other condition specified in law.

B&P Code § 26058 (Amended: Effective June 27, 2017): Notification of Applicant in Writing When License Denied; Petition for License Notwithstanding:

Upon the denial of any application for a license, the licensing authority shall notify the applicant in writing. Within 30 days of service of the notice, the applicant may file a written petition for a license with the licensing authority. Upon receipt of a timely filed petition, the licensing authority shall set the petition for hearing. The hearing shall be conducted in accordance with Gov’t. Code §§ 11500 et seq. (Title 2, Division 3, Part 1, Chapter 5), and the director of each licensing authority shall have all the powers granted therein. Any appeal from a final decision of the licensing authority shall be conducted in accordance with B&P Code §§ 26040 et seq. (Chapter 4).

B&P Code § 26059 (Effective November 9, 2016): Prohibited Reasons for Denial of State License: An applicant shall not be denied a state license if the denial is based solely on any of the following:

(a) A conviction or act that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made for which the applicant or licensee has obtained a certificate of rehabilitation pursuant to P.C. §§ 4852.01 et seq.

(b) A conviction that was subsequently dismissed pursuant to P.C. §§ 1203.4, 1203.4a, or 1203.41 or any other provision allowing for dismissal of a conviction.

B&P Code § 26060 (Amended: Effective June 27, 2017): Licensing of Indoor, Outdoor, Nursery, Special Cottage, and Mixed-Light Cultivation Sites; The California Environmental Quality Act; Pesticide Control:

(a) Regulations issued by the Department of Food and Agriculture governing the licensing of indoor, outdoor, nursery, special cottage, and mixed-light cultivation sites shall apply to licensed cultivators under this division. The Department of Food and Agriculture shall have the authority necessary for the implementation of the regulations it adopts pursuant to this division, including regulations governing the licensing of indoor, outdoor, mixed-light cultivation site, nursery, and special cottage cultivation.

(b) The regulations shall do all of the following:

(1) Provide that weighing or measuring devices used in connection with the sale or distribution of cannabis are required to meet standards equivalent to B&P Code §§ 12001 et seq. (Division 5).

(2) Require that cannabis cultivation by licensees is conducted in accordance with state and local laws.

(3) Establish procedures for the issuance and revocation of unique identifiers for activities associated with a cannabis cultivation license, pursuant to B&P Code §§ 26067 et seq. (Chapter 6.5). All cannabis shall be labeled with the unique identifier issued by the Department of Food and Agriculture.

(4) Prescribe standards, in consultation with the bureau, for the reporting of information as necessary related to unique identifiers pursuant to B&P Code §§ 26067 et seq. (Chapter 6.5).

(c) The Department of Food and Agriculture shall serve as the lead agency for purposes of the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., Division 13) related to the licensing of cannabis cultivation.

(d) The Department of Pesticide Regulation shall develop guidelines for the use of pesticides in the cultivation of cannabis and residue in harvested cannabis.

(e) A cannabis cultivator shall not use any pesticide that has been banned for use in the state.

(f) The regulations promulgated by the Department of Food and Agriculture under this division shall implement the requirements of B&P Code § 26060.1(b).

(g) The Department of Pesticide Regulation shall require that the application of pesticides or other pest control in connection with the indoor, outdoor, nursery, specialty cottage, or mixed-light cultivation of cannabis complies with Food and Agricultural Code §§ 11401 et seq. (Division 6) and its implementing regulations.

B&P Code § 26060.1 (New: Effective June 27, 2017, amended September 16, 2017): Water Supply Regulation:

(a) An application for a license for cultivation issued by the Department of Food and Agriculture shall identify the source of water supply as follows:

(1)

(A) If water will be supplied by a retail water supplier, as defined in Water Code § 13575, the application shall identify the retail water supplier.

(B) Paragraphs (2) and (3) do not apply to any water subject to subparagraph (A) unless the retail water supplier has 10 or fewer customers, the applicant receives 10 percent or more of the water supplied by the retail water supplier, 25 percent or more of the water delivered by the retail water supplier is used for cannabis cultivation, or the applicant and the retail water supplier are affiliates, as defined in the California Code of Regulations § 2814.20 of Title. 23.

(2) If the water supply includes a diversion within the meaning of Water Code § 5100, the application shall identify the point of diversion and the maximum amount to be diverted as follows:

(A) For an application submitted before January 1, 2019, the application shall include a copy of one of the following:

(i) A small irrigation use registration certificate, permit, or license issued pursuant to Water Code §§ 1200 et seq. (Division 2, Part 2), that covers the diversion.

(ii) A statement of water diversion and use filed with the State Water Resources Control Board on or before October 31, 2017, that covers the diversion and specifies the amount of water used for cannabis cultivation.

(iii) A pending application for a permit to appropriate water, filed with the State Water Resources Control Board on or before October 31, 2017.

(iv) Documentation submitted to the State Water Resources Control Board on or before January 1, 2019, demonstrating that the diversion is subject to Water Code § 5101(a), (c), (d), or (e).

(v) Documentation submitted to the State Water Resources Control Board on or before October 31, 2017, demonstrating that the diversion is authorized under a riparian right and that no diversion occurred after January 1, 2010, and before January 1, 2017. The documentation shall be submitted on or accompany a form provided by the State Water Resources Control Board and shall include all of the information outlined in Water Code § 5103(a) to (d), inclusive, and (e). The documentation shall also include a general description of the area in which the water will be used in accordance with Water Code § 5103(g) and the year in which the diversion is planned to commence.

(B) For an application submitted after December 31, 2018, the application shall include a copy of one of the following:

(i) A small irrigation use registration certificate, permit, or license issued pursuant to Water Code §§ 1200 et seq. (Division 2, Part 2) of that covers the diversion.

(ii) A statement of water diversion and use filed with the State Water Resources Control Board that covers the diversion and specifies the amount of water used for cannabis cultivation.

(iii) Documentation submitted to the State Water Resources Control Board demonstrating that the diversion is subject to Water Code § 5101(a), (c), (d), or (e).

(iv) Documentation submitted to the State Water Resources Control Board demonstrating that the diversion is authorized under a riparian right and that no diversion occurred after January 1, 2010, and in the calendar year in which the application is submitted. The documentation shall be submitted on or accompany a form provided by the State Water Resources Control Board and shall include all of the information outlined in Water Code § 5103(a) to (d), inclusive, and (e). The documentation shall also include a general description of the area in which the water will be used in accordance with Water Code § 5103(g) and the year in which the diversion is planned to commence.

(3) If water will be supplied from a groundwater extraction not subject to paragraph (2), the application shall identify the location of the extraction and the maximum amount to be diverted for cannabis cultivation in any year.

(b) The Department of Food and Agriculture shall include in any license for cultivation all of the following:

(1) Conditions requested by the Department of Fish and Wildlife and the State Water Resources Control Board to (A) ensure that individual and cumulative effects of water diversion and discharge associated with cultivation do not affect the instream flows needed for fish spawning, migration, and rearing, and the flows needed to maintain natural flow variability; (B) ensure that cultivation does not negatively impact springs, riparian habitat, wetlands, or aquatic habitat; and (C) otherwise protect fish, wildlife, fish and wildlife habitat, and water quality. The conditions shall include, but not be limited to, the principles, guidelines, and requirements established pursuant to Water Code § 13149.

(2) Any relevant mitigation requirements the Department of Food and Agriculture identifies as part of its approval of the final environmental documentation for the cannabis cultivation licensing program as requirements that should be included in a license for cultivation. Gov’t Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5) does not apply to the identification of these mitigation measures. This paragraph does not reduce any requirements established pursuant to Public Resources Code §§ 21000 et seq. (Division 13).

(3) A condition that the license shall not be effective until the licensee has demonstrated compliance with Fish and Game Code § 1602 or receives written verification from the Department of Fish and Wildlife that a streambed alteration agreement is not required.

(c) The Department of Food and Agriculture shall consult with the State Water Resources Control Board and the Department of Fish and Wildlife in the implementation of this section.

(d) Notwithstanding subdivision (b)(1), the Department of Food and Agriculture is not responsible for verifying compliance with the conditions requested or imposed by the Department of Fish and Wildlife or the State Water Resources Control Board. The Department of Fish and Wildlife or the State Water Resources Control Board, upon finding and making the final determination of a violation of a condition included pursuant to subdivision (b)(1), shall notify the Department of Food and Agriculture, which may take appropriate action with respect to the licensee in accordance with B&P Code §§ 26030 et seq. (Chapter 3).

B&P Code § 26061 (Amended: Effective June 27, 2017): State Cultivator License Types:

(a) The state cultivator license types to be issued by the Department of Food and Agriculture under this division shall include all of the following:

(1) Type 1, or “specialty outdoor,” for outdoor cultivation using no artificial lighting of less than or equal to 5,000 square feet of total canopy size on one premises, or up to 50 mature plants on noncontiguous plots.

(2) Type 1A, or “specialty indoor,” for indoor cultivation using exclusively artificial lighting of between 501 and 5,000 square feet of total canopy size on one premises.

(3) Type 1B, or “specialty mixed-light,” for cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, of between 2,501 and 5,000 square feet of total canopy size on one premises.

(4) Type 1C, or “specialty cottage,” for cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, of 2,500 square feet or less of total canopy size for mixed-light cultivation, up to 25 mature plants for outdoor cultivation, or 500 square feet or less of total canopy size for indoor cultivation, on one premises.

(5) Type 2, or “small outdoor,” for outdoor cultivation using no artificial lighting between 5,001 and 10,000 square feet, inclusive, of total canopy size on one premises.

(6) Type 2A, or “small indoor,” for indoor cultivation using exclusively artificial lighting between 5,001 and 10,000 square feet, inclusive, of total canopy size on one premises.

(7) Type 2B, or “small mixed-light,” for cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, between 5,001 and 10,000 square feet, inclusive, of total canopy size on one premises.

(8) Type 3, or “outdoor,” for outdoor cultivation using no artificial lighting from 10,001 square feet to one acre, inclusive, of total canopy size on one premises. The Department of Food and Agriculture shall limit the number of licenses allowed of this type.

(9) Type 3A, or “indoor,” for indoor cultivation using exclusively artificial lighting between 10,001 and 22,000 square feet, inclusive, of total canopy size on one premises. The Department of Food and Agriculture shall limit the number of licenses allowed of this type.

(10) Type 3B, or “mixed-light,” for cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, between 10,001 and 22,000 square feet, inclusive, of total canopy size on one premises. The Department of Food and Agriculture shall limit the number of licenses allowed of this type.

(11) Type 4, or “nursery” for cultivation of cannabis solely as a nursery.

(b) Except as otherwise provided by law:

(1) Type 5, or “outdoor,” means for outdoor cultivation using no artificial lighting greater than one acre, inclusive, of total canopy size on one premises.

(2) Type 5A, or “indoor,” means for indoor cultivation using exclusively artificial lighting greater than 22,000 square feet, inclusive, of total canopy size on one premises.

(3) Type 5B, or “mixed-light,” means for cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, greater than 22,000 square feet, inclusive, of total canopy size on one premises.

(c) No Type 5, Type 5A, or Type 5B cultivation licenses may be issued before January 1, 2023.

(d) Commencing on January 1, 2023, a Type 5, Type 5A, or Type 5B licensee may apply for and hold a Type 6 or Type 7 license and apply for and hold a Type 10 license. A Type 5, Type 5A, or Type 5B licensee shall not be eligible to apply for or hold a Type 8, Type 11, or Type 12 license.

B&P Code § 26062 (New: Effective June 27, 2017): Certified Organic Designation and Organic Certification Program:

(a) No later than January 1, 2021, the Department of Food and Agriculture shall establish a program for cannabis that is comparable to the National Organic Program (federal Organic Foods Production Act of 1990, § 6517, 7 U.S.C. §§ 6501 et seq.), and the California Organic Food and Farming Act, §§ 46000 et seq.) (the Food and Agricultural Code, Division 17) and H&S Code §§ 110810 et seq. (Division 104, Part 5, Chapter 5, Article 7). The Department of Food and Agriculture shall be the sole determiner of designation and certification.

(b) If at any time preceding or following the establishment of a program by the Department of Food and Agriculture pursuant to subdivision (a), the National Organic Program (the federal Organic Foods Production Act of 1990, § 6517, 7 U.S.C. §§ 6501 et seq.) authorizes organic designation and certification for cannabis, this section shall become inoperative and, as of January 1, of the following year, is repealed.

B&P Code § 26062.5 (New: Effective June 27, 2017): Falsely Representing Cannabis as Organic:

A person shall not represent, sell, or offer for sale any cannabis or cannabis product as organic except in accordance with the National Organic Program (the federal Organic Foods Production Act of 1990, § 6517, 7 U.S.C. §§ 6501 et seq.), if applicable. A person shall not represent, sell, or offer for sale any cannabis or cannabis product with the designation or certification established by the Department of Food and Agriculture pursuant to B&P § 26062(a) except in accordance with that subdivision.

B&P Code § 26063 (Amended: Effective 1/1/2020): Designated County of Origin; Establishment of Appellations of Standards, Practices, and Varietals:

(a)

(1) No later than January 1, 2018, the Department of Food and Agriculture shall establish standards by which a licensed cultivator may designate a county of origin for cannabis. To be eligible for the designation, 100 percent of the cannabis shall be produced within the designated county, as defined by finite political boundaries.

(2) Cannabis shall not be advertised, marketed, labeled, or sold as produced in a California county, including any similar name that is likely to mislead consumers as to the kind of cannabis, when the cannabis was not produced in that county.

(3) The name of a California county, including any similar name that is likely to mislead consumers as to the kind of cannabis contained in the product, shall not be used in the advertising, labeling, marketing, or packaging of cannabis products unless 100 percent of the cannabis contained in the product was produced in that county.

(b)

(1) No later than January 1, 2021, the Department of Food and Agriculture shall establish a process by which licensed cultivators may establish appellations of origin, including standards, practices, and cultivars applicable to cannabis produced in a certain geographical area in California not otherwise specified in subdivision (a).

(2) Cannabis shall not be advertised, marketed, labeled, or sold using an appellation of origin established pursuant to paragraph (1), including any similar name that is likely to mislead consumers as to the kind of cannabis, unless the cannabis meets the appellation of origin requirements for, and was produced in, the geographical area.

(3) An appellation of origin established pursuant to this subdivision, including any similar name that is likely to mislead consumers as to the kind of cannabis contained in a product, shall not be used in the advertising, labeling, marketing, or packaging of a cannabis product unless 100 percent of the cannabis contained in the product meets the appellation of origin requirements and was produced in the geographical area.

B&P Code § 26065 (Amended: Effective June 27, 2017): Applicability of Wage Order No. 4-2001:

An employee engaged in the cultivation of cannabis under this division shall be subject to Wage Order No. 4-2001 of the Industrial Welfare Commission.

B&P Code § 26066 (Amended: Effective June 27, 2017): Cultivation in Accordance with State and Local Land and Water Use laws; Environmental Impact Assessments:

Indoor and outdoor cannabis cultivation by persons and entities licensed under this division shall be conducted in accordance with state and local laws related to land conversion, current building and fire standards, grading, electricity usage, water usage, water quality, woodland and riparian habitat protection, agricultural discharges, and similar matters. State agencies, including, but not limited to, the State Board of Forestry and Fire Protection, the Department of Fish and Wildlife, the State Water Resources Control Board, the California regional water quality control boards, and traditional state law enforcement agencies, shall address environmental impacts of cannabis cultivation and shall coordinate when appropriate with cities and counties and their law enforcement agencies in enforcement efforts.

B&P Code § 26067 (New: Effective June 27, 2017): Unique Identifiers and Track and Trace; Establishment of an Electronic Data Base:

(a) The department, in consultation with the bureau, shall establish a track and trace program for reporting the movement of cannabis and cannabis products throughout the distribution chain that utilizes a unique identifier pursuant to B&P Code § 26069, secure packaging, and is capable of providing information that captures, at a minimum, all of the following:

(1) The licensee receiving the product.

(2) The transaction date.

(3) The cultivator from which the product originates, including the associated unique identifier pursuant to B&P Code § 26069.

(b)

(1) The department, in consultation with the State Board of Equalization, shall create an electronic database containing the electronic shipping manifests to facilitate the administration of the track and trace program, which shall include, but not be limited to, the following information:

(A) The variety and quantity or weight of products shipped.

(B) The estimated times of departure and arrival.

(C) The variety and quantity or weight of products received.

(D) The actual time of departure and arrival.

(E) A categorization of the product.

(F) The license number and the unique identifier pursuant to B&P Code § 26069 issued by the licensing authority for all licensees involved in the shipping process, including, but not limited to, cultivators, manufacturers, distributors, and dispensaries.

(2)

(A) The database shall be designed to flag irregularities for all licensing authorities in this division to investigate. All licensing authorities pursuant to this division may access the database and share information related to licensees under this chapter, including social security and individual taxpayer identifications notwithstanding B&P Code § 30.

(B) The department shall immediately inform the bureau upon the finding of an irregularity or suspicious finding related to a licensee, applicant, or commercial cannabis activity for investigatory purposes.

(3) Licensing authorities and state and local agencies may, at any time, inspect shipments and request documentation for current inventory.

(4) The bureau shall have 24-hour access to the electronic database administered by the department. The State Board of Equalization shall have read access to the electronic database for the purpose of taxation and regulation of cannabis and cannabis products.

(5) The department shall be authorized to enter into memoranda of understandings with licensing authorities for data sharing purposes, as deemed necessary by the department.

(6) Information received and contained in records kept by the department or licensing authorities for the purposes of administering this chapter are confidential and shall not be disclosed pursuant to the California Public Records Act (Gov’t. Code §§ 6250 et seq., Title 1, Division 7, Chapter 3.5), except as necessary for authorized employees of the State of California or any city, county, or city and county to perform official duties pursuant to this division or a local ordinance.

(7) Upon the request of a state or local law enforcement agency, licensing authorities shall allow access to or provide information contained within the database to assist law enforcement in their duties and responsibilities pursuant to this division.

B&P Code § 26068 (New: Effective June 27, 2017): Track and Trace of Cultivation Taxes Due; Third Party Application Programs:

(a) The department, in consultation with the bureau and the State Board of Equalization, shall ensure that the track and trace program can also track and trace the amount of the cultivation tax due pursuant to Revenue and Taxation Code §§ 34010 et seq. (Division 2, Part 14.5). The track and trace program shall include an electronic seed to sale software tracking system with data points for the different stages of commercial activity, including, but not limited to, cultivation, harvest, processing, distribution, inventory, and sale.

(b) The department, in consultation with the bureau, shall ensure that licensees under this division are allowed to use third-party applications, programs, and information technology systems to comply with the requirements of the expanded track and trace program described in subdivision (a) to report the movement of cannabis and cannabis products throughout the distribution chain and communicate the information to licensing agencies as required by law.

(c) Any software, database, or other information technology system utilized by the department to implement the expanded track and trace program shall support interoperability with third-party cannabis business software applications and allow all licensee-facing system activities to be performed through a secure “application programming interface” (“API”) or comparable technology that is well documented, bi-directional, and accessible to any third-party application that has been validated and has appropriate credentials. The API or comparable technology shall have version control and provide adequate notice of updates to third-party applications. The system should provide a test environment for third-party applications to access that mirrors the production environment.

B&P Code § 26069 (New: Effective June 27, 2017, amended September 16, 2017): Establishment of a Cannabis Cultivation Program; Adverse Environmental Impact; Unique Cannabis Plant Identifiers:

(a) The department shall establish a Cannabis Cultivation Program to be administered by the secretary. The secretary shall administer this section as it pertains to the cultivation of cannabis. For purposes of this division, cannabis is an agricultural product.

(b) A person or entity shall not cultivate cannabis without first obtaining a state license issued by the department pursuant to this division.

(c)

(1) The department, in consultation with, but not limited to, the bureau, shall implement a unique identification program for cannabis. In implementing the program, the department shall consider issues including, but not limited to, water use and environmental impacts. If the State Water Resources Control Board or the Department of Fish and Wildlife finds, based on substantial evidence, that cannabis cultivation is causing significant adverse impacts on the environment in a watershed or other geographic area, the department shall not issue new licenses or increase the total number of plant identifiers within that watershed or area.

(2)

(A) The department shall establish a program for the identification of permitted cannabis plants at a cultivation site during the cultivation period. A unique identifier shall be issued for each cannabis plant. The department shall ensure that unique identifiers are issued as quickly as possible to ensure the implementation of this division. The unique identifier shall be attached at the base of each plant or as otherwise required by law or regulation.

(B) Unique identifiers shall only be issued to those persons appropriately licensed by this section.

(C) Information associated with the assigned unique identifier and licensee shall be included in the trace and track program specified in B&P Code § 26067.

(D) The department may charge a fee to cover the reasonable costs of issuing the unique identifier and monitoring, tracking, and inspecting each cannabis plant.

(E) The department may promulgate regulations to implement this section.

(3) The department shall take adequate steps to establish protections against fraudulent unique identifiers and limit illegal diversion of unique identifiers to unlicensed persons.

(d) A city, county, or city and county may administer unique identifiers and associated identifying information but a city, county, or city and county’s identifiers shall not supplant the department’s track and trace program.

(e)

(1) This section does not apply to the cultivation of cannabis in accordance with H&S Code § 11362.1 or the Compassionate Use Act.

(2) Subdivision (b) does not apply to persons or entities licensed under B&P Code § 26070.5(b).

B&P Code § 26069.1 (New: Effective June 27, 2017): Cooperative Agreement:

The secretary may enter into a cooperative agreement with a county agricultural commissioner or other state or local agency to assist the department in implementing the provisions of this division related to administration, investigation, inspection, fee collection, document management, education and outreach, distribution of individual licenses approved by the secretary, and technical assistance pertaining to the cultivation of cannabis. The department shall pay compensation under a cooperative agreement from fees collected and deposited pursuant to this division and shall provide reimbursement to a county agricultural commissioner, state, or local agency for associated costs. The secretary shall not delegate through a cooperative agreement, or otherwise, its authority to issue cultivation licenses to a county agricultural commissioner, local agency, or another state agency. The secretary shall provide notice of any cooperative agreement entered into pursuant to this section to other relevant state agencies involved in the regulation of cannabis cultivation. No cooperative agreement under this section shall relieve the department of its obligations under B&P Code § 26012(a)(2) to administer the provisions of this division related to, and associated with, the cultivation of cannabis.

B&P Code § 26069.9 (New: Effective June 27, 2017): Relevant Definitions: For purposes of this chapter:

(a) “Department” means the Department of Food and Agriculture.

(b) “Secretary” means the Secretary of Food and Agriculture.

B&P Code § 26070 (Amended: Effective June 27, 2017, amended September 16, 2017): Retailers, Distributors, and Microbusinesses; Security and Transportation Safety:

(a) State licenses to be issued by the bureau related to the sale and distribution of cannabis and cannabis products are as follows:

(1) “Retailer,” for the retail sale and delivery of cannabis or cannabis products to customers. A retailer shall have a licensed premises which is a physical location from which commercial cannabis activities are conducted. A retailer’s premises may be closed to the public. A retailer may conduct sales exclusively by delivery.

(2) “Distributor,” for the distribution of cannabis and cannabis products. A distributor licensee shall be bonded and insured at a minimum level established by the licensing authority.

(3)

(A) “Microbusiness,” for the cultivation of cannabis on an area less than 10,000 square feet and to act as a licensed distributor, Level 1 manufacturer, and retailer under this division, provided such licensee can demonstrate compliance with all requirements imposed by this division on licensed cultivators, distributors, Level 1 manufacturers, and retailers to the extent the licensee engages in such activities. Microbusiness licenses that authorize cultivation of cannabis shall include the license conditions described in B&P Code § 26060.1(b).

(B) In coordination with each other, the licensing authorities shall establish a process by which an applicant for a microbusiness license can demonstrate compliance with all the requirements under this division for the activities that will be conducted under the license.

(C) The bureau may enter into interagency agreements with licensing authorities to implement and enforce the provisions of this division related to microbusinesses. The costs of activities carried out by the licensing authorities as requested by the bureau pursuant to the interagency agreement shall be calculated into the application and licensing fees collected pursuant to this division, and shall provide for reimbursement to state agencies for associated costs as provided for in the interagency agreement.

(b) The bureau shall establish minimum security and transportation safety requirements for the commercial distribution and delivery of cannabis and cannabis products. Except as provided in B&P Code § 26110(d), the transportation of cannabis and cannabis products shall only be conducted by persons holding a distributor license under this division or employees of those persons. Transportation safety standards established by the bureau shall include, but not be limited to, minimum standards governing the types of vehicles in which cannabis and cannabis products may be distributed and delivered and minimum qualifications for persons eligible to operate such vehicles.

(c) The driver of a vehicle transporting or transferring cannabis or cannabis products shall be directly employed by a licensee authorized to transport or transfer cannabis or cannabis products.

(d) Notwithstanding any other law, all vehicles transporting cannabis and cannabis products for hire shall be required to have a valid motor carrier permit pursuant to Veh. Code §§ 34620 et seq. (Division 14.85, Chapter 2). The Department of the California Highway Patrol shall have authority over the safe operation of these vehicles, including, but not limited to, requiring licensees engaged in the transportation of cannabis or cannabis products to participate in the “Basic Inspection of Terminals” (“BIT”) program pursuant to Veh. Code § 34501.12.

(e) Prior to transporting cannabis or cannabis products, a licensed distributor shall do both of the following:

(1) Complete an electronic shipping manifest as prescribed by the licensing authority. The shipping manifest shall include the unique identifier, pursuant to B&P Code § 26069, issued by the Department of Food and Agriculture for the original cannabis product.

(2) Securely transmit the manifest to the bureau and the licensee that will receive the cannabis product. The bureau shall inform the Department of Food and Agriculture of information pertaining to commercial cannabis activity for the purpose of the track and trace program identified in B&P Code § 26067.

(f) During transportation, the licensed distributor shall maintain a physical copy of the shipping manifest and make it available upon request to agents of the Department of Consumer Affairs and law enforcement officers.

(g) The licensee receiving the shipment shall maintain each electronic shipping manifest and shall make it available upon request to the Department of Consumer Affairs and any law enforcement officers.

(h) Upon receipt of the transported shipment, the licensee receiving the shipment shall submit to the licensing authority a record verifying receipt of the shipment and the details of the shipment.

(i) Transporting, or arranging for or facilitating the transport of, cannabis or cannabis products in violation of this chapter is grounds for disciplinary action against the license.

(j) Licensed retailers and microbusinesses, and licensed nonprofits under B&P Code § 26070.5, shall implement security measures reasonably designed to prevent unauthorized entrance into areas containing cannabis or cannabis products and theft of cannabis or cannabis products from the premises. These security measures shall include, but not be limited to, all of the following:

(1) Prohibiting individuals from remaining on the licensee’s premises if they are not engaging in activity expressly related to the operations of the retailer.

(2) Establishing limited access areas accessible only to authorized personnel.

(3) Other than limited amounts of cannabis used for display purposes, samples, or immediate sale, storing all finished cannabis and cannabis products in a secured and locked room, safe, or vault, and in a manner reasonably designed to prevent diversion, theft, and loss.

(k) A retailer shall notify the licensing authority and the appropriate law enforcement authorities within 24 hours after discovering any of the following:

(1) Significant discrepancies identified during inventory. The level of significance shall be determined by the bureau.

(2) Diversion, theft, loss, or any criminal activity pertaining to the operation of the retailer.

(3) Diversion, theft, loss, or any criminal activity by any agent or employee of the retailer pertaining to the operation of the retailer.

(4) The loss or unauthorized alteration of records related to cannabis or cannabis products, registered qualifying patients, primary caregivers, or retailer employees or agents.

(5) Any other breach of security.

(l) Beginning January 1, 2018, a licensee may sell cannabis or cannabis products that have not been tested for a limited and finite time as determined by the bureau. The cannabis or cannabis products must have a label affixed to each package containing the cannabis or cannabis products that clearly states “This product has not been tested as required by the Medicinal and Adult-Use Cannabis Regulation and Safety Act” and must comply with any other requirement as determined by the bureau

B&P Code § 26070.1 (New: Effective June 27, 2017): Opaque Packaging for Purchased Cannabis or Cannabis Products:

Cannabis or cannabis products purchased by a customer shall not leave a licensed retail premises unless they are placed in an opaque package.

B&P Code § 26070.2 (New; Effective 1/1/2019): Selling Cannabis Products that is an Alcoholic Beverage:

A licensee shall not sell, offer, or provide a cannabis product that is an alcoholic beverage, including, but not limited to, an infusion of cannabis or cannabinoids derived from industrial hemp into an alcoholic beverage.

B&P Code § 26070.5 (Amended: Effective June 27, 2017): Nonprofit Licenses; Feasibility Determination; Issuance of Temporary Local Licenses to Certain Nonprofit Entities:

(a) The bureau shall, by January 1, 2020, investigate the feasibility of creating one or more classifications of nonprofit licenses under this section. The feasibility determination shall be made in consultation with the relevant licensing agencies and representatives of local jurisdictions which issue temporary licenses pursuant to subdivision (b). The bureau shall consider factors including, but not limited to, the following:

(1) Should nonprofit licensees be exempted from any or all state taxes, licensing fees and regulatory provisions applicable to other licenses in this division?

(2) Should funding incentives be created to encourage others licensed under this division to provide professional services at reduced or no cost to nonprofit licensees?

(3) Should nonprofit licenses be limited to, or prioritize those, entities previously operating on a not-for-profit basis primarily providing whole-plant cannabis and cannabis products and a diversity of cannabis strains and seed stock to low-income persons?

(b) Any local jurisdiction may issue temporary local licenses to nonprofit entities primarily providing whole-plant cannabis and cannabis products and a diversity of cannabis strains and seed stock to low-income persons so long as the local jurisdiction does all of the following:

(1) Confirms the license applicant’s status as a nonprofit entity registered with the California Attorney General’s Registry of Charitable Trusts and that the applicant is in good standing with all state requirements governing nonprofit entities.

(2) Licenses and regulates any such entity to protect public health and safety, and so as to require compliance with all environmental requirements in this division.

(3) Provides notice to the bureau of any such local licenses issued, including the name and location of any such licensed entity and all local regulations governing the licensed entity’s operation.

(4) Certifies to the bureau that any such licensed entity will not generate annual gross revenues in excess of two million dollars ($2,000,000).

(c) Temporary local licenses authorized under subdivision (b) shall expire after 12 months unless renewed by the local jurisdiction.

(d) The bureau may impose reasonable additional requirements on the local licenses authorized under subdivision (b).

(e)

(1) No new temporary local licenses shall be issued pursuant to this section after the date the bureau determines that creation of nonprofit licenses under this division is not feasible, or if the bureau determines such licenses are feasible, after the date a licensing agency commences issuing state nonprofit licenses.

(2) If the bureau determines such licenses are feasible, no temporary license issued under subdivision (b) shall be renewed or extended after the date on which a licensing agency commences issuing state nonprofit licenses.

(3) If the bureau determines that creation of nonprofit licenses under this division is not feasible, the bureau shall provide notice of this determination to all local jurisdictions that have issued temporary licenses under subdivision (b). The bureau may, in its discretion, permit any such local jurisdiction to renew or extend on an annual basis any temporary license previously issued under subdivision (b).

B&P Code § 26071 (New; Effective Jan. 1, 2020): Free Cannabis or Cannabis Products; Donation of Cannabis or Cannabis Products:

(a) To provide access to medicinal cannabis patients who have difficulty accessing cannabis or cannabis products, a licensee that is authorized to make retail sales may provide free cannabis or cannabis products if all of the following criteria are met:

(1) Free cannabis or cannabis products are provided only to a medicinal cannabis patient or the patient’s primary caregiver. For purposes of this section, “medicinal cannabis patient” includes a qualified patient, as defined under Section 11362.7 of the Health and Safety Code, or a person in possession of a valid identification card issued under Section 11362.71 of the Health and Safety Code.

(2)

(A) A licensed retailer providing medicinal cannabis or medicinal cannabis products pursuant to this section to a qualified patient, as defined under Section 11362.7 of the Health and Safety Code, that possesses a valid physician’s recommendation, shall ensure that the physician is in good standing by following the procedures described in subparagraph (B) before providing the qualified patient with any medicinal cannabis or medicinal cannabis products that a cultivator certified were for donation pursuant to Section 34012.1 of the Revenue and Taxation Code or that are exempt from the use tax pursuant to Section 6414 of the Revenue and Taxation Code.

(B) In order to verify the physician’s recommendation, the licensed retailer shall do all of the following:

(i) Verify with the Medical Board of California, the Osteopathic Medical Board of Californa, and the California Board of Podiatric Medicine that the attending physician has a license in good standing to practice medicine or osteopathy in the state.

(ii) Keep a copy of the patient’s or primary caregiver’s driver’s license or other government issued identification.

(3) Except as provided for under Section 34012.1 of the Revenue and Taxation Code, the cannabis or cannabis products comply with all applicable requirements for cultivation, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery, or donation under this division.

(4) A licensee intending to donate the cannabis or cannabis products shall designate the cannabis or cannabis products for donation in the track and trace system. If a cultivator certified that the cannabis or cannabis products are designated for donation to medicinal cannabis patients pursuant to Section 34012.1 of the Revenue and Taxation Code, a licensee shall not change that designation pursuant to subdivision (b) of Section 34012.1 of the Revenue and Taxation Code.

(5) Before being provided to the patient or primary caregiver, the cannabis or cannabis products have been properly recorded in the track and trace system as belonging to the retailer.

(6) The cannabis or cannabis products provided to a medicinal cannabis patient or the primary caregiver of the patient in a single day shall not exceed the possession limits prescribed by Section 11362.77 of the Health and Safety Code.

(7) The event shall be properly recorded in the retailer’s inventory records and the track and trace system. The retailer shall include in its inventory records for each medicinal cannabis patient the number of an identification card issued pursuant to Article 2.5 (commencing with Section 11362.7) of Chapter 6 of Division 10 of the Health and Safety or a copy of the physician’s recommendation for no less than four years. If the medicinal cannabis patient is a qualified patient, as defined under Section 11362.7 of the Health and Safety Code, that possesses a valid physician’s recommendation, the retailer shall certify in writing that they verified the recommendation pursuant to paragraph (2) and shall keep a copy of that certification for no less than seven years.

(8) A licensed retailer that donates medicinal cannabis or medicinal cannabis products shall note the donation in their sales invoice or receipt pursuant to Section 26161 of the Business and Professions Code.

(b) In addition to the provision of free cannabis or cannabis products in subdivision (a), a licensee that is authorized to make retail sales may donate cannabis or cannabis products and the use of equipment in compliance with any compassionate use, equity, or other similar program administered by a local jurisdiction.

(c) A licensee that is authorized to make retail sales may contract with an individual or organization to coordinate the provision of free medicinal cannabis or medicinal cannabis products on the retailer’s premises. Licensed retailers that are solely authorized to engage in retail sales by means of delivery may provide free medicinal cannabis or medicinal cannabis products by means of delivery.

(d) This section shall become operative upon completion of the necessary changes to the track and trace program in order to implement the act adding this section, as determined by the Department of Food and Agriculture, or on March 1, 2020, whichever occurs first.

B&P Code § 26080 (Amended: Effective June 27, 2017): Transportation and Distribution of Marijuana or Marijuana Products Outside State; Prohibition Against Prevention of Transportation by Local Jurisdiction:

(a) This division shall not be construed to authorize or permit a licensee to transport or distribute, or cause to be transported or distributed, cannabis or cannabis products outside the state, unless authorized by federal law.

(b) A local jurisdiction shall not prevent transportation of cannabis or cannabis products on public roads by a licensee transporting cannabis or cannabis products in compliance with this division.

B&P Code § 26090 (Amended: Effective June 27, 2017, amended September 16, 2017): Delivery by Licensees:

(a) Deliveries, as defined in this division, may only be made by a licensed retailer or microbusiness, or a licensed nonprofit under B&P Code § 26070.5.

(b) All employees of a retailer, microbusiness, or nonprofit delivering cannabis or cannabis products shall carry a copy of the licensee’s current license and a government-issued identification with a photo of the employee, such as a driver’s license. The employee shall present that license and identification upon request to state and local law enforcement, employees of regulatory authorities, and other state and local agencies enforcing this division.

(c) During delivery, the licensee shall maintain a copy of the delivery request and shall make it available upon request of the licensing authority and law enforcement officers. The delivery request documentation shall comply with state and federal law regarding the protection of confidential medical information.

(d) A customer requesting delivery shall maintain a physical or electronic copy of the delivery request and shall make it available upon request by the licensing authority and law enforcement officers.

(e) A local jurisdiction shall not prevent delivery of cannabis or cannabis products on public roads by a licensee acting in compliance with this division and local law as adopted under B&P Code § 26200.

B&P Code § 26100 (Renumbered from § 26101 and Amended: Effective June 27, 2017): Presale Laboratory Testing Requirements:

(a) Except as otherwise provided by law, cannabis or cannabis products shall not be sold pursuant to a license provided for under this division unless a representative sample of the cannabis or cannabis products has been tested by a licensed testing laboratory.

(b) The bureau shall develop criteria to determine which batches shall be tested. All testing of the samples shall be performed on the final form in which the cannabis or cannabis product will be consumed or used.

(c) Testing of batches to meet the requirements of this division shall only be conducted by a licensed testing laboratory.

(d) For each batch tested, the testing laboratory shall issue a certificate of analysis for selected lots at a frequency determined by the bureau with supporting data, to report both of the following:

(1) Whether the chemical profile of the sample conforms to the labeled content of compounds, including, but not limited to, all of the following, unless limited through regulation by the bureau:

(A) Tetrahydrocannabinol (THC).

(B) Tetrahydrocannabinolic Acid (THCA).

(C) Cannabidiol (CBD).

(D) Cannabidiolic Acid (CBDA).

(E) The terpenes required by the bureau in regulation.

(F) Cannabigerol (CBG).

(G) Cannabinol (CBN).

(H) Any other compounds or contaminants required by the bureau.

(2) That the presence of contaminants does not exceed the levels established by the bureau. In establishing the levels, the bureau shall consider the American Herbal Pharmacopoeia monograph, guidelines set by the Department of Pesticide Regulation pursuant to B&P Code § 26060(d), and any other relevant sources. For purposes of this paragraph, “contaminants” includes, but is not limited to, all of the following:

(A) Residual solvent or processing chemicals.

(B) Foreign material, including, but not limited to, hair, insects, or similar or related adulterant.

(C) Microbiological impurities as identified by the bureau in regulation.

(e) Standards for residual levels of volatile organic compounds shall be established by the bureau.

(f) The testing laboratory shall conduct all testing required by this section in a manner consistent with general requirements for the competence of testing and calibrations activities, including sampling and using verified methods.

(g) All testing laboratories performing tests pursuant to this section shall obtain and maintain ISO/IEC 17025 accreditation as required by the bureau in regulation.

(h) If a test result falls outside the specifications authorized by law or regulation, the testing laboratory shall follow a standard operating procedure to confirm or refute the original result.

(i) A testing laboratory shall destroy the remains of the sample of medical cannabis or medical cannabis product upon completion of the analysis, as determined by the bureau through regulations.

(j) Any presale inspection, testing transfer, or transportation of cannabis products pursuant to this section shall conform to a specified chain of custody protocol and any other requirements imposed under this division.

(k) This division does not prohibit a licensee from performing testing on the licensee’s premises for the purposes of quality assurance of the product in conjunction with reasonable business operations. This division also does not prohibit a licensee from performing testing on the licensee’s premises of cannabis or cannabis products obtained from another licensee. Onsite testing by the licensee shall not be certified by the bureau and does not exempt the licensee from the requirements of quality assurance testing at a testing laboratory pursuant to this section.

B&P Code § 26102 (Effective June 27, 2017): Licensing of Testing Laboratory: A testing laboratory shall not be licensed by the bureau unless the laboratory meets all of the following:

(a) Complies with any other requirements specified by the bureau.

(b) Notifies the bureau within one business day after the receipt of notice of any kind that its accreditation has been denied, suspended, or revoked.

(c) Has established standard operating procedures that provide for adequate chain of custody controls for samples transferred to the testing laboratory for testing.

B&P Code § 26104: Effective June 27, 2017, amended September 16, 2017, and January 1, 2019): Compliance by Licensed Testing Service; Development of Procedures:

(b) The bureau shall develop procedures to do all of the following:

(1) Ensure that testing of cannabis and cannabis products occurs prior to distribution to retailers, microbusinesses, or nonprofits licensed under B&P § 26070.5.

(e) A testing laboratory may receive and test samples of cannabis or cannabis products from a person over 21 years of age when the cannabis has been grown by that person and will be used solely for his or her personal use, as authorized pursuant to H&S Code § 11362.1. A testing laboratory shall not certify samples from the person over 21 years of age for resale or transfer to another person or licensee. All tests recorded pursuant to this subdivision shall be recorded with the name of the person submitting the sample and the amount of cannabis or cannabis product received.

B&P Code § 26105 (Effective November 9, 2016): Manufacturing Level 2 Licensees; Methods and Procedures to Limit Risks Created by Volatile Solvents:

Manufacturing Level 2 licensees shall enact sufficient methods or procedures to capture or otherwise limit risk of explosion, combustion, or any other unreasonably dangerous risk to public safety created by volatile solvents. The State Department of Public Health shall establish minimum standards concerning such methods and procedures for Level 2 licensees.

B&P Code § 26106 (Amended: Effective June 27, 2017): Applicability of Production, Packaging, and Labeling Standards:

Standards for the production, packaging, and labeling of all cannabis products developed by the State Department of Public Health apply to all licensed manufacturers and microbusinesses, and nonprofits licensed under B&P Code § 26070.5, unless otherwise specified by the State Department of Public Health.

B&P Code § 26110 (New: Effective June 27, 2017): Quality Assurance, Storage, Inspection, and Testing:

(a) Cannabis batches are subject to quality assurance and testing prior to sale at a retailer, microbusiness, or nonprofit licensed under B&P Code § 26070.5, except for immature cannabis plants and seeds, as provided for in this division.

(b) A licensee that holds a valid distributor license may act as the distributor for the licensee’s cannabis and cannabis products.

(c) The distributor shall store, as determined by the bureau, the cannabis batches on the premises of the distributor before testing and continuously until either of the following occurs:

(1) The cannabis batch passes the testing requirements pursuant to this division and is transported to a licensed retailer.

(2) The cannabis batch fails the testing requirements pursuant to this division and is destroyed or transported to a manufacturer for remediation as allowed by the bureau or the Department of Public Health.

(d) The distributor shall arrange for a testing laboratory to obtain a representative sample of each cannabis batch at the distributor’s licensed premises. After obtaining the sample, the testing laboratory representative shall maintain custody of the sample and transport it to the testing laboratory.

(e) Upon issuance of a certificate of analysis by the testing laboratory that the cannabis batch has passed the testing requirements pursuant to this division, the distributor shall conduct a quality assurance review before distribution to ensure the labeling and packaging of the cannabis and cannabis products conform to the requirements of this division.

(f)

(1) There shall be a quality assurance compliance monitor who is an employee or contractor of the bureau and who shall not hold a license in any category or own or have an ownership interest in a licensee or the premises of a licensee.

(2) The quality assurance compliance monitor shall conduct random quality assurance reviews at a distributor’s licensed premises before distribution to ensure the labeling and packaging of the cannabis and cannabis products conform to the requirements of this division.

(3) The quality assurance compliance monitor shall have access to all records and test results required of a licensee by law in order to conduct quality assurance analysis and to confirm test results. All records of inspection and verification by the quality assurance compliance monitor shall be provided to the bureau. Failure to comply shall be noted by the quality assurance compliance monitor for further investigation. Violations shall be reported to the bureau. The quality assurance compliance monitor shall also verify the tax payments collected and paid under Revenue and Tax Code §§ 34011 and 34012 are accurate. The monitor shall also have access to the inputs and assumptions in the track and trace system and shall be able to verify the accuracy of those and that they are commensurate with the tax payments.

(g) After testing, all cannabis and cannabis products fit for sale may be transported only from the distributor’s premises to the premises of a licensed retailer, microbusiness, or nonprofit.

(h) A licensee is not required to sell cannabis or cannabis products to a distributor and may directly contract for sale with a licensee authorized to sell cannabis and cannabis products to purchasers.

(i) A distributor performing services pursuant to this section may collect a fee from the licensee for the services provided. The fee may include, but is not limited to, the costs incurred for laboratory testing. A distributor may also collect applicable state or local taxes and fees.

(j) This section does not prohibit a licensee from performing testing on the licensee’s premises for the purposes of quality assurance of the product in conjunction with reasonable business operations. The testing conducted on the licensee’s premises by the licensee does not meet the testing requirements pursuant to this division.

B&P Code § 26120 (Amended: Effective June 27, 2017): Labeling and Packaging Requirements for Marijuana and Marijuana Products:

(a) Prior to delivery or sale at a retailer, cannabis and cannabis products shall be labeled and placed in a resealable, tamper-evident, child-resistant package and shall include a unique identifier for the purposes of identifying and tracking cannabis and cannabis products.

(b) Packages and labels shall not be made to be attractive to children.

(c) All cannabis and cannabis product labels and inserts shall include the following information prominently displayed in a clear and legible fashion in accordance with the requirements, including font size, prescribed by the bureau or the State Department of Public Health:

(1) The following statements, in bold print:

(A) For cannabis: “GOVERNMENT WARNING: THIS PACKAGE CONTAINS CANNABIS, A SCHEDULE I CONTROLLED SUBSTANCE. KEEP OUT OF REACH OF CHILDREN AND ANIMALS. CANNABIS MAY ONLY BE POSSESSED OR CONSUMED BY PERSONS 21 YEARS OF AGE OR OLDER UNLESS THE PERSON IS A QUALIFIED PATIENT. CANNABIS USE WHILE PREGNANT OR BREASTFEEDING MAY BE HARMFUL. CONSUMPTION OF CANNABIS IMPAIRS YOUR ABILITY TO DRIVE AND OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”

(B) For cannabis products: “GOVERNMENT WARNING: THIS PRODUCT CONTAINS CANNABIS, A SCHEDULE I CONTROLLED SUBSTANCE. KEEP OUT OF REACH OF CHILDREN AND ANIMALS. CANNABIS PRODUCTS MAY ONLY BE POSSESSED OR CONSUMED BY PERSONS 21 YEARS OF AGE OR OLDER UNLESS THE PERSON IS A QUALIFIED PATIENT. THE INTOXICATING EFFECTS OF CANNABIS PRODUCTS MAY BE DELAYED UP TO TWO HOURS. CANNABIS USE WHILE PREGNANT OR BREASTFEEDING MAY BE HARMFUL. CONSUMPTION OF CANNABIS PRODUCTS IMPAIRS YOUR ABILITY TO DRIVE AND OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”

(2) For packages containing only dried flower, the net weight of cannabis in the package.

(3) Identification of the source and date of cultivation, the type of cannabis or cannabis product and the date of manufacturing and packaging.

(4) The appellation of origin, if any.

(5) List of pharmacologically active ingredients, including, but not limited to, “tetrahydrocannabinol” (“THC”), “cannabidiol” (“CBD”), and other cannabinoid content, the THC and other cannabinoid amount in milligrams per serving, servings per package, and the THC and other cannabinoid amount in milligrams for the package total.

(6) A warning if nuts or other known allergens are used.

(7) Information associated with the unique identifier issued by the Department of Food and Agriculture.

(8) For a medicinal cannabis product sold at a retailer, the statement “FOR MEDICAL USE ONLY.”

(9) Any other requirement set by the bureau or the State Department of Public Health.

(d) Only generic food names may be used to describe the ingredients in edible cannabis products.

(e) In the event the Attorney General determines that cannabis is no longer a Schedule I controlled substance under federal law, the label prescribed in subdivision (c) shall no longer require a statement that cannabis is a Schedule I controlled substance.

B&P Code § 26121 (New: Effective June 27, 2017): Misbranding of Cannabis Products:

(a) A cannabis product is misbranded if it is any of the following:

(1) Manufactured, packed, or held in this state in a manufacturing premises not duly licensed as provided in this division.

(2) Its labeling is false or misleading in any particular.

(3) Its labeling or packaging does not conform to the requirements of B&P Code § 26120 or any other labeling or packaging requirement established pursuant to this division.

(b) It is unlawful for any person to manufacture, sell, deliver, hold, or offer for sale a cannabis product that is misbranded.

(c) It is unlawful for any person to misbrand a cannabis product.

(d) It is unlawful for any person to receive in commerce a cannabis product that is misbranded or to deliver or offer for delivery any such cannabis product.

B&P Code § 26122 (New: Effective Oct. 12, 2019): Universal Symbol Placed on Cannabis Cartridge or Integrated Cannabis Vaporizer Containing Cannabis or a Cannabis Product:

(a) A cannabis cartridge or integrated cannabis vaporizer that contains cannabis or a cannabis product shall bear the universal symbol described in paragraph (7) of subdivision (c) of Section 26130. The universal symbol shall be visible on the cannabis cartridge or integrated cannabis vaporizer and shall not be smaller than one-quarter inch wide by one-quarter inch high. The universal symbol shall be engraved, affixed with a sticker, or printed in black or white.

(b) For purposes of this section, the following definitions shall apply:

(1) “Cannabis cartridge” means a cartridge containing cannabis oil that is intended to be affixed to an electronic device that heats the oil and creates an aerosol or vapor.

(2) “Integrated cannabis vaporizer” means a singular device that contains both cannabis oil and an integrated electronic device that creates an aerosol or vapor.

B&P Code § 26130 (Amended: Effective June 27, 2017, amended September 16, 2017): Licensing and Standards for Cannabis Manufacturers; Edible Cannabis Products:

(a) The State Department of Public Health shall promulgate regulations governing the licensing of cannabis manufacturers and standards for the manufacturing, packaging, and labeling of all manufactured cannabis products. Licenses to be issued are as follows:

(1) “Manufacturing Level 1,” for sites that manufacture cannabis products using nonvolatile solvents, or no solvents.

(2) “Manufacturing Level 2,” for sites that manufacture cannabis products using volatile solvents.

(b) For purposes of this section, “volatile solvents” shall have the same meaning as in H&S Code § 11362.3(b)(3), unless otherwise provided by law or regulation.

(c) Edible cannabis products shall be:

(1) Not designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain cannabis.

(2) Produced and sold with a standardized concentration of cannabinoids not to exceed 10 milligrams “tetrahydrocannabinol” (“THC”) per serving.

(3) Delineated or scored into standardized serving sizes if the cannabis product contains more than one serving and is an edible cannabis product in solid form.

(4) Homogenized to ensure uniform disbursement of cannabinoids throughout the product.

(5) Manufactured and sold under sanitation standards established by the State Department of Public Health, in consultation with the bureau, that are similar to the standards for preparation, storage, handling, and sale of food products.

(6) Provided to customers with sufficient information to enable the informed consumption of the product, including the potential effects of the cannabis product and directions as to how to consume the cannabis product, as necessary.

(7) Marked with a universal symbol, as determined by the State Department of Public Health through regulation.

(d) Cannabis, including concentrated cannabis, included in a cannabis product manufactured in compliance with law is not considered an adulterant under state law.

B&P Code § 26131 (New: Effective June 27, 2017): Adulterated Cannabis Products:

(a) A cannabis product is adulterated if it is any of the following:

(1) It has been produced, prepared, packed, or held under unsanitary conditions in which it may have become contaminated with filth or in which it may have been rendered injurious.

(2) It consists in whole or in part of any filthy, putrid, or decomposed substance.

(3) It bears or contains any poisonous or deleterious substance that may render it injurious to users under the conditions of use suggested in the labeling or under conditions as are customary or usual.

(4) It bears or contains a substance that is restricted or limited under this division or regulations promulgated pursuant to this division and the level of substance in the product exceeds the limits specified pursuant to this division or in regulation.

(5) Its concentrations differ from, or its purity or quality is below, that which it is represented to possess.

(6) The methods, facilities, or controls used for its manufacture, packing, or holding do not conform to, or are not operated or administered in conformity with, practices established by regulations adopted under this division to ensure that the cannabis product meets the requirements of this division as to safety and has the concentrations it purports to have and meets the quality and purity characteristics that it purports or is represented to possess.

(7) Its container is composed, in whole or in part, of any poisonous or deleterious substance that may render the contents injurious to health.

(8) It is an edible cannabis product and a substance has been mixed or packed with it after testing by a testing laboratory so as to reduce its quality or concentration or if any substance has been substituted, wholly or in part, for the edible cannabis product.

(b) It is unlawful for a person to manufacture, sell, deliver, hold, or offer for sale a cannabis product that is adulterated.

(c) It is unlawful for a person to adulterate a cannabis product.

(d) It is unlawful for a person to receive in commerce a cannabis product that is adulterated or to deliver or proffer for delivery any such cannabis product.

B&P Code § 26132 (New: Effective June 27, 2017): Procedures for Adulterated or Misbranded Cannabis Products:

(a) When the State Department of Public Health has evidence that a cannabis product is adulterated or misbranded, the department shall notify the manufacturer.

(b) The State Department of Public Health may order a manufacturer to immediately cease distribution of a cannabis product and recall the product if the department determines both of the following:

(1) The manufacture, distribution, or sale of the cannabis product creates or poses an immediate and serious threat to human life or health.

(2) Other procedures available to the State Department of Public Health to remedy or prevent the occurrence of the situation would result in an unreasonable delay.

(c) The State Department of Public Health shall provide the manufacturer an opportunity for an informal proceeding on the matter, as determined by the department, within five days, on the actions required by the order and on why the product should not be recalled. Following the proceeding, the order shall be affirmed, modified, or set aside as determined appropriate by the State Department of Public Health.

(d) The State Department of Public Health’s powers set forth in this section expressly include the power to order movement, segregation, isolation, or destruction of cannabis products, as well as the power to hold those products in place.

(e) If the State Department of Public Health determines it is necessary, it may issue the mandatory recall order and may use all appropriate measures to obtain reimbursement from the manufacturer for any and all costs associated with these orders. All funds obtained by the State Department of Public Health from these efforts shall be deposited into a fee account specific to the State Department of Public Health, to be established in the Cannabis Control Fund, and will be available for use by the department upon appropriation by the Legislature.

(f) It is unlawful for any person to move or allow to be moved a cannabis product subject to an order issued pursuant to this section unless that person has first obtained written authorization from the State Department of Public Health.

B&P Code § 26133 (New: Effective June 27, 2017): Handling of Adulterated or Misbranded Cannabis Products; Embargoing; Fine for Removing, Selling, or Disposing of Embargoed Cannabis Product; Condemnation and Destruction of Product.

(a) If the State Department of Public Health finds or has probable cause to believe that a cannabis product is adulterated or misbranded within the meaning of this division or the sale of the cannabis product would be in violation of this division, the department shall affix to the cannabis product, or component thereof, a tag or other appropriate marking. The State Department of Public Health shall give notice that the cannabis product is, or is suspected of being, adulterated or misbranded, or the sale of the cannabis would be in violation of this division and has been embargoed and that no person shall remove or dispose of the cannabis product by sale or otherwise until permission for removal or disposal is given by the State Department of Public Health or a court.

(b) It is unlawful for a person to remove, sell, or dispose of a detained or embargoed cannabis product without written permission of the State Department of Public Health or a court. A violation of this subdivision is punishable by a fine of not more than ten thousand dollars ($10,000).

(c) If the adulteration or misbranding can be corrected by proper labeling or additional processing of the cannabis product and all of the provisions of this division can be complied with, the licensee or owner may request the State Department of Public Health to remove the tag or other marking. If, under the supervision of the State Department of Public Health, the adulteration or misbranding has been corrected, the department may remove the tag or other marking.

(d) If the State Department of Public Health finds that a cannabis product that is embargoed is not adulterated or misbranded, or that its sale is not otherwise in violation of this division, the State Department of Public Health may remove the tag or other marking.

(e) The cannabis product may be destroyed by the owner pursuant to a corrective action plan approved by the State Department of Public Health and under the supervision of the department. The cannabis product shall be destroyed at the expense of the licensee or owner.

(f) A proceeding for condemnation of a cannabis product under this section shall be subject to appropriate notice to, and the opportunity for a hearing with regard to, the person affected in accordance with B&P Code § 26016.

(g) Upon a finding by the administrative law judge that the cannabis product is adulterated or misbranded, or that its sale is otherwise in violation of this division, the administrative law judge may direct the cannabis product to be destroyed at the expense of the licensee or owner. The administrative law judge may also direct a licensee or owner of the affected cannabis product to pay fees and reasonable costs, including the costs of storage and testing, incurred by the bureau or the State Department of Public Health in investigating and prosecuting the action taken pursuant to this section.

(h) When, under the supervision of the State Department of Public Health, the adulteration or misbranding has been corrected by proper labeling or additional processing of the cannabis and cannabis product and when all provisions of this division have been complied with, and after costs, fees, and expenses have been paid, the State Department of Public Health may release the embargo and remove the tag or other marking.

(i) The State Department of Public Health may condemn a cannabis product under provisions of this division. The cannabis product shall be destroyed at the expense of the licensee or owner.

B&P Code § 26134 (New: Effective June 27, 2017): Citations and Order of Abatement; Fines:

(a) The State Department of Public Health may issue a citation, which may contain an order of abatement and an order to pay an administrative fine assessed by the department if the licensee is in violation of this division or any regulation adopted pursuant to it.

(1) Citations shall be in writing and shall describe with particularity the nature of the violation, including specific reference to the law determined to have been violated.

(2) If appropriate, the citation shall contain an order of abatement fixing a reasonable time for abatement of the violation.

(3) The administrative fine assessed by the State Department of Public Health shall not exceed five thousand dollars ($5,000) for each violation, unless a different fine amount is expressly provided by this division. In assessing a fine, the department shall give due consideration to the appropriateness of the amount of the fine with respect to factors such as the gravity of the violation, the good faith of the licensee, and the history of previous violations.

(4) A citation issued or a fine assessed pursuant to this section shall notify the licensee that if the licensee desires a hearing to contest the finding of a violation, that hearing shall be requested by written notice to the State Department of Public Health within 30 days of the date of issuance of the citation or fine. If a hearing is not requested pursuant to this section, payment of any fine shall not constitute an admission of the violation charged. Hearings shall be held pursuant to Gov’t. Code §§ 11500 et seq. (Title 2, Division 3, Part 1, Chapter 5).

(5) Failure of a licensee to pay a fine within 30 days of the date of assessment of the fine, unless assessment of the fine or the citation is being appealed, may result in further legal action being taken by the State Department of Public Health. If a licensee does not contest a citation or pay the fine, the full amount of the fine shall be added to the fee for renewal of the license. A license shall not be renewed without payment of the renewal fee, including the amount of the fine.

(6) A citation may be issued without the assessment of an administrative fine.

(7) The State Department of Public Health may limit the assessment of administrative fines to only particular violations of this division and establish any other requirement for implementation of the citation system by regulation.

(b) Notwithstanding any other law, if a fine is paid to satisfy an assessment based on the finding of a violation, payment of the fine shall be represented as satisfactory resolution of the matter for purposes of public disclosure.

B&P Code § 26135 (New: Effective June 27, 2017): Seizure of Cannabis and Cannabis Products:

A peace officer, including a peace officer within the State Department of Public Health or the bureau, may seize cannabis and cannabis products in any of the following circumstances:

(a) The cannabis or cannabis product is subject to recall or embargo by any licensing authority.

(b) The cannabis or cannabis product is subject to destruction pursuant to this division.

(c) The cannabis or cannabis product is seized related to an investigation or disciplinary action for violation of this division.

B&P Code § 26140 (Amended: Effective June 27, 2017, amended September 16, 2017): Prohibitions Related to Persons Under 21 Years of Age; Use of Decoys:

(a) An A-licensee shall not:

(1) Sell cannabis or cannabis products to persons under 21 years of age.

(2) Allow any person under 21 years of age on its premises, unless the A-licensee holds an M-license and the licensed premises for the A-license and M-license are the same.

(3) Employ or retain persons under 21 years of age.

(4) Sell or transfer cannabis or cannabis products unless the person to whom the cannabis or cannabis product is to be sold first presents documentation which reasonably appears to be a valid government-issued identification card showing that the person is 21 years of age or older.

(b) Persons under 21 years of age may be used by peace officers in the enforcement of this division and to apprehend licensees, or employees or agents of licensees, or other persons who sell or furnish cannabis to minors. Notwithstanding any provision of law, any person under 21 years of age who purchases or attempts to purchase any cannabis while under the direction of a peace officer is immune from prosecution for that purchase or attempt to purchase cannabis. Guidelines with respect to the use of persons under 21 years of age as decoys shall be adopted and published by the bureau in accordance with the rulemaking portion of the Administrative Procedure Act, Gov’t. Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5).

(c) Notwithstanding subdivision (a), an M-licensee may:

(1) Allow on the premises any person 18 years of age or older who possesses a valid government-issued identification card, and either a valid county-issued identification card under H&S Code § 11362.712 or a valid physician’s recommendation for himself or herself or for a person for whom he or she is a primary caregiver.

(2) Allow any person 21 years of age or older on its premises if the M-licensee holds an A-license and the licensed premises for the M-license and A-license are the same.

(3) Sell cannabis, cannabis products, and cannabis accessories to a person 18 years of age or older who possesses a valid government-issued identification card and either a valid county-issued identification card under H&S Code § 11362.712 or a valid physician’s recommendation for himself or herself or for a person for whom he or she is a primary caregiver.

(4) The bureau may establish requirements for the purchase of cannabis, cannabis products, or cannabis accessories by a primary caregiver for a patient to ensure that the status of a person as a primary caregiver is verified.

B&P Code § 26150 (Amended: Effective June 27, 2017): Relevant Definitions: For purposes of this chapter:

(a) “Advertise” means the publication or dissemination of an advertisement.

(b) “Advertisement” includes any written or verbal statement, illustration, or depiction which is calculated to induce sales of cannabis or cannabis products, including any written, printed, graphic, or other material, billboard, sign, or other outdoor display, public transit card, other periodical literature, publication, or in a radio or television broadcast, or in any other media; except that such term shall not include:

(1) Any label affixed to any cannabis or cannabis products, or any individual covering, carton, or other wrapper of that container that constitutes a part of the labeling under provisions of this division.

(2) Any editorial or other reading material, such as a news release, in any periodical or publication or newspaper for the publication of which no money or valuable consideration is paid or promised, directly or indirectly, by any licensee, and which is not written by or at the direction of the licensee.

(c) “Advertising sign” is any sign, poster, display, billboard, or any other stationary or permanently affixed advertisement promoting the sale of cannabis or cannabis products which are not cultivated, manufactured, distributed, or sold on the same lot.

(d) “Health-related statement” means any statement related to health, and includes statements of a curative or therapeutic nature that, expressly or by implication, suggest a relationship between the consumption of cannabis or cannabis products and health benefits, or effects on health.

(e) “Market” or “Marketing” means any act or process of promoting or selling cannabis or cannabis products, including, but not limited to, sponsorship of sporting events, point-of-sale advertising, and development of products specifically designed to appeal to certain demographics.

B&P Code § 26151 (Amended: Effective June 27, 2017): Identification of Licensee in Advertising and Marketing; Placement in Communications with Audience 21 Years of Age or Older; Required Method of Age Affirmation for Certain Advertising and Marketing:

(a)

(1) All advertisements and marketing shall accurately and legibly identify the licensee responsible for its content, by adding, at a minimum, the licensee’s license number.

(2) A technology platform shall not display an advertisement by a licensee on an Internet Web page unless the advertisement displays the license number of the licensee.

(3) An outdoor advertising company subject to the Outdoor Advertising Act (B&P Code §§ 5200 et seq., Division 3, Chapater 2) shall not display an advertisement by a licensee unless the advertisement displays the license number of the licensee.

(b) Any advertising or marketing placed in broadcast, cable, radio, print, and digital communications shall only be displayed where at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.

See also B&P Code § 22580, amended affective 1/1/2019, by expanding the list of products and services (e.g., alcohol, firearms, ammunition, tobacco, cigarettes, electronic cigarettes, BB devices, fireworks, body branding, tattoos, obscene matter, etc.) for which online and mobile application marketing and advertising directed to minors is prohibited, by adding cannabis, cannabis products, cannabis businesses, and instruments or paraphernalia designed for smoking or ingesting cannabis or cannabis products.

(c) Any advertising or marketing involving direct, individualized communication or dialogue controlled by the licensee shall utilize a method of age affirmation to verify that the recipient is 21 years of age or older before engaging in that communication or dialogue controlled by the licensee. For purposes of this section, that method of age affirmation may include user confirmation, birth date disclosure, or other similar registration method.

(d) All advertising shall be truthful and appropriately substantiated.

B&P Code § 26152 (Amended: Effective June 27, 2017): Truth in Advertising and Marketing: A licensee shall not do any of the following:

(a) Advertise or market in a manner that is false or untrue in any material particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of irrelevant, scientific, or technical matter, tends to create a misleading impression.

(b) Publish or disseminate advertising or marketing containing any statement concerning a brand or product that is inconsistent with any statement on the labeling thereof.

(c) Publish or disseminate advertising or marketing containing any statement, design, device, or representation which tends to create the impression that the cannabis originated in a particular place or region, unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement.

(d) Advertise or market on a billboard or similar advertising device located on an Interstate Highway or on a State Highway which crosses the California border.

(e) Advertise or market cannabis or cannabis products in a manner intended to encourage persons under 21 years of age to consume cannabis or cannabis products.

(f) Publish or disseminate advertising or marketing that is attractive to children.

(g) Advertise or market cannabis or cannabis products on an advertising sign within 1,000 feet of a day care center, school providing instruction in kindergarten or any grades 1 through 12, playground, or youth center.

B&P Code § 26153 (Amended: Effective June 27, 2017): Prohibition Against Giving Away Marijuana or Marijuana Products:

A licensee shall not give away any amount of cannabis or cannabis products, or any cannabis accessories, as part of a business promotion or other commercial activity.

B&P Code § 26154 (Amended: Effective June 27, 2017): Restrictions on Health-Related Statements in Advertising and Marketing:

A licensee shall not include on the label of any cannabis or cannabis product or publish or disseminate advertising or marketing containing any health-related statement that is untrue in any particular manner or tends to create a misleading impression as to the effects on health of cannabis consumption.

B&P Code § 26155 (Amended: Effective June 27, 2017): Exceptions; Inapplicability of Restrictions to Noncommercial Speech:

(a) The provisions of B&P Code § 26152(g) shall not apply to the placement of advertising signs inside a licensed premises and which are not visible by normal unaided vision from a public place, provided that such advertising signs do not advertise cannabis or cannabis products in a manner intended to encourage persons under 21 years of age to consume cannabis or cannabis products.

(b) This chapter does not apply to any noncommercial speech.

B&P Code § 26156 (New: Effective June 27, 2017): Applicability of B&P Code § 5272:

The requirements of B&P Code § 5272 apply to this division.

B&P Code § 26160 (Amended: Effective June 27, 2017): Accurate Records of Commercial Cannabis Activity; Maintenance of Records; Examination of Books and Records and Inspection of Premises; Penalty for Violation:

(a) A licensee shall keep accurate records of commercial cannabis activity.

(b) All records related to commercial cannabis activity as defined by the licensing authorities shall be maintained for a minimum of seven years.

(c) Licensing authorities may examine the records of a licensee and inspect the premises of a licensee as the licensing authority, or a state or local agency, deems necessary to perform its duties under this division. All inspections and examinations of records shall be conducted during standard business hours of the licensed facility or at any other reasonable time. Licensees shall provide and deliver records to the licensing authority upon request.

(d) Licensees shall keep records identified by the licensing authorities on the premises of the location licensed. The licensing authorities may make any examination of the records of any licensee. Licensees shall also provide and deliver copies of documents to the licensing authority upon request.

(e) A licensee, or its agent or employee, that refuses, impedes, obstructs, or interferes with an inspection of the premises or records of the licensee pursuant to this section, has engaged in a violation of this division.

(f) If a licensee, or an agent or employee of a licensee, fails to maintain or provide the records required pursuant to this section, the licensee shall be subject to a citation and fine of up to thirty thousand dollars ($30,000) per individual violation.

B&P Code § 26161 (Amended: Effective June 27, 2017): Invoices and Receipts:

(a) Every sale or transport of cannabis or cannabis products from one licensee to another licensee must be recorded on a sales invoice or receipt. Sales invoices and receipts may be maintained electronically and must be filed in such manner as to be readily accessible for examination by employees of the licensing authorities or State Board of Equalization and shall not be commingled with invoices covering other commodities.

(b) Each sales invoice required by subdivision (a) shall include the name and address of the seller and shall include the following information:

(1) Name and address of the purchaser.

(2) Date of sale and invoice number.

(3) Kind, quantity, size, and capacity of packages of cannabis or cannabis products sold.

(4) The cost to the purchaser, together with any discount applied to the price as shown on the invoice.

(5) The place from which transport of the cannabis or cannabis product was made unless transport was made from the premises of the licensee.

(6) Any other information specified by the licensing authority.

B&P Code § 26162 (New: Effective June 27, 2017): Confidentiality of Names of Patients, Medical Conditions, and Primary Caregivers; Exceptions:

(a) Information identifying the names of patients, their medical conditions, or the names of their primary caregivers received and contained in records kept by the office or licensing authorities for the purposes of administering this chapter are confidential and shall not be disclosed pursuant to the California Public Records Act (Gov’t. Code §§ 6250 et seq., Title 1, Division 7, Chapter 3.5), except as necessary for authorized employees of the State of California or any city, county, or city and county to perform official duties pursuant to this chapter, or a local ordinance.

(b) Information identifying the names of patients, their medical conditions, or the names of their primary caregivers received and contained in records kept by the bureau for the purposes of administering this chapter shall be maintained in accordance with H&S Code §§ 123100 et seq. (Division 106, Part 2.6, Chapter 1), Civ. Code §§ 56 et seq. (Division 1, Part 2.6), and other state and federal laws relating to confidential patient information.

(c) Nothing in this section precludes the following:

(1) Employees of the bureau or any licensing authorities notifying state or local agencies about information submitted to the agency that the employee suspects is falsified or fraudulent.

(2) Notifications from the bureau or any licensing authorities to state or local agencies about apparent violations of this chapter or applicable local ordinance.

(3) Verification of requests by state or local agencies to confirm licenses and certificates issued by the regulatory authorities or other state agency.

(4) Provision of information requested pursuant to a court order or subpoena issued by a court or an administrative agency or local governing body authorized by law to issue subpoenas.

(d) Information shall not be disclosed by any state or local agency beyond what is necessary to achieve the goals of a specific investigation, notification, or the parameters of a specific court order or subpoena.

B&P Code § 26162.5 (New: Effective June 27, 2017): Information Contained in a Physician’s Recommendation as Medical Information; Confidentiality:

Information contained in a physician’s recommendation issued in accordance with B&P §§ 2525 et seq. (Division 2, Chapter 5, Article 25) and received by a licensee, including, but not limited to, the name, address, or social security number of the patient, the patient’s medical condition, or the name of the patient’s primary caregiver is hereby deemed “medical information” within the meaning of the Confidentiality of Medical Information Act (Civ. Code §§ 56 et seq., Division 1, Part 2.6) and shall not be disclosed by a licensee except as necessary for authorized employees of the State of California or any city, county, or city and county to perform official duties pursuant to this chapter, or a local ordinance.

B&P Code § 26180 (Amended: Effective June 27, 2017): Establishment of Fee Scale: Each licensing authority shall establish a scale of application, licensing, and renewal fees, based upon the cost of enforcing this division, as follows:

(a) Each licensing authority shall charge each licensee a licensure and renewal fee, as applicable. The licensure and renewal fee shall be calculated to cover the costs of administering this division. The licensure fee may vary depending upon the varying costs associated with administering the various regulatory requirements of this division as they relate to the nature and scope of the different licensure activities, including, but not limited to, the track and trace program required pursuant to B&P Code § 26067, but shall not exceed the reasonable regulatory costs to the licensing authority.

(b) The total fees assessed pursuant to this division shall be set at an amount that will fairly and proportionately generate sufficient total revenue to fully cover the total costs of administering this division.

(c) All license fees shall be set on a scaled basis by the licensing authority, dependent on the size of the business.

(d) The licensing authority shall deposit all fees collected in a fee account specific to that licensing authority, to be established in the Cannabis Control Fund. Moneys in the licensing authority fee accounts shall be used, upon appropriation by the Legislature, by the designated licensing authority for the administration of this division.

B&P Code § 26180 (New: Effective June 27, 2017): Safe and Viable Collection of Taxes and Fees:

No later than January 1, 2018, the Secretary of Business, Consumer Services, and Housing or his or her designee shall initiate work with the Legislature, the Department of Consumer Affairs, the Department of Food and Agriculture, the State Department of Public Health, and any other related departments to ensure that there is a safe and viable way to collect cash payments for taxes and fees related to the regulation of cannabis activity throughout the state.

B&P Code § 26181 (Amended: Effective June 27, 2017): Establishment of Fees by Other Agencies to Cover Regulatory Costs:

The State Water Resources Control Board, the Department of Fish and Wildlife, and other agencies may establish fees to cover the costs of their cannabis programs.

B&P Code § 26190 (Amended: Effective June 27, 2017): Annual Reporting by Licensing Authority; Posting on Internet Web Site:

Beginning on March 1, 2023, and on or before March 1 of each year thereafter, each licensing authority shall prepare and submit to the Legislature an annual report on the authority’s activities, in compliance with Gov’t. Code § 9795, and post the report on the authority’s Internet Web site. The report shall include, but not be limited to, the following information for the previous fiscal year:

(a) The amount of funds allocated and spent by the licensing authority for cannabis licensing, enforcement, and administration.

(b) The number of state licenses issued, renewed, denied, suspended, and revoked, by state license category.

(c) The average time for processing state license applications, by state license category.

(d) The number of appeals from the denial of state licenses or other disciplinary actions taken by the licensing authority and the average time spent on these appeals.

(e) The number of complaints submitted by citizens or representatives of cities or counties regarding licensees, provided as both a comprehensive statewide number and by geographical region.

(f) The number and type of enforcement activities conducted by the licensing authorities and by local law enforcement agencies in conjunction with the licensing authorities.

(g) The number, type, and amount of penalties, fines, and other disciplinary actions taken by the licensing authorities.

(h) A detailed list of the petitions for regulatory relief or rulemaking changes received by the licensing authorities from licensees requesting modifications of the enforcement of rules under this division.

(i)

(1) For the first publication of the reports, the licensing authorities shall provide a joint report to the Legislature regarding the state of the cannabis market in California. This report shall identify any statutory or regulatory changes necessary to ensure that the implementation of this division does not do any of the following:

(A) Allow unreasonable restraints on competition by creation or maintenance of unlawful monopoly power.

(B) Perpetuate the presence of an illegal market for cannabis or cannabis products in the state or out of the state.

(C) Encourage underage use or adult abuse of cannabis or cannabis products, or illegal diversion of cannabis or cannabis products out of the state.

(D) Result in an excessive concentration of licensees in a given city, county, or both.

(E) Present an unreasonable risk of minors being exposed to cannabis or cannabis products.

(F) Result in violations of any environmental protection laws.

(2) For purposes of this subdivision, “excessive concentration” means when the premises for a retail license, microbusiness license, or a license issued under B&P Code § 26070.5 is located in an area where either of the following conditions exist:

(A) The ratio of licensees to population in a census tract or census division exceeds the ratio of licensees to population in the county in which the census tract or census division is located, unless reduction of that ratio would unduly limit the development of the legal market so as to perpetuate the illegal market for cannabis or cannabis products.

(B) The ratio of retail licenses, microbusiness licenses, or licenses under B&P Code § 26070.5 to population in the census tract, division, or jurisdiction exceeds that allowable by local ordinance adopted under B&P Code § 26200.

B&P Code § 26190.5 (New: Effective June 27, 2017): The California Cannabis Research Program:

The bureau shall contract with the California Cannabis Research Program, known as the Center for Medicinal Cannabis Research, and formerly known as the California Marijuana Research Program, authorized pursuant to H&S Code § 11362.9, to develop a study that identifies the impact that cannabis has on motor skills.

B&P Code § 26191 (Amended: Effective June 27, 2017): Annual Performance Audit and Report by State Auditor’s Office:

(a) Commencing January 1, 2019, and by January 1 triennially thereafter, the Office of State Audits and Evaluations within the Department of Finance shall conduct a performance audit of the bureau’s activities under this division, and shall report its findings to the bureau and the Legislature by July 1 of that same year. The report shall include, but not be limited to, the following:

(1) The actual costs of the program.

(2) The overall effectiveness of enforcement programs.

(3) Any report submitted pursuant to this section shall be submitted in compliance with Gov’t. Code § 9795.

(b) The Legislature shall provide sufficient funds to the Department of Finance to conduct the triennial audit required by this section.

B&P Code § 26200 (Amended: Effective June 27, 2017): Local Regulation Not Superseded; Notification Upon Revocation of Local License; Smoking, Vaporizing, or Ingesting of Cannabis or Cannabis Products on Premises of Licensed Retailer or Microbusiness:

(a)

(1) This division shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related to reducing exposure to secondhand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction.

(2) This division shall not 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 license, permit, or other authorization requirements.

(b) This division shall not be interpreted to require a licensing authority to undertake local law enforcement responsibilities, enforce local zoning requirements, or enforce local licensing, permitting, or other authorization requirements.

(c) A local jurisdiction shall notify the bureau upon revocation of any local license, permit, or authorization for a licensee to engage in commercial cannabis activity within the local jurisdiction. Within 10 days of notification, the bureau shall inform the relevant licensing authorities. Within 60 days of being so informed by the bureau, the relevant licensing authorities shall begin the process to determine whether a license issued to the licensee should be suspended or revoked pursuant to B&P Code §§ 26030 et seq. (Chapter 3).

(d) For facilities issued a state license that are located within the incorporated area of a city, the city shall have full power and authority to enforce this division and the regulations promulgated by the bureau or any licensing authority, if delegated by the state. Notwithstanding H&S Code §§ 101375, 101400, and 101405 or any contract entered into pursuant thereto, or any other law, the city shall assume complete responsibility for any regulatory function pursuant to this division within the city limits that would otherwise be performed by the county or any county officer or employee, including a county health officer, without liability, cost, or expense to the county.

(e) This division does not prohibit the issuance of a state temporary event license to a licensee authorizing onsite cannabis sales to, and consumption by, persons 21 years of age or older at a county fair or district agricultural association event, provided that the activities, at a minimum, comply with the requirements of subdivision (g)(1) to (3), inclusive, that all participants are licensed under this division, and that the activities are otherwise consistent with regulations promulgated and adopted by the bureau governing state temporary event licenses. These temporary event licenses shall only be issued in local jurisdictions that authorize such events.

(f) This division, or any regulations promulgated thereunder, shall not be deemed to limit the authority or remedies of a city, county, or city and county under any provision of law, including, but not limited to, Section 7 of Article XI of the California Constitution.

(g) Notwithstanding H&S Code § 11362.3(a)(1), a local jurisdiction may allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness licensed under this division if all of the following are met:

(1) Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age and older.

(2) Cannabis consumption is not visible from any public place or nonage-restricted area.

(3) Sale or consumption of alcohol or tobacco is not allowed on the premises.

B&P Code § 26201 (New: Effective Nov. 9, 2016): State Standards, Requirements, and Regulations as Minimum Standards:

Any standards, requirements, and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections established by the state shall be the minimum standards for all licensees under this division statewide. A local jurisdiction may establish additional standards, requirements, and regulations.

B&P Code § 26202 (Amended: Effective June 27, 2017): Enforcement of Division by Local Jurisdiction:

(a) A local jurisdiction may enforce this division and the regulations promulgated by any licensing authority if delegated the power to do so by the licensing authority.

(b) A licensing authority shall implement the delegation of enforcement authority in subdivision (a) through an agreement between the licensing authority and the local jurisdiction to which enforcement authority is to be delegated.

B&P Code § 26210 (Amended: Effective June 27, 2017): Cannabis Control Fund; Cannabis Fines and Penalties Account:

(a) The Marijuana Control Fund, formerly known as the Medical Cannabis Regulation and Safety Act Fund and the Medical Marijuana Regulation and Safety Act Fund, is hereby renamed the Cannabis Control Fund. Notwithstanding Gov’t. Code § 16305.7, the fund shall include any interest and dividends earned on moneys in the fund.

(b) Upon the effective date of this section, whenever “Marijuana Control Fund,” “Medical Cannabis Regulation and Safety Act Fund,” or “Medical Marijuana Regulation and Safety Act Fund” appears in any statute, regulation, or contract, or in any other code, it shall be construed to refer to the Cannabis Control Fund.

(c) Any General Fund or special fund loan that was used to establish and support the regulatory activities of the state licensing entities pursuant to former B&P § 19351 shall be repaid by the initial proceeds from fees collected pursuant to this division or any rule or regulation adopted pursuant to this division, by January 1, 2022. Should the initial proceeds from fees not be sufficient to repay the loan, moneys from the Cannabis Fines and Penalties Account shall be made available to the bureau, by appropriation of the Legislature, to repay the loan.

(d) The Medical Cannabis Fines and Penalties Account established in former B&P § 19351 is hereby renamed the Cannabis Fines and Penalties Account.

B&P Code § 26210.5 (New: Effective June 27, 2017): Collection of Fees and Taxes Humboldt, Trinity, and Mendocino Counties:

By July 1, 2018, the bureau, in coordination with the Department of General Services, shall establish an office to collect fees and taxes in the County of Humboldt, County of Trinity, or County of Mendocino in order to ensure the safe payment and collection of cash in those counties

B&P Code § 26211 (Amended: Effective June 27, 2017): Advancement of Funds from General Fund; Implementation of Public Information Program:

(a) Funds for the initial establishment and support of the regulatory activities under this division, including the public information program described in subdivision (c), and for the activities of the State Board of Equalization under Revenue and Taxation Code §§ 34010 et seq. (Division 2, Part 14.5) until July 1, 2017, or until the 2017 Budget Act is enacted, whichever occurs later, shall be advanced from the General Fund and shall be repaid by the initial proceeds from fees collected pursuant to this division, any rule or regulation adopted pursuant to this division, or revenues collected from the tax imposed by Revenue and Taxation Code §§ 34011 and 34012, by January 1, 2025.

(1) Funds advanced pursuant to this subdivision shall be appropriated to the bureau, which shall distribute the moneys to the appropriate licensing authorities, as necessary to implement the provisions of this division, and to the State Board of Equalization, as necessary, to implement the provisions of Revenue and Taxation Code §§ 34010 et seq. (Division 2, Part 14.5).

(2) Within 45 days of November 9, 2016, the date this section became operative:

(A) The Director of Finance shall determine an amount of the initial advance from the General Fund to the Cannabis Control Fund that does not exceed thirty million dollars ($30,000,000); and

(B) There shall be advanced a sum of five million dollars ($5,000,000) from the General Fund to the State Department of Health Care Services to provide for the public information program described in subdivision (c).

(b) Notwithstanding subdivision (a), the Legislature shall provide sufficient funds to the Cannabis Control Fund to support the activities of the bureau, state licensing authorities under this division, and the State Board of Equalization to support its activities under Revenue and Taxation Code §§ 34010 et seq. (Division 2, Part 14.5). It is anticipated that this funding will be provided annually beginning on July 1, 2017.

(c) The State Department of Health Care Services shall establish and implement a public information program no later than September 1, 2017. This public information program shall, at a minimum, describe the provisions of the Control, Regulate and Tax Adult Use of Marijuana Act of 2016, the scientific basis for restricting access of cannabis and cannabis products to persons under the age of 21 years, describe the penalties for providing access to cannabis and cannabis products to persons under the age of 21 years, provide information regarding the dangers of driving a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation while impaired from cannabis use, the potential harms of using cannabis while pregnant or breastfeeding, and the potential harms of overusing cannabis or cannabis products.

B&P Code § 26220 (New: Effective June 27, 2017): Definitions Relative to This Chapter:

Unless the context otherwise requires, the definitions in this article govern the construction of this chapter.

B&P Code § 26220.1 (New: Effective June 27, 2017): Association:

“Association” means any cannabis cooperative that is organized pursuant to this chapter. An association shall be deemed incorporated pursuant to this chapter, or organized pursuant to this chapter and shall be deemed a cultivator of a cannabis product within the meaning of this chapter, if it is functioning under, or is subject to, the provisions of this chapter, irrespective of whether it was originally incorporated pursuant to those provisions or was incorporated under other provisions.

B&P Code § 26220.2 (New: Effective June 27, 2017): Member:

“Member” includes members of associations without capital stock and holders of common stock in associations that are organized with shares of stock.

B&P Code § 26220.3 (New: Effective June 27, 2017): Cannabis Product:

“Cannabis Product” includes any cannabis associated with a licensed cultivator.

B&P Code § 26222 (New: Effective June 27, 2017): Purpose of Chapter: The purpose of this chapter is to do all of the following:

(a) Promote, foster, and encourage the intelligent and orderly marketing of cannabis product through cooperation.

(b) Eliminate speculation and waste.

(c) Make the distribution of cannabis product as direct as can be efficiently done.

(d) Stabilize the marketing of cannabis product.

(e) Satisfy the conditions of B&P § 26052.

B&P Code § 26222.1 (New: Effective June 27, 2017): Exemptions:

An exemption under law that applies to a cannabis product in the possession, or under the control, of the individual cultivator, shall apply similarly and completely to the cannabis product that is delivered by its cultivator members that are in the possession, or under the control, of the association.

B&P Code § 26222.2 (New: Effective June 27, 2017): Cannabis Cooperatives:

A person, firm, corporation, or association, that is hereafter organized or doing business in this state, may not use the word “cannabis cooperative” as part of its corporate name or other business name or title for producers’ cooperative marketing activities, unless it has complied with this chapter.

B&P Code § 26222.3 (New: Effective June 27, 2017): Conspiring in Restraint of Trade Prohibited:

An association that is organized pursuant to this chapter shall not conspire in restraint of trade, or serve as an illegal monopoly, attempt to lessen competition, or to fix prices in violation of law of this state.

B&P Code § 26222.4 (New: Effective June 27, 2017): Marketing Contracts and Agreements:

The marketing contracts and agreements between an association that is organized pursuant to this chapter and its members and any agreements authorized in this chapter shall not result in restraint of trade, or violation of law of this state.

B&P Code § 26222.5 (New: Effective June 27, 2017): General Corporation Law:

The General Corporation Law, Corp. Code §§ 100 et seq. (Title 1, Division 1) applies to each association that is organized pursuant to this chapter, except where those provisions are in conflict with or inconsistent with the express provisions of this chapter. For the purpose of associations organized without shares of stock, the members shall be deemed to be “shareholders” as the term is used in the General Corporation Law.

B&P Code § 26222.6 (New: Effective June 27, 2017): Proprietary Interests in an Association:

(a) Except as provided in subdivision (c), Code of Civ. Pro. §§ 1500 et seq. (Part 3, Title 10, Chapter 7) does not apply to a proprietary interest in an association organized in accordance with this chapter. A proprietary interest that would otherwise escheat to the state pursuant to Code of Civ. Pro. §§ 1500 et seq. (Title 10, Part 3, Chapter 7) shall instead become the property of the association.

(b) Notwithstanding subdivision (a), no proprietary interest shall become the property of the association under this section unless all of the following requirements are satisfied:

(1) At least 60 days’ prior notice of the proposed transfer of the proprietary interest to the association is given to the affected member by first-class or certified mail to the last address of the member shown on the association’s records, and by publication in a newspaper of general circulation in the county in which the member last resided as shown on the association’s records. Notice given pursuant to this paragraph constitutes actual notice.

(2) No written notice objecting to the transfer is received by the association from the affected member or, if the member is deceased, from the member’s heirs or the executor or executrix of the estate, prior to the date of the proposed transfer.

(c) “Proprietary interest” means and includes any membership, membership certificate, membership share, share certificate, or equity or dividend certificate of any class representing a proprietary interest in, and issued by, the association together with all accrued and unpaid earnings, dividends, and patronage distributions relating thereto.

B&P Code § 26223 (New: Effective June 27, 2017): An Association of Three or More People; Cannabis Cooperatives:

(a) Three or more natural persons, who are engaged in the cultivation of any cannabis product, may form an association pursuant to this chapter for the purpose of engaging in any activity in connection with any of the following:

(1) The cultivation, marketing, or selling of the cannabis products of its members.

(2) The growing, harvesting, curing, drying, trimming, packing, grading, storing, or handling of any product of its members.

(3) The manufacturing, selling, or supplying to its members of machinery, equipment, or supplies.

(4) The financing of the activities that are specified by this section.

(b) Members of a cannabis cooperative shall be disclosed to the licensing authority before the application is processed.

(c) Members of a cannabis cooperative formed pursuant to this chapter shall be limited to cultivators who only hold a single Type 1 or Type 2 license.

(d) Collectively, members of a cannabis cooperative shall not grow more than four acres of total canopy size of cultivation throughout the state during the period that the respective licensees are valid.

(e) No member of a cooperative formed pursuant to this section shall be licensed to operate a cannabis business in another state or country.

B&P Code § 26223 (New: Effective June 27, 2017): Articles of Cooperation:

The articles of incorporation of an association shall show that the signers of the articles of incorporation are engaged in the cultivation of cannabis products, and that they propose to incorporate an association pursuant to this chapter, and shall state all of the following:

(a) The name of the association.

(b) The purposes for which it is formed.

(c) The city, county, or city and county where the principal office for the transaction of business of the association is to be located.

(d) The number of directors of the association, which shall not be less than three, and the names and addresses of the persons who are to serve as first directors. If it is desired that the first directors shall serve for terms of different lengths, the term for which each person so named to serve shall also be stated.

(e) If organized without shares of stock, whether the voting power and the property rights and interest of each member are equal or unequal. If voting power and property rights and interest of each member are unequal, the general rule or rules that are applicable to all members by which the voting power and the property rights and interests, respectively, of each member may be and are determined and fixed shall also be stated.

(f)

(1) If organized with shares of stock, the number of shares that may be issued and if the shares are to have a par value, the par value of each share, and the aggregate par value of all shares. If the shares are to be without par value, it shall be so stated.

(2) If the shares of stock are to be classified, a description of the classes of shares and a statement of the number of shares of each kind or class and the nature and extent of the preferences, rights, privileges, and restrictions that are granted to or imposed upon the holders of the respective classes of stock. Except as to the matters and things so stated, no distinction shall exist between the classes of stock or the holders of them. One class of stock shall always be known as common stock, and voting power may be restricted to holders of common stock.

B&P Code § 26224.1 (New: Effective June 27, 2017): Signing, Acknowledging, and filing Articles of Incorporation:

Articles of incorporation shall be signed, acknowledged, and filed in the manner that is prescribed by the general laws of this state for domestic corporations.

B&P Code § 26224.2 (New: Effective June 27, 2017): Amending Articles of Incorporation:

The articles of incorporation of any association may be amended in the manner and for the purposes which are authorized by the General Corporation Law, Corp. Code §§ 100 et seq. (Title 1, Division 1).

B&P Code § 26225 (New: Effective June 27, 2017): Code of Bylaws:

Each association shall, within 30 days after its incorporation, adopt for its government and management, a code of bylaws, consistent with this chapter. The vote or written assent of shareholders or members that hold at least a majority of the voting power is necessary to adopt the bylaws and is effectual to repeal or amend a bylaw, or to adopt an additional bylaw. The power to repeal and amend the bylaws, and adopt new bylaws, may, by a similar vote, or similar written assent, be delegated to the board of directors, which authority may, by a similar vote, or similar written assent, be revoked.

B&P Code § 26225.1 (New: Effective June 27, 2017): Association Meetings:

The bylaws may prescribe the time, place, and manner of calling and conducting its meetings. Meetings of members or stockholders shall be held at the place as provided in the bylaws, or, if no provision is made, in the city, county, or city and county where the principal place of business is located at a place designated by the board of directors. Meetings of the board of directors may be held at any place within or without the state that is fixed by a quorum of the board of directors unless otherwise provided in the articles of incorporation or bylaws.

B&P Code § 26225.2 (New: Effective June 27, 2017): A Quorum:

The bylaws may prescribe the number of stockholders, directors, or members that constitutes a quorum.

B&P Code § 26225.3 (New: Effective June 27, 2017): Voting: The bylaws may prescribe the following:

(a) The right of members or stockholders to vote by proxy or by mail or both, and the conditions, manner, form, and effects of those votes.

(b) The right of members or stockholders to cumulate their votes and the prohibition, if any, of cumulative voting.

B&P Code § 26225.4 (New: Effective June 27, 2017): Directors and Officers; Article Provisions vs. Bylaw Provisions:

(a) The bylaws may prescribe the qualifications, compensation, duties, and term of office of directors and officers and the time of their election.

(b) The number of directors set forth in the articles of incorporation shall be either a fixed number or a variable number. If a fixed number, it shall not be less than three, and if a variable number, the stated minimum shall not be less than three and the stated maximum shall not be greater than two times the stated minimum minus one.

(c) The number of directors may also be set forth in the bylaws either as a fixed number or as a variable number subject to the same limitations as in subdivision (b). After shares have been issued or members have been admitted, any adoption or amendment of the bylaw provision shall be approved by the outstanding shares as provided in Corp. Code § 152.

(d) In the event of an inconsistency between an article provision referred to in subdivision (b) and a bylaw provision referred to in subdivision (c), the provision more recently adopted or amended shall prevail.

(e) If a variable number of directors is set forth in the articles of incorporation or the bylaws, the exact number of directors shall be fixed, within the limits specified, by approval of the board of directors or the shareholders as provided in Corp. Code § 153 in the manner designated in the bylaws.

B&P Code § 26225.5 (New: Effective June 27, 2017): Penalties for Violations of the Bylaws:

The bylaws may prescribe penalties for violations of the bylaws.

B&P Code § 26225.6 (New: Effective June 27, 2017): Association Fees:

The bylaws may prescribe the amount of entrance, organization, and membership fees, if any, the manner and method of collection of the fees, and the purposes for which they may be used.

B&P Code § 26225.7 (New: Effective June 27, 2017): Association Fees and Marketing Contracts:

The bylaws may prescribe the amount that each member or stockholder shall be required to pay annually, or from time to time, if at all, to carry on the business of the association, the charge, if any, to be paid by each member or stockholder for services that are rendered by the association to him, the time of payment and the manner of collection, and the marketing contract between the association and its members or stockholders that every member or stockholder may be required to sign.

B&P Code § 26225.8 (New: Effective June 27, 2017): Association Dividends:

The bylaws may prescribe the amount of dividends, if any, that may be declared on the stock or membership capital. To the extent that dividends are payable out of the excess of association income over association expenses attributable to business transacted with or for members, dividends shall not exceed 8 percent per annum.

B&P Code § 26225.9 (New: Effective June 27, 2017): Other Bylaw Provisions: The bylaws may prescribe any of the following:

(a) The number and qualification of members or stockholders of the association and the conditions precedent to membership or ownership of common stock.

(b) The method, time, and manner of permitting members to withdraw or the holders of common stock to transfer their stock.

(c) The manner of assignment and transfer of the interest of members, and of the shares of common stock.

(d) The conditions under which, and time when, membership of a member shall cease.

(e) The automatic suspension of the rights of a member when he or she ceases to be eligible to membership in the association.

(f) The mode, manner, and effect of the expulsion of a member.

B&P Code § 26225.95 (New: Effective June 27, 2017): Association Members Death or Expulsion; Procedures:

(a) The bylaws may prescribe any of the following:

(1) The manner of determining the value of a member’s interest and provision for its purchase by the association upon the death or withdrawal of a member or upon the expulsion of a member or forfeiture of his or her membership, or at the option of the association, the purchase at a price fixed by conclusive appraisal by the board of directors.

(2) The conditions and terms for the repurchase by the association from its stockholders of their stock upon their disqualification as stockholders.

(b) If a member is expelled and the bylaws do not provide any procedure or penalty for expulsion, the board of directors shall equitably and conclusively appraise his or her property interest in the association and shall fix the amount of his or her property interest in money, which shall be paid to him or her within one year after such expulsion.

B&P Code § 26226 (New: Effective June 27, 2017): Association Directors:

The affairs of the association shall be managed by a board of not less than three directors who are elected by the members or stockholders.

B&P Code § 26226.1 (New: Effective June 27, 2017): Association Districts and Election of Directors:

The bylaws may provide that the territory in which the association has members shall be divided into districts and that directors shall be elected from the several districts. If the bylaws divides the territory into districts for the election of directors, the bylaws shall specify the number of directors to be elected by each district and the manner and method of reapportioning the directors and of redistricting the territory covered by the association.

B&P Code § 26226.2 (New: Effective June 27, 2017): Nomination of Association Directors:

The bylaws may provide that primary elections shall be held to nominate directors. If the bylaws provide that the territory in which the association has members shall be divided into districts, the bylaws may also provide that the results of the primary elections in the various districts shall be final and shall be ratified at the annual meeting of the association.

B&P Code § 26226.3 (New: Effective June 27, 2017): Election of Representatives or Advisers:

The bylaws may provide that the territory in which the association has members shall be divided into districts, and that the directors shall be elected by representatives or advisers, who themselves have been elected by the members or stockholders from the several territorial districts. If the bylaws divide the territory into districts for the election of representatives or advisers who elect the directors, the bylaws shall specify the number of representatives or advisers to be elected by each district and the manner and method of reapportioning the representatives or advisers and of redistricting the territory that is covered by the association.

B&P Code § 26226.4 (New: Effective June 27, 2017): Selection of Directors by a Public Official or Commission or by Other Directors:

The bylaws may provide that one or more directors may be chosen by a public official or commission or by the other directors selected by the members. The director shall represent primarily the interest of the general public in the association. The director shall have the same powers and rights as other directors. These directors shall not number more than one-fifth of the entire number of directors.

B&P Code § 26226.5 (New: Effective June 27, 2017): Association Executive Committee:

The bylaws may provide for an executive committee and may allot to the committee all the functions and powers of the board of directors, subject to the general direction and control of the board.

B&P Code § 26226.6 (New: Effective June 27, 2017): Remuneration for Officers and Directors:

An association may provide a fair remuneration for the time that is actually spent by its officers and directors in its service and for the service of the members of its executive committee.

B&P Code § 26226.7 (New: Effective June 27, 2017): Vacancies on Board of Directors; Procedures for Filling:

If a vacancy on the board of directors occurs, except by expiration of term, the remaining members of the board, by a majority vote, shall fill the vacancy, unless the bylaws provide for an election of directors by districts. If the bylaws provide for an election of directors by districts, the vacancy shall be filled either by the election of a director from the district in which the vacancy occurs or by the board of directors calling a special meeting of the members or stockholders in that district to fill the vacancy.

B&P Code § 26226.8 (New: Effective June 27, 2017): Election of Officers; Functioning of the Treasurer:

(a) The directors shall elect a president, one or more vice presidents, a secretary, a treasurer, and such other officers as may be prescribed by the bylaws. Any two or more offices, except those of president and secretary, may be held by the same person.

(b) The treasurer may be a bank or a depository and, as such, shall not be considered as an officer, but as a function of the board of directors. In such case, the secretary shall perform the usual accounting duties of the treasurer, except that the funds shall be deposited only as and where authorized by the board of directors.

B&P Code § 26226.9 (New: Effective June 27, 2017): Charges Against and Removal of an Officer; Procedures:

(a) A member may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition that is signed by 5 percent of the members, which requests the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association and, by a vote of a majority of the members, the association may remove the officer or director and fill the vacancy. The director or officer, against whom the charges have been brought, shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses. The person bringing the charges against him or her shall have the same opportunity.

(b) If the bylaws provide for election of directors by districts with primary elections in each district, the petition for removal of a director shall be signed by 20 percent of the members that reside in the district from which the director was elected. The board of directors shall call a special meeting of the members who reside in that district to consider the removal of the director. By a vote of the majority of the members of that district at the special meeting, the director in question shall be removed from office.

B&P Code § 26227 (New: Effective June 27, 2017): Authorized Association Activities:

An association may engage in any activity in connection with the growing, harvesting, curing, drying, trimming, packing, grading, storing, or handling of any cannabis product that is produced or delivered to it by its members; or any activity in connection with the purchase, hiring, or use by its members of supplies, machinery, or equipment, or in the financing of any such activities; or in any one or more of the activities that are specified in this section with a valid license.

B&P Code § 26227.1 (New: Effective June 27, 2017): Association Financial Borrowing and Advances:

An association may borrow without limitation as to the amount of corporate indebtedness or liability and may make advances to members.

B&P Code § 26227.2 (New: Effective June 27, 2017): Association as Agents or Representatives of Members:

An association may act as the agent or representative of any member or members in any of the activities specified in B&P §§ 26226.2 or 26226.3.

B&P Code § 26227.3 (New: Effective June 27, 2017): Association’s Powers as to Shares of Capital Stocks or Bonds:

An association may purchase or otherwise acquire, hold, own, and exercise all rights of ownership in, sell, transfer, pledge, or guarantee the payment of dividends or interest on, or the retirement or redemption of, shares of the capital stock or bonds of an association that is engaged in any related activity or in the growing, harvesting, curing, drying, trimming, packing, grading, storing, or handling of a cannabis product that is handled by the association.

B&P Code § 26227.4 (New: Effective June 27, 2017): Association’s Reserves:

An association may establish reserves and invest the funds of the reserves in bonds or in other property as may be provided in the bylaws.

B&P Code § 26227.5 (New: Effective June 27, 2017): Association’s Ownership of Real or Personal Property:

An association may buy, hold, and exercise all privileges of ownership over such real or personal property as may be necessary or convenient for the conduct and operation of, or incidental to, the business of the association.

B&P Code § 26227.6 (New: Effective June 27, 2017): Association’s Power to Levy Assessments:

An association may levy assessments in the manner and in the amount as may be provided in its bylaws.

B&P Code § 26227.7 (New: Effective June 27, 2017): General Powers of an Association: An association may do any of the following anywhere:

(a) That which is what is necessary, suitable, or proper for the accomplishment of a purpose, or the attainment of an object, that is enumerated in this article.

(b) That which is conducive to, or expedient for, the interest or benefit of the association.

(c) Contract accordingly.

(d) Exercise and possess all powers, rights, and privileges that are necessary or incidental to the purposes for which the association is organized or to the activities in which it is engaged.

(e) Exercise any other rights, powers, and privileges that are granted by the laws of this state to ordinary corporations, except such as are inconsistent with the express provisions of this chapter.

B&P Code § 26227.75 (New: Effective June 27, 2017): Use of An Association’s Facilities; Limitation on the Value of Non-Member’s Cannabis Products, Services, Machinery, Equipment, Supplies, or Facilities:

An association may use or employ any of its facilities for any purpose, provided the proceeds that arise from such use and employment shall go to reduce the cost of operation for its members. The cannabis products that are handled for, or the services, machinery, equipment, or supplies or facilities that are furnished to, nonmembers shall not, however, exceed in value the cannabis products that are handled for, or the services, merchandise, or facilities that are supplied to, members during the same period.

B&P Code § 26227.8 (New: Effective June 27, 2017): An Association’s Relationship with Other Associations:

(a) An association may organize, form, operate, own, control, have an interest in, own stock of, or be a member of any other association, with or without capital stock, that is engaged in growing, harvesting, curing, drying, trimming, packing, grading, storing, or handling of any cannabis product that is handled by the association, or the byproducts of the cannabis product.

(b) Any two or more associations that are organized pursuant to this section may be merged into one constituent association or consolidated into a new association. The merger or consolidation shall be made in the manner that is prescribed by the general laws of the state that cover domestic corporations.

B&P Code § 26227.9 (New: Effective June 27, 2017, amended September 16, 2017): An Association’s Contracts and Agreements with Other Associations:

(a) Any association may, upon resolution adopted by its board of directors, enter into all necessary and proper contracts and agreements and make all necessary and proper stipulations and arrangements with another cannabis cooperative or association that is formed in this state for the cannabis cooperative and more economical carrying on of its business or any part of its business.

(b) Any two or more associations may, by agreement between them, unite in employing and using, or may separately employ and use, the same personnel, methods, means, and agencies for carrying on and conducting their respective business.

B&P Code § 26228 (New: Effective June 27, 2017): Issuance of Certificates, Stock, or Other Securities:

An association is not subject in any manner to the terms of the Corporate Securities Law, Corp. Code §§ 25000 et seq. (Title 4, Division 1), and any association may issue its membership certificates or stock or other securities as provided in this chapter without the necessity of any qualification under that law.

B&P Code § 26228.1 (New: Effective June 27, 2017): An Association’s Issuance of Nonpar Value Stock:

If an association issues nonpar value stock, the issuance of the stock shall be governed by the terms of all general laws that cover the issuance of nonpar value stock in domestic corporations.

B&P Code § 26228.2 (New: Effective June 27, 2017): Discharge of Financial Obligations with Preferred Stock:

If an association with preferred shares of stock purchases the stock or any property, or any interest in any property of any person, it may discharge the obligations that are so incurred, wholly or in part, by exchanging for the acquired interest, shares of its preferred stock to an amount that at par value would equal the fair market value of the stock or interest so purchased, as determined by the board of directors. In that case, the transfer to the association of the stock or interest that is purchased is equivalent to payment in cash for the shares of stock that are issued.

B&P Code § 26228.3 (New: Effective June 27, 2017): Annual Report of the Operations of an Association:

The board of directors of every association shall cause to be sent to the members of the association not later than 120 days after the close of the fiscal or calendar year an annual report of the operations of the association, unless the report is expressly dispensed with in the bylaws. If required by the bylaws, interim reports of the operations of the association for the three-month, six-month, or nine-month periods of the current fiscal year of the association shall be furnished to the members of the association. Such annual report and any such interim reports shall include a balance sheet as of such closing date. Such financial statement shall be prepared from, and be in accordance with, the books. It shall be prepared in a form that is sanctioned by sound accounting practice for the association or approved by a duly certified public accountant or a public accountant.

B&P Code § 26229 (New: Effective June 27, 2017): Admission of Members and Issuance of Common Stock:

Under the terms and conditions that are prescribed in the bylaws adopted by it, an association may admit as members or issue common stock only to persons engaged in the cultivation of a cannabis product that is to be handled by or through the association.

B&P Code § 26229.1 (New: Effective June 27, 2017): Representative of a Nonstock Association:

If a member of a nonstock association is other than a natural person, the member may be represented by any individual, associate, officer, or manager or member of it, who is duly authorized in writing.

B&P Code § 26229.2 (New: Effective June 27, 2017): Associations as a Member or Stockholder of Another Association:

Any association may become a member or stockholder of any other association.

B&P Code § 26229.3 (New: Effective June 27, 2017): Certificate of Membership in an Association:

If a member of an association that is established without shares of stock has paid his membership fee in full, he or she shall receive a certificate of membership.

B&P Code § 26229.4 (New: Effective June 27, 2017): Promissory Notes as Payment for Stock Certificates:

An association shall not issue a certificate for stock to a member until it has been fully paid for. The promissory notes of the members may be accepted by the association as full or partial payment. The association shall hold the stock as security for the payment of the note, but the retention as security does not affect the member’s right to vote.

B&P Code § 26229.5 (New: Effective June 27, 2017): Common Stock Limitations:

An association, in its bylaws, may limit the amount of common stock that any member may own.

B&P Code § 26229.6 (New: Effective June 27, 2017): Prohibition of Transfers of Common Stock or Member Certificates to Persons Not Qualified to be a Shareholder or Member:

The bylaws shall prohibit the transfer of the common stock or membership certificates of the associations to a person that is not qualified to be a shareholder or member as specified in this chapter. These restrictions shall be printed upon every certificate of stock or membership that is subject to them.

B&P Code § 26229.7 (New: Effective June 27, 2017): Purchases of Its Own Common Stock by an Association:

The association may, at any time, as specified in the bylaws, except when the debts of the association exceed 50 percent of its assets, buy in or purchase its common stock at the book value of the common stock, as conclusively determined by the board of directors, and pay for it in cash within one year thereafter.

B&P Code § 26229.8 (New: Effective June 27, 2017): Liability for the Debts of an Association:

A member or stockholder is not liable for the debts of the association to an amount that exceeds the sum that remains unpaid on his membership fee or his subscription to the capital stock, including any unpaid balance on any promissory note that is given in payment of the membership fee or the subscription to the capital stock.

B&P Code § 26230 (New: Effective June 27, 2017): Marketing Contracts:

The association and its members may make and execute marketing contracts that require the members to sell, for any period of time, but not over 15 years, all or a specified part of a cannabis product exclusively to or through the association, or a facility that is created by the association. If the members contract a sale to the association, title to the cannabis product passes absolutely and unreservedly, except for recorded liens, to the association upon delivery or at another specified time that is expressly and definitely agreed in the contract.

B&P Code § 26230.1 (New: Effective June 27, 2017): Specific Enforcement of Delivery Contracts of Cannabis Products:

Notwithstanding any provisions of the Civil Code, a contract that is entered into by a member or stockholder of an association that provides for the delivery to the association of a cannabis product that is produced or acquired by the member or stockholder may be specifically enforced by the association to secure the delivery to it of the cannabis product.

Note: Civil Code § 1550.5 (Effective 1/1/2018) provides in subdivision (b) that:

Notwithstanding any law, including, but not limited to, Civil Code §§ 1550, 1667, and 1668 and federal law, commercial activity relating to medicinal cannabis or adult-use cannabis conducted in compliance with California law and any applicable local standards, requirements, and regulations shall be deemed to be all of the following:

(1) A lawful object of a contract.

(2) Not contrary to, an express provision of law, any policy of express law, or good morals.

(3) Not against public policy.

Also Note: Evid. Code § 956 (Amended; Effective 1/1/2018), providing for a fraud exception to the “Attorney-Client Privilege” (see E.C. § 952), now includes in new subdivision (b) the following provision:

This exception to the privilege granted by this article shall not apply to legal services rendered in compliance with state and local laws on medicinal cannabis or adult-use cannabis, and confidential communications provided for the purpose of rendering those services are confidential communications between client and lawyer, as defined in E.C. § 952, provided the lawyer also advises the client on conflicts with respect to federal law.

B&P Code § 26230.2 (New: Effective June 27, 2017): Liquidated Damages:

The bylaws or a marketing contract may fix, as liquidated damages, specific sums to be paid by the member or stockholder to the association upon the breach by him or her of any provision of the marketing contract regarding the sale or delivery or withholding of a cannabis product and may provide that the member will pay all costs, premiums for bonds, expenses, and fees, if any action is brought upon the contract by the association. These provisions are valid and enforceable in the courts of this state. The clauses that provide for liquidated damages are enforceable as such and shall not be regarded as penalties.

B&P Code § 26230.3 (New: Effective June 27, 2017): Breaches of Marketing Contracts:

If there is a breach or threatened breach of a marketing contract by a member, the association shall be entitled to an injunction to prevent the further breach of the contract and to a decree of specific performance of the contract. Pending the adjudication of the action and upon filing a verified complaint that shows the breach or threatened breach, and upon filing a sufficient bond, the association shall be entitled to a temporary restraining order and preliminary injunction against the member.

B&P Code § 26231 (New: Effective June 27, 2017): Amendment of an Association’s Articles of Incorporation to Come Within the Provisions of This Chapter:

A corporation that is organized or existing pursuant to any law except Civ. Code §§ 653aa et seq. (Title 23, Division 1, Part 4) may be brought under the provisions of this chapter by amending its articles of incorporation, in the manner that is prescribed by the general corporation laws, to conform to this chapter. If a corporation amends its articles of incorporation to conform to this chapter, it shall be deemed to be organized and existing pursuant to, and entitled to the benefit of, and subject to this chapter for all purposes and as fully as though it had been originally organized pursuant to this chapter.

B&P Code § 26231.1 (New: Effective June 27, 2017): Presumed Intent to Conform to This Chapter:

Articles of incorporation shall be deemed to conform to this chapter within the meaning of B&P § 26231 if it clearly appears from the articles of incorporation that the corporation desires to be subject to, and to be organized, exist, and function pursuant to this chapter.

B&P Code § 26231.2 (New: Effective June 27, 2017): Ineffectiveness of Original Articles of Incorporation:

If the amended articles conform, as provided in B&P § 26231.1, provisions in the articles of incorporation that appeared in the original articles or some previous amended articles, are ineffective if, and to the extent that, they are inapplicable to, or inconsistent with, this chapter.

F&G Code § 1602 (Amended: Effective June 27, 2017): Diversion of the Natural Flow of a River, Stream, or Lake; Depositing Debris, Etc., Into a River, Stream, or Lake:

(a) An entity shall not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless all of the following occur:

(1) The department receives written notification regarding the activity in the manner prescribed by the department. The notification shall include, but is not limited to, all of the following:

(A) A detailed description of the project’s location and a map.

(B) The name, if any, of the river, stream, or lake affected.

(C) A detailed project description, including, but not limited to, construction plans and drawings, if applicable.

(D) A copy of any document prepared pursuant to Public Resources Code §§ 21000 et seq. (Division 13)

(E) A copy of any other applicable local, state, or federal permit or agreement already issued.

(F) Any other information required by the department.

(2) The department determines the notification is complete in accordance with Gov’t. Code §§ 65920 et seq. (Title 7, Division 1, Chapter 4.5), irrespective of whether the activity constitutes a development project for the purposes of that chapter.

(3) The entity pays the applicable fees, pursuant to Section 1609.

(4) One of the following occurs:

(A)

(i) The department informs the entity, in writing, that the activity will not substantially adversely affect an existing fish or wildlife resource, and that the entity may commence the activity without an agreement, if the entity conducts the activity as described in the notification, including any measures in the notification that are intended to protect fish and wildlife resources.

(ii) Each region of the department shall log the notifications of activities where no agreement is required. The log shall list the date the notification was received by the department, a brief description of the proposed activity, and the location of the activity. Each item shall remain on the log for one year. Upon written request by any person, a regional office shall send the log to that person monthly for one year. A request made pursuant to this clause may be renewed annually.

(B) The department determines that the activity may substantially adversely affect an existing fish or wildlife resource and issues a final agreement to the entity that includes reasonable measures necessary to protect the resource, and the entity conducts the activity in accordance with the agreement.

(C) A panel of arbitrators issues a final agreement to the entity in accordance with subdivision (b) of Section 1603, and the entity conducts the activity in accordance with the agreement.

(D) The department does not issue a draft agreement to the entity within 60 days from the date notification is complete, and the entity conducts the activity as described in the notification, including any measures in the notification that are intended to protect fish and wildlife resources.

(b)

(1) If an activity involves the routine maintenance and operation of water supply, drainage, flood control, or waste treatment and disposal facilities, notice to and agreement with the department shall not be required after the initial notification and agreement, unless the department determines either of the following:

(A) The work described in the agreement has substantially changed.

(B) Conditions affecting fish and wildlife resources have substantially changed, and those resources are adversely affected by the activity conducted under the agreement.

(2) This subdivision applies only if notice to, and agreement with, the department was attained prior to January 1, 1977, and the department has been provided a copy of the agreement or other proof of the existence of the agreement that satisfies the department, if requested.

(c) Notwithstanding subdivision (a), the department is not required to determine whether the notification is complete or otherwise process the notification until the department has received the applicable fees.

(d)

(1) Notwithstanding subdivision (a), an entity shall not be required to obtain an agreement with the department pursuant to this chapter for activities authorized by a license or renewed license for cannabis cultivation issued by the Department of Food and Agriculture for the term of the license or renewed license if all of the following occur:

(A) The entity submits all of the following to the department:

(i) The written notification described in paragraph (1) of subdivision (a).

(ii) A copy of the license or renewed license for cannabis cultivation issued by the Department of Food and Agriculture that includes the requirements specified in B&P § 26060.1.

(iii) The fee specified in subdivision (a)(3).

(B) The department determines in its sole discretion that compliance with the requirements specified in B&P § 26060.1 that are included in the license will adequately protect existing fish and wildlife resources that may be substantially adversely affected by the cultivation without the need for additional measures that the department would include in a draft streambed alteration agreement in accordance with F&G Code § 1603.

(C) The department notifies the entity in writing that the exemption applies to the cultivation authorized by the license or renewed license.

(2) The department shall notify the entity in writing whether the exemption in paragraph (1) applies to the cultivation authorized by the license or renewed license within 60 days from the date that the notification is complete and the fee has been paid.

(3) If an entity receives an exemption pursuant to this subdivision and fails to comply with any of the requirements described in B&P § 26060.1 that are included in the license, the failure shall constitute a violation under this section, and the department shall notify the Department of Food and Agriculture of any enforcement action taken.

(e) It is unlawful for any entity to violate this chapter.

F&G Code § 1617 (Amended: Effective June 27, 2017): General Agreements for the Cultivation of Cannabis:

(a) The department may adopt general agreements for the cultivation of cannabis.

(b) Any general agreement adopted by the department subsequent to adoption of regulations under this section shall be in lieu of an individual agreement described in F&G Code § 1602(a)(4)(B).

(c) F&G Code § 1602(a)(4)(D) and all other time periods to process agreements specified in this chapter do not apply to the issuance of a general agreement adopted by the department pursuant to this section.

(d) Any general agreement issued by the department pursuant to this section is a final agreement and is not subject to F&G Code §§ 1603 or 1604.

(e) The department shall charge a fee for a general agreement adopted by the department under this section in accordance with F&G Code § 1609.

(f) If the department adopts or amends a general agreement under this section, it shall do so as an emergency regulation. An emergency regulation adopted pursuant to this section, and any amendments to it, shall be adopted by the department in accordance with Gov’t. Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, and general welfare. Notwithstanding Gov’t. Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5), an emergency regulation adopted by the department, or any amendments to it made by the department pursuant to this section, shall stay in effect until revised by the department.

(g) Regulations adopted pursuant to this section, and any amendment thereto, shall not be subject to the Public Resources Code §§ 21000 et seq. (Division 13).

Food & Agri. Code § 37104 (Amended: Effective June 27, 2017): Butter Infused or Mixed With Medicinal or Adult-Use Cannabis:

Notwithstanding Section B&P Code § 26001, butter purchased from a licensed milk products plant or retail location that is subsequently infused or mixed with medicinal or adult-use cannabis at the premises or location that is not subject to licensing as a milk product plant is exempt from the provisions of this division.

Food & Agri. Code § 54036 (Amended: Effective June 27, 2017): Use of the Word “Cooperative” In Its Corporate Name, Business Name, or Title for Producers’ Cooperative Marketing Activities:

A person, firm, corporation, or association, that is hereafter organized or doing business in this state, may not use the word “cooperative” as part of its corporate name or other business name or title for producers’ cooperative marketing activities, unless it has complied with this chapter or is otherwise authorized by B&P Code §§ 26220 et seq. (Division 10, Chapter 22).

Food & Agri. Code § 81010 (Amended: Effective June 27, 2017): Operative Date:

This division, and Food & Agri. Code § 221 shall become operative on January 1, 2017.

Rev. & Tax. Code § 34010 (Amended; Effective June 27, 2017, amended September 16, 2017): Relevant Definitions:

For purposes of this part:

(a) “Arm’s length transaction” shall mean a sale entered into in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction.

(b) “Average market price” shall mean:

(1) In an arm’s length transaction, the average market price means the average retail price determined by the wholesale cost of the cannabis or cannabis products sold or transferred to a cannabis retailer, plus a mark-up, as determined by the department on a biannual basis in six-month intervals.

(2) In a nonarm’s length transaction, the average market price means the cannabis retailer’s gross receipts from the retail sale of the cannabis or cannabis products.

(c) “Department” shall mean the California Department of Tax and Fee Administration or its successor agency.

(d) “Bureau” shall mean the Bureau of Cannabis Control within the Department of Consumer Affairs.

(e) “Tax Fund” means the California Cannabis Tax Fund created by Rev. & Tax. Code § 34018.

(f) “Cannabis” shall have the same meaning as set forth in H&S Code § 11018 and shall also mean medicinal cannabis.

(g) “Cannabis products” shall have the same meaning as set forth in H&S Code § 11018.1 and shall also mean medicinal concentrates and medicinal cannabis products.

(h) “Cannabis flowers” shall mean the dried flowers of the cannabis plant as defined by the board.

(i) “Cannabis leaves” shall mean all parts of the cannabis plant other than cannabis flowers that are sold or consumed.

(j) “Cannabis retailer” shall mean a person required to be licensed as a retailer, microbusiness, or nonprofit pursuant to B&P Code §§ 26000 et seq. (Division 10).

(k) “Cultivator” shall mean all persons required to be licensed to cultivate cannabis pursuant to B&P Code §§ 26000 et seq. (Division 10).

(l) “Distributor” shall mean a person required to be licensed as a distributor pursuant to B&P Code §§ 26000 et seq. (Division 10).

(m) “Enters the commercial market” shall mean cannabis or cannabis product, except for immature cannabis plants and seeds, that complete and comply with a quality assurance review and testing, as described in B&P Code § 26110.

(n) “Gross receipts” shall have the same meaning as set forth in Rev. & Tax. Code § 6012.

(o) “Microbusiness” shall have the same meaning as set forth in B&P Code § 26070(a)(3).

(p) “Nonprofit” shall have the same meaning as set forth in B&P Code § 26070.5.

(q) “Person” shall have the same meaning as set forth in Rev. & Tax. Code § 6005.

(r) “Retail sale” shall have the same meaning as set forth in Rev. & Tax. Code § 6007.

(s) “Sale” and “purchase” shall mean any change of title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration.

(t) “Transfer” shall mean to grant, convey, hand over, assign, sell, exchange, or barter, in any manner or by any means, with or without consideration.

(u) “Unprocessed cannabis” shall include cannabis flowers, cannabis leaves, or other categories of harvested cannabis, categories for unprocessed or frozen cannabis or immature plants, or cannabis that is shipped directly to manufacturers.

(v) “Manufacturer” shall mean a person required to be licensed as a manufacturer pursuant to B&P Code §§ 26000 et seq. (Division 10).

Rev. & Tax. Code § 34011 (Amended; Effective June 27, 2017, amended September 16, 2017): Excise Tax on Purchases of Cannabis & Cannabis Products:

(a)

(1) Effective January 1, 2018, a cannabis excise tax shall be imposed upon purchasers of cannabis or cannabis products sold in this state at the rate of 15 percent of the average market price of any retail sale by a cannabis retailer. A purchaser’s liability for the cannabis excise tax is not extinguished until the cannabis excise tax has been paid to this state except that an invoice, receipt, or other document from a cannabis retailer given to the purchaser pursuant to this subdivision is sufficient to relieve the purchaser from further liability for the tax to which the invoice, receipt, or other document refers.

(2) Each cannabis retailer shall provide a purchaser with an invoice, receipt, or other document that includes a statement that reads: “The cannabis excise taxes are included in the total amount of this invoice.”

(3) The department may prescribe other means to display the cannabis excise tax on an invoice, receipt, or other document from a cannabis retailer given to the purchaser.

(b)

(1) A distributor in an arm’s length transaction shall collect the cannabis excise tax from the cannabis retailer on or before 90 days after the sale or transfer of cannabis or cannabis product to the cannabis retailer. A distributor in a nonarm’s length transaction shall collect the cannabis excise tax from the cannabis retailer on or before 90 days after the sale or transfer of cannabis or cannabis product to the cannabis retailer, or at the time of retail sale by the cannabis retailer, whichever is earlier. A distributor shall report and remit the cannabis excise tax to the department pursuant to Rev. & Tax. Code § 34015. A cannabis retailer shall be responsible for collecting the cannabis excise tax from the purchaser and remitting the cannabis excise tax to the distributor in accordance with rules and procedures established under law and any regulations adopted by the department.

(2) A distributor shall provide an invoice, receipt, or other similar document to the cannabis retailer that identifies the licensee receiving the product, the distributor from which the product originates, including the associated unique identifier, the amount of cannabis excise tax, and any other information deemed necessary by the department. The department may authorize other forms of documentation under this paragraph.

(c) The excise tax imposed by this section shall be in addition to the sales and use tax imposed by the state and local governments.

(d) Gross receipts from the sale of cannabis or cannabis products for purposes of assessing the sales and use tax under Rev. & Tax. Code §§ 6001 et seq. (Part 1) shall include the tax levied pursuant to this section.

(e) Cannabis or cannabis products shall not be sold to a purchaser unless the excise tax required by law has been paid by the purchaser at the time of sale.

(f) The sales and use taxes imposed by Rev. & Tax. Code §§ 6001 et seq. (Part 1) shall not apply to retail sales of medicinal cannabis, medicinal cannabis concentrate, edible medicinal cannabis products, or topical cannabis as those terms are defined in B&P Code §§ 26000 et seq. (Division 10) when a qualified patient or primary caregiver for a qualified patient provides his or her card issued under H&S Code § 11362.71 and a valid government-issued identification card.

Rev. & Tax. Code § 34012 (Amended; Effective June 27, 2017, amended September 16, 2017): Cultivation Code on Harvested Cannabis; Tax Stamps & State-Issued Product Bags:

(a) Effective January 1, 2018, there is hereby imposed a cultivation tax on all harvested cannabis that enters the commercial market upon all cultivators. The tax shall be due after the cannabis is harvested and enters the commercial market.

(1) The tax for cannabis flowers shall be nine dollars and twenty-five cents ($9.25) per dry-weight ounce.

(2) The tax for cannabis leaves shall be set at two dollars and seventy-five cents ($2.75) per dry-weight ounce.

(b) The department may adjust the tax rate for cannabis leaves annually to reflect fluctuations in the relative price of cannabis flowers to cannabis leaves.

(c) The department may from time to time establish other categories of harvested cannabis, categories for unprocessed or frozen cannabis or immature plants, or cannabis that is shipped directly to manufacturers. These categories shall be taxed at their relative value compared with cannabis flowers.

(d) The department may prescribe by regulation a method and manner for payment of the cultivation tax that utilizes tax stamps or state-issued product bags that indicate that all required tax has been paid on the product to which the tax stamp is affixed or in which the cannabis is packaged.

(e) The tax stamps and product bags shall be of the designs, specifications, and denominations as may be prescribed by the department and may be purchased by any licensee under B&P Code §§ 26000 et seq. (Division 10).

(f) Subsequent to the establishment of a tax stamp program, the department may by regulation provide that cannabis shall not be removed from a licensed cultivation facility or transported on a public highway unless in a state-issued product bag bearing a tax stamp in the proper denomination.

(g) The tax stamps and product bags shall be capable of being read by a scanning or similar device and must be traceable utilizing the track and trace system pursuant to B&P Code § 26068.

(h) Cultivators shall be responsible for payment of the tax pursuant to regulations adopted by the department. A cultivator’s liability for the tax is not extinguished until the tax has been paid to this state except that an invoice, receipt, or other document from a distributor or manufacturer given to the cultivator pursuant to paragraph (3) is sufficient to relieve the cultivator from further liability for the tax to which the invoice, receipt, or other document refers. Cannabis shall not be sold unless the tax has been paid as provided in this part.

(1) A distributor shall collect the cultivation tax from a cultivator on all harvested cannabis that enters the commercial market. This paragraph shall not apply where a cultivator is not required to send, and does not send, the harvested cannabis to a distributor.

(2)

(A) A manufacturer shall collect the cultivation tax from a cultivator on the first sale or transfer of unprocessed cannabis by a cultivator to a manufacturer. The manufacturer shall remit the cultivation tax collected on the cannabis product sold or transferred to a distributor for quality assurance, inspection, and testing, as described in B&P Code § 26110. This paragraph shall not apply where a distributor collects the cultivation tax from a cultivator pursuant to paragraph (1).

(B) Notwithstanding subparagraph (A), the department may prescribe a substitute method and manner for collection and remittance of the cultivation tax under this paragraph, including a method and manner for collection of the cultivation tax by a distributor.

(3) A distributor or manufacturer shall provide to the cultivator, and a distributor that collects the cultivation tax from a manufacturer pursuant to paragraph (2) shall provide to the manufacturer, an invoice, receipt, or other similar document that identifies the licensee receiving the product, the cultivator from which the product originates, including the associated unique identifier, the amount of cultivation tax, and any other information deemed necessary by the department. The department may authorize other forms of documentation under this paragraph.

(4) The department may adopt regulations prescribing procedures for the refund of cultivation tax collected on cannabis or cannabis product that fails quality assurance, inspection, and testing as described in B&P Code § 26110.

(i) All cannabis removed from a cultivator’s premises, except for plant waste, shall be presumed to be sold and thereby taxable under this section.

(j) The tax imposed by this section shall be imposed on all cannabis cultivated in the state pursuant to rules and regulations promulgated by the department, but shall not apply to cannabis cultivated for personal use under H&S Code § 11362.1 or cultivated by a qualified patient or primary caregiver in accordance with the Compassionate Use Act of 1996 (H&S Code § 11362.5).

(k) Beginning January 1, 2020, the rates set forth in subdivisions (a), (b), and (c) shall be adjusted by the department annually thereafter for inflation.

(l) The Department of Food and Agriculture is not responsible for enforcing any provisions of the cultivation tax.

Rev. & Tax. Code § 34012.5 (Amended; Effective June 27, 2017, amended September 16, 2017): Excess Cultivation and Excise Taxes; Debts Owed to the State:

(a) The cultivation tax and cannabis excise tax required to be collected by the distributor, or required to be collected by the manufacturer pursuant to Rev. & Tax. Code § 34012(h)(2), and any amount unreturned to the cultivator or cannabis retailer that is not tax but was collected from the cultivator or cannabis retailer under the representation by the distributor or the manufacturer that it was tax constitute debts owed by the distributor or the manufacturer to this state.

(b) A distributor or manufacturer that has collected any amount of tax in excess of the amount of tax imposed by this part and actually due from a cultivator or cannabis retailer, may refund such amount to the cultivator or cannabis retailer, even though such tax amount has already been paid over to the department and no corresponding credit or refund has yet been secured. The distributor or manufacturer may claim credit for that overpayment against the amount of tax imposed by this part that is due upon any other quarterly return, providing that credit is claimed in a return dated no later than three years from the date of overpayment.

(c) Any tax collected from a cultivator or cannabis retailer that has not been remitted to the department shall be deemed a debt owed to the State of California by the person required to collect and remit the tax.

Rev. & Tax. Code § 34013 (Amended; Effective June 27, 2017): The Fee Collection Procedures Law; Emergency Regulations; Penalty for Non-Payment of Taxes:

(a) The board shall administer and collect the taxes imposed by this part pursuant to the Fee Collection Procedures Law §§ 55001 et seq. (Part 30). For purposes of this part, the references in the Fee Collection Procedures Law to “fee” shall include the taxes imposed by this part, and references to “feepayer” shall include a person required to pay or collect the taxes imposed by this part.

(b) The board may prescribe, adopt, and enforce regulations relating to the administration and enforcement of this part, including, but not limited to, collections, reporting, refunds, and appeals.

(c) The board shall adopt necessary rules and regulations to administer the taxes in this part. Such rules and regulations may include methods or procedures to tag cannabis or cannabis products, or the packages thereof, to designate prior tax payment.

(d) Until January 1, 2019, the board may prescribe, adopt, and enforce any emergency regulations as necessary to implement, administer, and enforce its duties under this division. Any emergency regulation prescribed, adopted, or enforced pursuant to this section shall be adopted in accordance with Gov’t. Code §§ 11340 et seq. (Title 2, Division 3, Part 1, Chapter 3.5), and, for purposes of that chapter, including Gov’t. Code § 11349.6, the adoption of the regulation is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, and general welfare. Notwithstanding any other provision of law, the emergency regulations adopted by the board may remain in effect for two years from adoption.

(e) Any person required to be licensed pursuant to B&P Code §§ 26000 et seq. (Division 10) who fails to pay the taxes imposed under this part shall, in addition to owing the taxes not paid, be subject to a penalty of at least one-half the amount of the taxes not paid, and shall be subject to having its license revoked pursuant to B&P Code § 26031.

(f) The board may bring such legal actions as are necessary to collect any deficiency in the tax required to be paid, and, upon the board’s request, the Attorney General shall bring the actions.

Rev. & Tax. Code § 55044 (Amended, Sept. 16, 2017): Relief from Penalties:

(a) If the department finds that a person’s failure to make a timely return or payment is due to reasonable cause and circumstances beyond the person’s control, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the penalty provided by Rev. & Tax. Code § 34013, 55042, 55050, and 55086.

(b) Except as provided in subdivision (c), any person seeking to be relieved of the penalty shall file with the department a statement, under penalty of perjury, setting forth the facts upon which he or she bases his or her claim for relief.

(c) The department shall establish criteria that provide for efficient resolution of requests for relief pursuant to this section.

Rev. & Tax. Code § 34014 (Amended; Effective June 27, 2017): Required Permit for Licensed Distributors, Etc.; Security for Tax Liability:

(a) All distributors must obtain a separate permit from the board pursuant to regulations adopted by the board. No fee shall be charged to any person for issuance of the permit. Any person required to obtain a permit who engages in business as a distributor without a permit or after a permit has been canceled, suspended, or revoked, and each officer of any corporation which so engages in business, is guilty of a misdemeanor.

(b) The board may require every licensed distributor, retailer, cultivator, microbusiness, nonprofit, or other person required to be licensed, to provide security to cover the liability for taxes imposed by state law on cannabis produced or received by the retailer, cultivator, microbusiness, nonprofit, or other person required to be licensed in accordance with procedures to be established by the board. Notwithstanding anything herein to the contrary, the board may waive any security requirement it imposes for good cause, as determined by the board. “Good cause” includes, but is not limited to, the inability of a distributor, retailer, cultivator, microbusiness, nonprofit, or other person required to be licensed to obtain security due to a lack of service providers or the policies of service providers that prohibit service to a cannabis business. A person may not commence or continue any business or operation relating to cannabis cultivation until any surety required by the board with respect to the business or operation has been properly prepared, executed, and submitted under this part.

(c) In fixing the amount of any security required by the board, the board shall give consideration to the financial hardship that may be imposed on licensees as a result of any shortage of available surety providers.

Rev. & Tax. Code § 34015 (Amended; Effective June 27, 2017): Return and Payment of Tax; Report of Inventory, Purchases, and Sales; Examination of the Books & Records:

(a) Unless otherwise prescribed by the board pursuant to subdivision (c), the excise tax and cultivation tax imposed by this part is due and payable to the board quarterly on or before the last day of the month following each quarterly period of three months. On or before the last day of the month following each quarterly period, a return for the preceding quarterly period shall be filed with the board by each distributor using electronic media. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board. If the cultivation tax is paid by stamp pursuant to subdivision Rev. & Tax. Code § 34012(d) the board may by regulation determine when and how the tax shall be paid.

(b) The board may require every person engaged in the cultivation, distribution, manufacturing, retail sale of cannabis or cannabis products, or any other person required to be licensed pursuant to B&P Code §§ 26000 et seq. (Division 10) to file, on or before the 25th day of each month, a report using electronic media respecting the person’s inventory, purchases, and sales during the preceding month and any other information as the board may require to carry out the purposes of this part. Reports shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

(c) The board may adopt regulations prescribing the due date for returns and remittances of excise tax collected by a distributor in an arm’s length transaction pursuant to Rev. & Tax. Code § 34011(b).

(d) The board may make examinations of the books and records of any person licensed, or required to be licensed, pursuant to B&P Code §§ 26000 et seq. (Division 10), as it may deem necessary in carrying out this part.

Rev. & Tax. Code § 34016 (Amended; Effective June 27, 2017): Inspections of Cannabis and Cannabis Products Sales, Cultivation, & Storage Sites; Penalty for Refusal to Allow Inspection; Seizure of Cannabis & Cannabis Products; Penalty for False or Fraudulent Reports:

(a) Any peace officer or board employee granted limited peace officer status pursuant to P.C. § 830.11(a)(6), upon presenting appropriate credentials, is authorized to enter any place as described in paragraph (3) and to conduct inspections in accordance with the following paragraphs, inclusive.

(1) Inspections shall be performed in a reasonable manner and at times that are reasonable under the circumstances, taking into consideration the normal business hours of the place to be entered.

(2) Inspections may be at any place at which cannabis or cannabis products are sold to purchasers, cultivated, or stored, or at any site where evidence of activities involving evasion of tax may be discovered.

(3) Inspections shall be conducted no more than once in a 24-hour period.

(b) Any person who fails or refuses to allow an inspection shall be guilty of a misdemeanor. Each offense shall be punished by a fine not to exceed five thousand dollars ($5,000), or imprisonment not exceeding one year in a county jail, or both the fine and imprisonment. The court shall order any fines assessed be deposited in the California Cannabis Tax Fund.

(c) Upon discovery by the board or a law enforcement agency that a licensee or any other person possesses, stores, owns, or has made a retail sale of cannabis or cannabis products, without evidence of tax payment or not contained in secure packaging, the board or the law enforcement agency shall be authorized to seize the cannabis or cannabis products. Any cannabis or cannabis products seized by a law enforcement agency or the board shall within seven days be deemed forfeited and the board shall comply with the procedures set forth in Sections 30436 through 30449, inclusive.

(d) Any person who renders a false or fraudulent report is guilty of a misdemeanor and subject to a fine not to exceed one thousand dollars ($1,000) for each offense.

(e) Any violation of any provisions of this part, except as otherwise provided, is a misdemeanor and is punishable as such.

(f) All moneys remitted to the board under this part shall be credited to the California Cannabis Tax Fund.

Rev. & Tax. Code § 34018 (Amended; Effective June 27, 2017): The California Cannabis Tax Fund:

(a) The California Cannabis Tax Fund is hereby created in the State Treasury. The Tax Fund shall consist of all taxes, interest, penalties, and other amounts collected and paid to the board pursuant to this part, less payment of refunds.

(b) Notwithstanding any other law, the California Cannabis Tax Fund is a special trust fund established solely to carry out the purposes of the Control, Regulate and Tax Adult Use of Marijuana Act and all revenues deposited into the Tax Fund, together with interest or dividends earned by the fund, are hereby continuously appropriated for the purposes of the Control, Regulate and Tax Adult Use of Marijuana Act without regard to fiscal year and shall be expended only in accordance with the provisions of this part and its purposes.

(c) Notwithstanding any other law, the taxes imposed by this part and the revenue derived therefrom, including investment interest, shall not be considered to be part of the General Fund, as that term is used in Gov’t. Code §§ 16300 et seq. (Division 4, Part 2, Chapter 1), shall not be considered General Fund revenue for purposes of the California Constitution, Article XVI, § 8, and its implementing statutes, and shall not be considered “moneys” for purposes of California Constitution, Article XVI, § 8(a) & (b) and its implementing statutes.

Rev. & Tax. Code § 34019 (Amended; Effective June 27, 2017): Disbursal of Tax Funds Including Funds for Research, to Develop DUI Drugs Protocols, for a Community Reinvestments Grants Program, for Other Drug Treatment Programs; for Environmental Restoration and Protection Purposes; and for Law Enforcement Training:

(a) Beginning with the 2017–18 fiscal year, the Department of Finance shall estimate revenues to be received pursuant to Rev. & Tax. Code §§ 34011 and 34012 and provide those estimates to the Controller no later than June 15 of each year. The Controller shall use these estimates when disbursing funds pursuant to this section. Before any funds are disbursed pursuant to subdivisions (b), (c), (d), and (e) of this section, the Controller shall disburse from the Tax Fund to the appropriate account, without regard to fiscal year, the following:

(1) Reasonable costs incurred by the board for administering and collecting the taxes imposed by this part; provided, however, such costs shall not exceed 4 percent of tax revenues received.

(2) Reasonable costs incurred by the bureau, the Department of Consumer Affairs, the Department of Food and Agriculture, and the State Department of Public Health for implementing, administering, and enforcing B&P Code §§ 26000 et seq. (Division 10) to the extent those costs are not reimbursed pursuant to B&P Code § 26180. This paragraph shall remain operative through the 2022–23 fiscal year.

(3) Reasonable costs incurred by the Department of Fish and Wildlife, the State Water Resources Control Board, and the Department of Pesticide Regulation for carrying out their respective duties under B&P Code §§ 26000 et seq. (Division 10) to the extent those costs are not otherwise reimbursed.

(4) Reasonable costs incurred by the Controller for performing duties imposed by the Control, Regulate and Tax Adult Use of Marijuana Act, including the audit required by Rev. & Tax. Code § 34020.

(5) Reasonable costs incurred by the Department of Finance for conducting the performance audit pursuant to B&P Code § 26191.

(6) Reasonable costs incurred by the Legislative Analyst’s Office for performing duties imposed by Rev. & Tax. Code § 34017.

(7) Sufficient funds to reimburse the Division of Labor Standards Enforcement and the Division of Occupational Safety and Health within the Department of Industrial Relations and the Employment Development Department for the costs of applying and enforcing state labor laws to licensees under B&P Code §§ 26000 et seq. (Division 10).

(b) The Controller shall next disburse the sum of ten million dollars ($10,000,000) to a public university or universities in California annually beginning with the 2018–19 fiscal year until the 2028–29 fiscal year to research and evaluate the implementation and effect of the Control, Regulate and Tax Adult Use of Marijuana Act, and shall, if appropriate, make recommendations to the Legislature and Governor regarding possible amendments to the Control, Regulate and Tax Adult Use of Marijuana Act. The recipients of these funds shall publish reports on their findings at a minimum of every two years and shall make the reports available to the public. The bureau shall select the universities to be funded. The research funded pursuant to this subdivision shall include but not necessarily be limited to:

(1) Impacts on public health, including health costs associated with cannabis use, as well as whether cannabis use is associated with an increase or decrease in use of alcohol or other drugs.

(2) The impact of treatment for maladaptive cannabis use and the effectiveness of different treatment programs.

(3) Public safety issues related to cannabis use, including studying the effectiveness of the packaging and labeling requirements and advertising and marketing restrictions contained in the act at preventing underage access to and use of cannabis and cannabis products, and studying the health-related effects among users of varying potency levels of cannabis and cannabis products.

(4) Cannabis use rates, maladaptive use rates for adults and youth, and diagnosis rates of cannabis-related substance use disorders.

(5) Cannabis market prices, illicit market prices, tax structures and rates, including an evaluation of how to best tax cannabis based on potency, and the structure and function of licensed cannabis businesses.

(6) Whether additional protections are needed to prevent unlawful monopolies or anti-competitive behavior from occurring in the adult-use cannabis industry and, if so, recommendations as to the most effective measures for preventing such behavior.

(7) The economic impacts in the private and public sectors, including, but not necessarily limited to, job creation, workplace safety, revenues, taxes generated for state and local budgets, and criminal justice impacts, including, but not necessarily limited to, impacts on law enforcement and public resources, short and long term consequences of involvement in the criminal justice system, and state and local government agency administrative costs and revenue.

(8) Whether the regulatory agencies tasked with implementing and enforcing the Control, Regulate and Tax Adult Use of Marijuana Act are doing so consistent with the purposes of the act, and whether different agencies might do so more effectively.

(9) Environmental issues related to cannabis production and the criminal prohibition of cannabis production.

(10) The geographic location, structure, and function of licensed cannabis businesses, and demographic data, including race, ethnicity, and gender, of license holders.

(11) The outcomes achieved by the changes in criminal penalties made under the Control, Regulate and Tax Adult Use of Marijuana Act for cannabis-related offenses, and the outcomes of the juvenile justice system, in particular, probation-based treatments and the frequency of up-charging illegal possession of cannabis or cannabis products to a more serious offense.

(c) The Controller shall next disburse the sum of three million dollars ($3,000,000) annually to the Department of the California Highway Patrol beginning with the 2018–19 fiscal year until the 2022–23 fiscal year to establish and adopt protocols to determine whether a driver is operating a vehicle while impaired, including impairment by the use of cannabis or cannabis products, and to establish and adopt protocols setting forth best practices to assist law enforcement agencies. The department may hire personnel to establish the protocols specified in this subdivision. In addition, the department may make grants to public and private research institutions for the purpose of developing technology for determining when a driver is operating a vehicle while impaired, including impairment by the use of cannabis or cannabis products.

(d) The Controller shall next disburse the sum of ten million dollars ($10,000,000) beginning with the 2018–19 fiscal year and increasing ten million dollars ($10,000,000) each fiscal year thereafter until the 2022–23 fiscal year, at which time the disbursement shall be fifty million dollars ($50,000,000) each year thereafter, to the Governor’s Office of Business and Economic Development, in consultation with the Labor and Workforce Development Agency and the State Department of Social Services, to administer a community reinvestments grants program to local health departments and at least 50 percent to qualified community-based nonprofit organizations to support job placement, mental health treatment, substance use disorder treatment, system navigation services, legal services to address barriers to reentry, and linkages to medical care for communities disproportionately affected by past federal and state drug policies. The office shall solicit input from community-based job skills, job placement, and legal service providers with relevant expertise as to the administration of the grants program. In addition, the office shall periodically evaluate the programs it is funding to determine the effectiveness of the programs, shall not spend more than 4 percent for administrative costs related to implementation, evaluation, and oversight of the programs, and shall award grants annually, beginning no later than January 1, 2020.

(e) The Controller shall next disburse the sum of two million dollars ($2,000,000) annually to the University of California San Diego Center for Medicinal Cannabis Research to further the objectives of the center, including the enhanced understanding of the efficacy and adverse effects of cannabis as a pharmacological agent.

(f) By July 15 of each fiscal year beginning in the 2018–19 fiscal year, the Controller shall, after disbursing funds pursuant to subdivisions (a), (b), (c), (d), and (e), disburse funds deposited in the Tax Fund during the prior fiscal year into sub-trust accounts, which are hereby created, as follows:

(1) Sixty percent shall be deposited in the Youth Education, Prevention, Early Intervention and Treatment Account, and disbursed by the Controller to the State Department of Health Care Services for programs for youth that are designed to educate about and to prevent substance use disorders and to prevent harm from substance use. The State Department of Health Care Services shall enter into interagency agreements with the State Department of Public Health and the State Department of Education to implement and administer these programs. The programs shall emphasize accurate education, effective prevention, early intervention, school retention, and timely treatment services for youth, their families and caregivers. The programs may include, but are not limited to, the following components:

(A) Prevention and early intervention services including outreach, risk survey and education to youth, families, caregivers, schools, primary care health providers, behavioral health and substance use disorder service providers, community and faith-based organizations, fostercare providers, juvenile and family courts, and others to recognize and reduce risks related to substance use, and the early signs of problematic use and of substance use disorders.

(B) Grants to schools to develop and support student assistance programs, or other similar programs, designed to prevent and reduce substance use, and improve school retention and performance, by supporting students who are at risk of dropping out of school and promoting alternatives to suspension or expulsion that focus on school retention, remediation, and professional care. Schools with higher than average dropout rates should be prioritized for grants.

(C) Grants to programs for outreach, education, and treatment for homeless youth and out-of-school youth with substance use disorders.

(D) Access and linkage to care provided by county behavioral health programs for youth, and their families and caregivers, who have a substance use disorder or who are at risk for developing a substance use disorder.

(E) Youth-focused substance use disorder treatment programs that are culturally and gender competent, trauma-informed, evidence-based and provide a continuum of care that includes screening and assessment (substance use disorder as well as mental health), early intervention, active treatment, family involvement, case management, overdose prevention, prevention of communicable diseases related to substance use, relapse management for substance use and other cooccurring behavioral health disorders, vocational services, literacy services, parenting classes, family therapy and counseling services, medication-assisted treatments, psychiatric medication and psychotherapy. When indicated, referrals must be made to other providers.

(F) To the extent permitted by law and where indicated, interventions shall utilize a two-generation approach to addressing substance use disorders with the capacity to treat youth and adults together. This would include supporting the development of family-based interventions that address substance use disorders and related problems within the context of families, including parents, foster parents, caregivers and all their children.

(G) Programs to assist individuals, as well as families and friends of drug using young people, to reduce the stigma associated with substance use including being diagnosed with a substance use disorder or seeking substance use disorder services. This includes peer-run outreach and education to reduce stigma, anti-stigma campaigns, and community recovery networks.

(H) Workforce training and wage structures that increase the hiring pool of behavioral health staff with substance use disorder prevention and treatment expertise. Provide ongoing education and coaching that increases substance use treatment providers’ core competencies and trains providers on promising and evidenced-based practices.

(I) Construction of community-based youth treatment facilities.

(J) The departments may contract with each county behavioral health program for the provision of services.

(K) Funds shall be allocated to counties based on demonstrated need, including the number of youth in the county, the prevalence of substance use disorders among adults, and confirmed through statistical data, validated assessments, or submitted reports prepared by the applicable county to demonstrate and validate need.

(L) The departments shall periodically evaluate the programs they are funding to determine the effectiveness of the programs.

(M) The departments may use up to 4 percent of the moneys allocated to the Youth Education, Prevention, Early Intervention and Treatment Account for administrative costs related to implementation, evaluation, and oversight of the programs.

(N) If the Department of Finance ever determines that funding pursuant to cannabis taxation exceeds demand for youth prevention and treatment services in the state, the departments shall provide a plan to the Department of Finance to provide treatment services to adults as well as youth using these funds.

(O) The departments shall solicit input from volunteer health organizations, physicians who treat addiction, treatment researchers, family therapy and counseling providers, and professional education associations with relevant expertise as to the administration of any grants made pursuant to this paragraph.

(2) Twenty percent shall be deposited in the Environmental Restoration and Protection Account, and disbursed by the Controller as follows:

(A) To the Department of Fish and Wildlife and the Department of Parks and Recreation for the cleanup, remediation, and restoration of environmental damage in watersheds affected by cannabis cultivation and related activities including, but not limited to, damage that occurred prior to enactment of this part, and to support local partnerships for this purpose. The Department of Fish and Wildlife and the Department of Parks and Recreation may distribute a portion of the funds they receive from the Environmental Restoration and Protection Account through grants for purposes specified in this paragraph.

(B) To the Department of Fish and Wildlife and the Department of Parks and Recreation for the stewardship and operation of state-owned wildlife habitat areas and state park units in a manner that discourages and prevents the illegal cultivation, production, sale, and use of cannabis and cannabis products on public lands, and to facilitate the investigation, enforcement, and prosecution of illegal cultivation, production, sale, and use of cannabis or cannabis products on public lands.

(C) To the Department of Fish and Wildlife to assist in funding the watershed enforcement program and multiagency taskforce established pursuant to Fish & Game Code § 12029(b) & (c) to facilitate the investigation, enforcement, and prosecution of these offenses and to ensure the reduction of adverse impacts of cannabis cultivation, production, sale, and use on fish and wildlife habitats throughout the state.

(D) For purposes of this paragraph, the Secretary of the Natural Resources Agency shall determine the allocation of revenues between the departments. During the first five years of implementation, first consideration should be given to funding purposes specified in subparagraph (A).

(E) Funds allocated pursuant to this paragraph shall be used to increase and enhance activities described in subparagraphs (A), (B), and (C), and not replace allocation of other funding for these purposes. Accordingly, annual General Fund appropriations to the Department of Fish and Wildlife and the Department of Parks and Recreation shall not be reduced below the levels provided in the Budget Act of 2014 (Chapter 25 of the Statutes of 2014).

(3) Twenty percent shall be deposited into the State and Local Government Law Enforcement Account and disbursed by the Controller as follows:

(A) To the Department of the California Highway Patrol for conducting training programs for detecting, testing and enforcing laws against driving under the influence of alcohol and other drugs, including driving under the influence of cannabis. The department may hire personnel to conduct the training programs specified in this subparagraph.

(B) To the Department of the California Highway Patrol to fund internal California Highway Patrol programs and grants to qualified nonprofit organizations and local governments for education, prevention, and enforcement of laws related to driving under the influence of alcohol and other drugs, including cannabis; programs that help enforce traffic laws, educate the public in traffic safety, provide varied and effective means of reducing fatalities, injuries, and economic losses from collisions; and for the purchase of equipment related to enforcement of laws related to driving under the influence of alcohol and other drugs, including cannabis.

(C) To the Board of State and Community Corrections for making grants to local governments to assist with law enforcement, fire protection, or other local programs addressing public health and safety associated with the implementation of the Control, Regulate and Tax Adult Use of Marijuana Act. The board shall not make any grants to local governments which have banned the cultivation, including personal cultivation under H&S Code § 11362.2(b)(3), or retail sale of cannabis or cannabis products pursuant to B&P Code § 26200 or as otherwise provided by law.

(D) For purposes of this paragraph, the Department of Finance shall determine the allocation of revenues between the agencies; provided, however, beginning in the 2022–23 fiscal year the amount allocated pursuant to subparagraph (A) shall not be less than ten million dollars ($10,000,000) annually and the amount allocated pursuant to subparagraph (B) shall not be less than forty million dollars ($40,000,000) annually. In determining the amount to be allocated before the 2022–23 fiscal year pursuant to this paragraph, the Department of Finance shall give initial priority to subparagraph (A).

(g) Funds allocated pursuant to subdivision (f) shall be used to increase the funding of programs and purposes identified and shall not be used to replace allocation of other funding for these purposes.

(h) Effective July 1, 2028, the Legislature may amend this section by majority vote to further the purposes of the Control, Regulate and Tax Adult Use of Marijuana Act, including allocating funds to programs other than those specified in subdivisions (d) and (f). Any revisions pursuant to this subdivision shall not result in a reduction of funds to accounts established pursuant to subdivisions (d) and (f) in any subsequent year from the amount allocated to each account in the 2027–28 fiscal year. Prior to July 1, 2028, the Legislature may not change the allocations to programs specified in subdivisions (d) and (f).

Rev. & Tax. Code § 34021.5 (Amended; Effective June 27, 2017): Authorization for County Taxes:

(a)

(1) A county may impose a tax on the privilege of cultivating, manufacturing, producing, processing, preparing, storing, providing, donating, selling, or distributing cannabis or cannabis products by a licensee operating under B&P Code §§ 26000 et seq. (Division 10).

(2) The board of supervisors shall specify in the ordinance proposing the tax, the activities subject to the tax, the applicable rate or rates, the method of apportionment, if necessary, and the manner of collection of the tax. The tax may be imposed for general governmental purposes or for purposes specified in the ordinance by the board of supervisors.

(3) In addition to any other method of collection authorized by law, the board of supervisors may provide for the collection of the tax imposed pursuant to this section in the same manner, and subject to the same penalties and priority of lien, as other charges and taxes fixed and collected by the county. A tax imposed pursuant to this section is a tax and not a fee or special assessment. The board of supervisors shall specify whether the tax applies throughout the entire county or within the unincorporated area of the county.

(4) The tax authorized by this section may be imposed upon any or all of the activities set forth in paragraph (1), as specified in the ordinance, regardless of whether the activity is undertaken individually, collectively, or cooperatively, and regardless of whether the activity is for compensation or gratuitous, as determined by the board of supervisors.

(b) A tax imposed pursuant to this section shall be subject to applicable voter approval requirements imposed by law.

(c) This section is declaratory of existing law and does not limit or prohibit the levy or collection of any other fee, charge, or tax, or a license or service fee or charge upon, or related to, the activities set forth in subdivision (a) as otherwise provided by law. This section shall not be construed as a limitation upon the taxing authority of a county as provided by law.

(d) This section shall not be construed to authorize a county to impose a sales or use tax in addition to the sales and use taxes imposed under an ordinance conforming to the provisions Rev. & Tax. Code §§ 7202 and 7203.

Veh. Code § 2429.7 (Amended; Effective June 27, 2017): Impaired Driving Task Force:

(a) The commissioner shall appoint an impaired driving task force to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of impaired driving, including driving under the influence of cannabis and controlled substances. The task force shall also examine the use of technology, including field testing technologies and validated field sobriety tests, to identify drivers under the influence of prescription drugs, cannabis, and controlled substances. The task force shall include, but is not limited to, the commissioner, who shall serve as chairperson, and at least one member from each of the following:

(1) The Office of Traffic Safety.

(2) The National Highway Traffic Safety Administration.

(3) Local law enforcement.

(4) District attorneys.

(5) Public defenders.

(6) California Association of Crime Laboratory Directors.

(7) California Attorneys for Criminal Justice.

(8) The California Cannabis Research Program, known as the Center for Medicinal Cannabis Research, authorized pursuant to H&S Code § 11362.9.

(9) An organization that represents medicinal cannabis patients.

(10) Licensed physicians with expertise in substance abuse disorder treatment.

(11) Researchers with expertise in identifying impairment caused by prescription medications and controlled substances.

(12) Nongovernmental organizations committed to social justice issues.

(13) A nongovernmental organization that focuses on improving roadway safety.

(b) The members of the task force shall serve at the pleasure of the commissioner and without compensation.

(c) The task force members shall be free of economic relationships with any company that profits from the sale of technologies or equipment that is intended to identify impairment. Members and their organizations shall not receive pay from, grants from, or any form of financial support from companies or entities that sell such technologies or equipment.

(d) The task force shall make recommendations regarding prevention of impaired driving, means of identifying impaired driving, and responses to impaired driving that reduce reoccurrence, including, but not limited to, evidence-based approaches that do not rely on incarceration.

(e) The task force shall make recommendations regarding how to best capture data to evaluate the impact that cannabis legalization is having on roadway safety.

(f) By January 1, 2021, the task force shall report to the Legislature its policy recommendations and the steps state agencies are taking regarding impaired driving. The report shall be submitted in compliance with Gov’t. Code § 9795.

Veh. Code § 23220 (Amended; Effective January 1, 2018): Using Marijuana While Driving or While In a Motor Vehicle on Private Lands:

(a) A person shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle on any lands described in subdivision (c).

(b) A person shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while riding as a passenger in any motor vehicle being driven on any lands described in subdivision (c).

(c) As used in this section, “lands” means those lands to which the Chappie-Z’berg Off-Highway Motor Vehicle Law of 1971 (V.C. §§ 38000 et seq.; Division 16.5) applies as to off-highway motor vehicles, as described in V.C. § 38001.

(d) A violation of subdivision (a) or (b) shall be punished as an infraction.

Note: Per V.C. § 38001, this section is limited to “off-highway motor vehicles” as defined in V.C. § 38006 and to “lands, other than a highway, that are open and accessible to the public, including any land acquired, developed, operated, or maintained, in whole or in part, with money from the Off–Highway Vehicle Trust Fund, except private lands under the immediate control of the owner or his or her agent where permission is required and has been granted to operate a motor vehicle. For purposes of this division, the term “highway” does not include fire trails, logging roads, service roads regardless of surface composition, or other roughly graded trails and roads upon which vehicular travel by the public is permitted.”

Per V.C. § 38006: As used in this division, an “off–highway motor vehicle” is any of the following:

(a) A motor vehicle subject to the provisions of V.C. § 38010(a).

(b) A motor vehicle registered under V.C. § 4000, when such motor vehicle is operated on land to which this division has application.

(c) A motor vehicle owned or operated by a nonresident of this state, whether or not such motor vehicle is identified or registered in a foreign jurisdiction, when such motor vehicle is operated on lands to which this division has application.

V.C. § 38010(a) makes reference to “every motor vehicle specified in (V.C. §) 38012 that is not registered under this code because it is to be operated or used exclusively off the highways, except as provided in this division, . . .”

And per V.C. § 38012(b): As used in this division, “off-highway motor vehicle” includes, but is not limited to, the following:

(1) A motorcycle or motor-driven cycle, except for any motorcycle that is eligible for a special transportation identification device issued pursuant to V.C. § 38088.

(2) A snowmobile or other vehicle designed to travel over snow or ice, as defined in V.C. § 557.

(3) A motor vehicle commonly referred to as a sand buggy, dune buggy, or all-terrain vehicle.

(4) A motor vehicle commonly referred to as a jeep.

(5) A recreational off-highway vehicle as defined in V.C. § 500.

Veh. Code § 23221 (Amended; Effective January 1, 2018): Using Marijuana While Driving or While In a Motor Vehicle on a Highway:

(a) A driver shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle upon a highway.

(b) A passenger shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while in a motor vehicle being driven upon a highway.

(c) A violation of this section shall be punished as an infraction.

Veh. Code § 23222 (Amended; Effective June 27, 2017): Open Containers in a Vehicle, Including an Open Receptacle of, or Loose Cannabis:

(a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in V.C. § 23220(b), any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.

(b)

(1) Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in V.C. § 23220(b), any receptacle containing any cannabis or cannabis products, as defined by H&S Code § 11018.1, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

(2) Paragraph (1) does not apply to a person who has a receptacle containing cannabis or cannabis products that has been opened, has a seal broken, or the contents of which have been partially removed, or to a person who has loose cannabis flower not in a container, if the receptacle or loose cannabis flower not in a container is in the trunk of the vehicle.

(c) Subdivision (b) does not apply to a qualified patient or person with an identification card, as defined in H&S § 11362.7, if both of the following apply:

(1) The person is carrying a current identification card or a physician’s recommendation.

(2) The cannabis or cannabis product is contained in a container or receptacle that is either sealed, resealed, or closed.

Law Enforcement Procedures:

A law enforcement officer has the legal right to detain and question a person for that period of time that is reasonably necessary to determine whether the marijuana is in fact possessed for medical purposes. (See People v. Mower (2002) 28 Cal.4th 457.) When a person is found in possession of marijuana, inquiry should be made early in the contact to determine whether the marijuana is possessed for medical purposes.

The San Diego District Attorney’s Office has developed questionnaires which may be used to aid in this determination. (See below)

If the person detained denies any medical need, or that he or she is the “primary caregiver” for someone with a medical need, this fact should be recorded in any resulting arrest report or citation.

Such early inquiry will help to foreclose a belated, falsified claim that the marijuana is for medicinal purposes. (See People v. Rigo (1999) 69 Cal.App.4th 409; and People v. Galambos (2002) 104 Cal.App.4th 1147; defense does not extend to a doctor’s ratification of self-medication after the arrest.)

“(T)he Attorney General’s 2008 Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (Guidelines) direct that police officers “should use their sound professional judgment to assess the validity of the person's medical-use claim” based on the totality of the circumstances, including the quantity of marijuana present and the presence of weapons.” (Littlefield v. County of Humboldt (2013) 218 Cal. App. 4th 243, 253.)

An officer’s probable cause to believe that a person is in illegal possession of marijuana is not diminished just because the person produces a medical marijuana identification card or a physician’s authorization. (People v. Strasburg (2007) 148 Cal.App.4th 1052; defendant lawfully detained and his car lawfully searched despite producing a doctor’s authorization to use marijuana for medical purposes.)

See also People v. Waxler (2014) 224 Cal.App.4th 712, 718-725; holding that the odor of marijuana in a vehicle, with the plain sight observation of a marijuana pipe with what appeared to be a small amount of marijuana in the bowl, supplied probable cause to conduct a warrantless search of the vehicle. The fact that possession of less than an ounce of marijuana is an infraction, or that the defendant has a marijuana card, is irrelevant.

Defendant was the driver of a vehicle that was following another vehicle. Officers determined that the owner of the lead vehicle had an outstanding warrant for his arrest. Sheriff’s Deputies activated their emergency lights just as both vehicles were in the process of parking. Defendant’s vehicle was caught between the officers and the lead vehicle. The Court held that defendant was necessarily detained by this action, per Brown, even though there was no cause to believe that he was involved in any criminal activity. Officer safety considerations justified contacting defendant before proceeding to the lead vehicle. The odor of marijuana and plain sight observations of marijuana in the car lawfully lead to a search of the car and discovery of more contraband. (People v. Steele (2016) 246 Cal.App.4th 1110, 1115-1120.)

Odor of marijuana smoke during a traffic stop justified the search of a vehicle. (People v. Lovejoy (1970) 12 Cal.App.3rd 883, 887.)

The “strong odor of fresh marijuana” on defendant’s person was held to be probable cause to believe defendant was in possession of the marijuana. (People v. Gale (1973) 9 Cal.3rd 788, 793, fn. 4.)

The odor of marijuana emanating from two trucks at a private airstrip, under circumstances consistent with smuggling operations, was found to constitute probable cause to believe the trucks contained marijuana. (United States v. Johns (1985) 469 U.S. 478 [83 L.Ed.2nd 890].)

It was not error for the federal district court to deny defendant’s motion to suppress evidence retrieved from his car because the prolonged stop following a routine traffic stop was justified by the smell of marijuana along with the credible testimony by the police officer. The odor alone was sufficient to establish probable cause to search the automobile and its contents. (United States v. Smith (8th Cir. 2015) 789 F.3rd 923.)

“(T)he smell of burnt marijuana alone establishes probable cause to search a vehicle for the illegal substance.” (United States v. Snyder (10th Cir. 2015) 793 F.3rd 1241.)

The search of defendant’s vehicle was upheld when based upon probable cause to believe defendant was illegally transporting marijuana, the necessary probable cause being supplied by a trained and experienced officers recognition of the odor of fresh and burnt marijuana coming from his vehicle. (United States v. Johnson (9th Cir. 2019) 913 F.3rd 793, 801-802.)

Note: The officer had also observed some empty plastic bags in defendant’s glove compartment, but did not include this plain sight observation as a necessary element in establishing probable cause to search defendant’s car.

If the subject detained indicates that the marijuana in question is possessed for medicinal purposes, and the above referenced District Attorney questionnaire is not available, the deputy or officer, at a minimum, should determine the following:

Is the person detained the patient or a primary caregiver?

If the person claims to be the primary caregiver, determine the following:

a. Who is the patient? (Name, address, phone number, illness, etc.; facts which should be verified as soon as practical.)

b. What is the detainee's relationship with the patient qualifying him or her as a primary caregiver? Seek as many details as possible. (E.g., for how long, under what circumstances, duties and responsibilities toward the patient, where is the marijuana obtained, is it grown by the person, etc.)

c. What is the nature and extent of the patient's illness, and the details of the patient's consumption?

d. Who is the authorizing physician, if known?

e. What is the detained person doing with the marijuana at that time? (E.g., growing it, transporting it to the patient, etc.)

If the person claims to be the patient, determine the following:

a. What is the detainee's illness for which marijuana gives relief, and how “seriously ill” the person claims to be?

b. What is the name, address, phone number, etc., of the physician authorizing the use of marijuana? (Again, facts that should be verified as soon as practical.)

c. Is the physician's authorization in writing? (If so, obtain a copy before releasing the subject.)

d. When and how was the physician’s authorization obtained? Did the physician conduct a physical examination? When, where, and what was the result?

e. Determine the details of the person’s use? (E.g., frequency, method of ingestion, etc.)

Whether or not the person detained claims the benefits of section 11362.5, the deputy or officer should note and record the following:

The quantity and packaging of the marijuana. Any more than what qualifies as “personal use” indicates a commercial purpose and, as such, is still illegal. (See below)

The presence of cash, pay/owe documents, or other evidence of the possible sales or other commercial use of the marijuana.

The presence of weapons, scanners, or the use of evasive tactics or other conduct associated with unlawful drug activity.

The criminal history of the individual, particularly if related to drug activity.

Activity by the person indicating a consciousness of guilt (e.g., flight, nervousness, untruthfulness, etc.).

The experience and expertise of the deputy or officer.

The nature and consistency of the statements made by the person detained and questioned.

Any other observed circumstances indicating trafficking, or other evidence which might disprove (or substantiate) the person’s claim of a medical necessity.

The Attending Physician: If the detained person identifies a physician who is alleged to have provided the required authorization, and that physician is available, he or she should be interviewed concerning whether such “recommendation or approval” has in fact been provided to the detained person or to someone for whom the detained person is the primary caregiver, whether or not that authorization is in writing, and any other available details.

Miscellaneous:

If the detained person refuses to provide information needed to determine whether he or she is entitled to the benefits of this defense, such refusal should be noted and the subject processed as with any other arrest or citation.

Also, whether or not the person comes within the protections of the statute, he or she is still subject to other statutory restrictions, such as being drunk in public or driving while under the influence of the marijuana.

Note also that the case law has determined that section 11362.5 does not provide a defense to the “transportation” of marijuana in violation of H&S § 11360(a). (People v. Young (2001 92 Cal.App.4th 229.)

However, some courts have expressed some judicial sympathy for the argument that the transporting of a personal amount of marijuana by the patient or primary caregiver should be impliedly lawful as well. (People v. Trippet (1997) 56 Cal.App.4th 1532.)

The test should be whether the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs. (People v. Trippet, supra, at pp. 1550-1551; People v. Wayman (2010) 189 Cal.App.4th 215, 219-223.)

See also H&S § 11362.71(e), providing protection from arrest and prosecution for the “possession, transportation, delivery, or cultivation of medical marijuana” for a “primary caregiver” who is “in possession of a valid identification card” absent cause to believe the identification card is “false or falsified” or “obtained by means of fraud,” or the suspect is otherwise in violation of the provisions of these sections. (See above)

This provision has been held to be retroactive, allowing for such an affirmative defense in cases pending at the time of the enactment of H&S §§ 11362.7 et seq.; 1/1/04. (People v. Wright (2006) 40 Cal.4th 81.)

The Fifth District Court of Appeal (Fresno) concluded that the provision in a county ordinance that classified the cultivation of medical marijuana as a misdemeanor is preempted by California’s extensive statutory scheme addressing crimes, defenses and immunities relating to marijuana. Among other things, the attempt to criminalize possession and cultivation was not consistent with H&S § 11362.71(e), imposing on local officials the obligation of not arresting certain persons possessing or cultivating marijuana. Therefore, the Court held that the plaintiff stated a narrow cause of action challenging the validity of the criminalization provision. (Kirby v. County of Fresno ((2015) 242 Cal.App.4th 940.)

Also, effective 1/1/2016; “This section (i.e., H&S § 11360) does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.”

It is also clear under the terms of the statute that the defense does not include cases involving the sales (H&S § 11360(a)), or possession for purposes of sale (H&S § 11359), of marijuana. (See People v. Wright, supra.)

Generally, local charging policies provide that in order for the possession of marijuana to be considered “personal,” as opposed to possessing the substance for purposes of sale, the amount of marijuana must be less than one half (½) of a pound (227 grams), contained in five (5) or fewer packages, without additional evidence relating to possession for sale (e.g., packaging, scales, price lists, etc.).

These amounts will vary depending upon local polices. When in doubt, an arresting deputy or officer should consult with a law enforcement narcotics expert and/or the local prosecutor’s office.

See H&S § 11362.77(a), above, allowing the following amounts for a “qualified patient” or primary caregiver:

No more than eight (8) ounces of dried marijuana per qualified patient, and
No more than six (6) mature or twelve (12) immature marijuana plants per qualified patient.

Exceptions:

(b) With a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, then the qualified patient and/or primary caregiver may possess an amount consistent with the patient’s needs.

(c) Counties and cities may allow for higher limits.

1. Only the dried mature processed flowers of the female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana.

Note: This particular section was held to have been enacted by the Legislature in violation of the California Constitution as an attempt to amend an initiative, which, pursuant to Cal. Const. art. II, § 10, subd.(c), the Legislature cannot do. (People v. Kelly (2010) 47 Cal.4th 1008.)

H&S § 11018 provides a broader definition of “marijuana” (now “cannabis”) than is described under subd. (d) of section 11362.77, defining marijuana as including all parts of the plant, with some exceptions such as the stalks and certain types of seed derivatives. The more restrictive definition as provided under Subd. (d) applies only when the defendant attempts to take advantage of the “safe harbor” provisions of the Medical Marijuana Program Act [38] that allow patients who suffer from serious medical conditions to voluntarily obtain medical marijuana identification cards which provide them protection from arrest. (People v. Orlosky (2015) 233 Cal.App.4th 257, 276-278.)

The simple possession of less than an ounce of marijuana (H&S § 11357(b)) is necessarily a lesser included offense of possession of marijuana for purposes of sale (H&S § 11359). In a prosecution for the latter, a jury must also be instructed as to the former even though when standing by itself, the defendant would not have been entitled to a jury trial. Failure to do so is prejudicial error where the evidence supports a finding of the simple possession of marijuana. (People v. Walker (2015) 245 Cal.App.4th 879.)

Proposition 64 also added H&S Code § 11361.8, which allows a “person currently serving a sentence for a conviction” of H&S Code § 11359 (and other marijuana-related crimes) to petition the trial court to recall the person’s sentence and resentence the person in accordance with the amended statute. (H&S Code § 11361.8(a))

A marijuana dispensary may be declared a nuisance and prohibited by a city by injunction. A moratorium on such a business is not prohibited by either the Compassionate Use Act (“CUA”) or the. (City of Claremont v. Kruse (2009) 177 Cal.App.4th Medical Marijuana Program Act (“MMPA”)1153; Urgent Care Medical Services v. City of Pasadena (Mar. 5, 2018) __ Cal.App.5th __, __ [2018 Cal. App. LEXIS 272]

Not decided was the corresponding issue of whether state law preempts local ordinances which attempt to completely ban marijuana dispensaries within a city’s or county’s boundaries.

If the deputy or officer determines that the subject does in fact appear to come within the protections of section 11362.5, the marijuana should be returned to the person and he or she should be released. However, a sample of the marijuana should still be confiscated and impounded with the remainder of the substance weighed and photographed and a complete report prepared for review by the District Attorney's Office.

Note: This recommendation is based upon a memorandum issued by the Attorney General. As of the present date, the Attorney General continues to recommend that “arrests and seizures (when Proposition 215 appears to apply) . . . should be avoided . . . .” (AG Bulletin, dated June 22, 2005) Local department policies, however, may dictate otherwise, sometimes requiring the confiscation of all marijuana pending further disposition. In light of authority holding that the Compassionate Use Act does no more than provide a marijuana-user with a potential affirmative defense, it cannot be said that such polices are improper or illegal.

An exception to the suggestion that marijuana be returned to the suspect is when acting pursuant to a search warrant. Case law has dictated that execution of a search warrant, as a court order, must be completed despite the suspect’s claims, whether or not valid, of a medical necessity. (People v. Fisher (2002) 96 Cal.App.4th 1147.)

If it is determined that the person detained does not qualify as a patient or primary caregiver, the subject should be arrested or cited and the marijuana impounded as evidence.

In either case, the arresting or detaining deputy or officer must verify as many of the subject's claims as is practical under the circumstances, recognizing the potential for persons in illegal possession of marijuana to manufacture a medical necessity defense after the fact.

In those cases where the marijuana is determined to be possessed in accordance with state law, the court has the authority (despite the contrary federal law) to order the law enforcement agency to return any confiscated marijuana to the person. (City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355.)

“A controlled substance is ‘lawfully possessed’ under this section if it is lawfully possessed under California law.” (pgs. 4-5, citing City of Garden Grove v. Superior Court [Kha] (2007) 157 Cal.App.4th 355, 380.)

In fact, taking or destroying a person’s lawful medical marijuana may provide the patient with a cause of action in civil court for the unlawful taking. (County of Butte v. Superior Court [Williams] (2009) 175 Cal.App.4th 729.)

In order to testify in court as an expert on the issue of whether a person who claims that the has the authorization of a physician to possess and use medical marijuana is in fact a marijuana dealer, it must be proved that the officer has sufficient experience and expertise in the different characteristics between a person using marijuana under the Compassionate Use Act and one who is in possession of the marijuana for purposes of sale. (People v. Chakos (2007) 158 Cal.App.4th 357.)

The issue of whether the officer was or wasn’t properly qualified as an expert in that he did not testify to having had sufficient experience in the lawful use of medical marijuana was forfeited because the defendant did not object to the officer’s qualifications when he testified at trial. The Court held, however, that even on the merits, despite this insufficiency, there was enough other evidence to sustain defendant’s conviction. (People v. Dowl (2013) 57 Cal.4th 1079, 1083-1089.)

The Compassionate Use Act of 1996 does not provide medical marijuana users with protection under the Fair Employment and Housing Act. Marijuana usage, even when authorized by a physician and needed for various ailments, does not prevent an employer from refusing to hire, or to fire, an employee who seeks to use marijuana. (Ross v. RagingWire (2008) 42 Cal.4th 920; Loder v. City of Glendale (1997) 14 Cal.4th 846.)

Execution of a Search Warrant (as summarized from “Investigating and Prosecuting Medical-Marijuana Cases,” by Phillip R. Urie, Deputy District Attorney, San Joaquin County: “Prosecutor’s Brief,” Vol. XXVI, No. 2, California District Attorney’s Association):

After receiving information of marijuana possession and/or cultivation by a particular suspect or suspects, and/or at a particular residence or business, an investigation should be conducted seeking evidence of sales or possession for sales before seeking a search warrant.

Develop “probable cause” of sales or possession for sales by collecting evidence of (including, but not limited to):

Unusual odors.
Excessive security.
Covered windows.
Venting from inside.
Excessive air conditioning.
Excessive heat.
Unusual power or water configurations.
Excessive utility consumption.
No one living in a suspect residence.
Carbon-dioxide tanks.
Generators.
Large amounts of gardening supplies.

Interview neighbors, seeking their observations and/or suspicions as to activity at the suspect residence/business.

Consider conducting a “knock and talk,” asking about a resident’s suspected illegal activity.

Conduct a period of surveillance, watching for suspicious traffic patterns and excessive visitors, including at odd hours.

Identify the residents and check their respective criminal histories.

Investigate the residents’ financial history, employment situation and banking and shopping patterns.

Contact and/or identify visitors, checking for prior and present narcotics violations.

Seek information from informants.

Consider conducting a “controlled buy.”

Executing the warrant:

Upon finding a “marijuana grow,” the entire grow must be photographed and, if possible, videotaped in operation.

Use of a ruler or other object of identifiable size should be included in at least some of the photographs or video to visually establish the size of the plants.

The stems of several plants, showing the first set of leaves on the stem, should be photographed to document whether the plants are clones or grown from seeds.

Timer settings on nutrient and lighting systems should be recorded.

All plants should be counted and photographed, no matter how small.

Any obvious pest infestations should be noted, as well as the lack of pests.

Pesticides and nutrients on hand should be photographed and seized.

Work areas should be photographed in detail, showing tools and any plants, in close-ups.

The entire “grow” should be diagramed, showing relative positions and measurements.

Note and seize any traditional indications of a commercial enterprise and sales.

In the absence of sufficient evidence to establish an illegal cultivation and/or possession for sales case, dismantling a marijuana grow is NOT recommended. Put evidence tags on the plants that are there, take pictures, and seize samples only, for submission to a prosecutor’s office for evaluation.

The samples should, at a minimum, be a leaf from each group of plants in different stages of growth.

The sources of the samples taken should be carefully documented by photographs as well as in a written report.

Seize a copy of a suspect’s medical marijuana recommendation from a physician.

Interview the suspect as to his physical condition or ailments requiring the use of marijuana, as well as the frequency of his usage and the method used for ingestion (e.g., smoking as opposed to cooking it into his food).

If, after review, charges are filed by a district attorney, a new search warrant should be obtained to seize the rest of the evidence.

Asset Forfeiture Proceedings:

Whether or not seized lawfully, the government may institute assent forfeiture proceedings against monies or other property seized so long as it can demonstrate probable cause, based upon untainted evidence, that the monies or other items are the product of the defendant’s illegal activities. (United States v. One (1) 1971 Harley Davidson Motorcycle serial #4A25791H1 (9th Cir. 1974) 508 F.2nd 351; United States v. $493,850.00 in U.S. Currency (9th Cir. 2008) 518 F.3rd 1159, 1169; United States v. $186,416.00 in U.S. Currency (9th Cir. 2010) 590 F.3rd 942, 948-949.)

A city has standing under the United States Constitution, Article III, to contest a forfeiture action brought by the federal government against real property used to operate a retail marijuana store in that the city potentially will lose tax revenue. However, the Administrative Procedure Act does not provide a basis for the city to bring a collateral action to enjoin the forfeiture proceedings. The U.S. Government’s decision to file the forfeiture action is committed to agency discretion, and the city’s suit is impliedly forbidden by the existence of the forfeiture statute, 21 U.S.C. § 881. The fact that the city was unable to participate in the forfeiture action because it did not possess an interest in the property is irrelevant, as Congress created a framework permitting only certain parties to bring claims. (City of Oakland v. Lynch (9th Cir. 2015) 798 F.3rd 1159.)

A person may be convicted of money laundering under H&S Code § 11370.9 despite the fact that he acquired the money in question by unlawfully selling the marijuana himself. (People v. Bush (2017) 7 Cal.App.5th 457, 479-482.)

Federal Law:

General Rule:

The cultivation or possession of marijuana for medicinal purposes, although maybe lawful under California law, is still in violation of federal law. (United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483; finding no “medical-necessity defense” under federal law for the sales of marijuana; and see United States v. McIntosh (9th Cir. 2016) 833 F.3rd 1163, 1179, fn. 5; and United States v. Kleinman (9th Cir. 2017) 859 F.3rd 825, 831.)

See 21 U.S.C. § 3801(4), noting that “local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.” This, arguably, includes “medicinal marijuana.” (See United States v. Visman (9th Cir. 1990) 919 F.2nd 1390.)

The issue of whether persons qualifying for lawful possession and cultivation of marijuana under California’s Compassionate Use Act are protected from arrest and prosecution for violating federal marijuana prohibitions was decided by the United States Supreme Court in Gonzales v. Raich (2005) 545 U.S. 1[162 L.Ed.2nd 1] with a resounding “No.” Ruling that the U.S. Constitution’s “Commerce Clause” allows for the federal regulation of marijuana cultivation and use, even when done by individuals for their own medical reasons, the Supreme Court found that federal drug laws may be enforced by federal law enforcement despite conflicting laws, such as California’s Compassionate Use Act.

As a result, the Ninth Circuit has since ruled that although Angel McClary Raich, plaintiff in above civil suit, appears to make a good argument for invoking the “Common Law Necessity” defense, she is not entitled to do so until she is actually arrested and prosecuted for violating the federal Controlled Substances Act (21 U.S.C. §§ 801 to 971) of the “Comprehensive Drug Abuse Prevention and Control Act of 1970.” A court will not enjoin the enforcement of a criminal statute unless and until the plaintiff has been charged with a violation of that statute and can show that the Necessity Defense applies to her circumstance as it exists at that time. The Court further ruled that the federal restrictions on the possession and use of marijuana did not violate her due process rights (Fifth and Ninth Amendments), nor infringe upon California’s sovereign powers as protected under the Tenth Amendment. (Raich v. Gonzales (9th Cir. 2007) 500 F.3rd 850.)

The Ninth Circuit did indicate, however, that when and if Raich is in fact prosecuted for violating these federal restrictions on the possession and use of marijuana for medical purposes, “in light of the compelling facts before the district court, Raich appears to satisfy the threshold requirements for asserting a necessity defense under our case law.” (Ibid.)

It is the opinion of the California Attorney General that Gonzales v. Raich should have no effect upon the state and local enforcement of California’s marijuana statutes, nor the applicability of the Compassionate Use Act. (Bulletins, dated June 9 and 22, 2005)

The Controlled Substances Act (21 U.S.C. §§ 801 to 971) of the “Comprehensive Drug Abuse Prevention and Control Act of 1970:

Marijuana is a federally controlled substance. (21 U.S.C. §§ 802(6), 812(c)) Manufacturing marijuana violates the Controlled Substances Act. (21 U.S.C. § 841(a)(1)), and is a felony offense (21 U.S.C. § 841(b)(1)(C)) The Controlled Substances Act defines manufacturing as, in relevant part, “the production, preparation, propagation, compounding, or processing of a drug or other substance.” (21 U.S.C. § 802(15)) “Production” is defined as “the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.” (21 U.S.C. § 802(22)) (See Dominquez v. Barr (9th Cir. 2020) 975 F.3rd 725, 739.)

In United States v. McIntosh (9th Cir. 2016) 833 F.3rd 1163, the Ninth Circuit considered the issue raised by defendants from 10 separate cases whether persons may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the U.S. Department of Justice (DOJ) from spending funds to prevent states’ implementation of their own medical marijuana laws. The Court held that the Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), at a minimum, prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.

The Court concluded that § 542 prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. It does not prevent the prosecution of individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized. Prosecuting such individuals does not violate § 542.

The Court therefore remanded the cases at issue to the district courts for a determination whether DOJ wishes to continue with these prosecutions. If so, defendants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law; i.e. that defendants strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. If so, then the federal government may not continue the prosecution of such individuals under federal law.

However, at pg. 1179, fn. 5, the Court warns that Congress has done no more than restrict the expenditure of certain funds in prosecuting marijuana cases, and does not provide immunity for such acts; a policy that could change tomorrow. But federal law on the possession of marijuana remains the same: “Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.” (Id., at pg. 1179, fn. 5.)

However, to get the benefit of this restriction on expending federal funds on the prosecution of marijuana cases, the alleged offenses must have been legal under state law: “Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542.” (United States v. Kleinman (9th Cir. 2017) 859 F.3rd 825, 833; holding that defendant had no state-law defense for his sales of approximately 85 kilograms of marijuana to out-of-state customers.)

Also, whatever protections the Consolidated Appropriations Act might provide may be waived. Where the wavier language included in a defendant’s plea agreement is broad and unambiguous, that waiver precludes the defendant’s habeas corpus petition based upon his argument that the congressional appropriations rider prohibited the Bureau of Prisons from using federal funds to incarcerate him, arguing that he must be released from custody to remedy the wrongful expenditure of funds needed to keep him incarcerated. Defendant was held to have validly waived any such aspect of the sentence imposed in his case. (Davies v. Benov (9th Cir. 2017) 856 F.3rd 1243.)

However, the Ninth Circuit Court of Appeal has affirmed the district court’s denial of a motion to enjoin the government’s prosecution of two defendants charged with conspiracy to manufacture marijuana plants and manufacture of marijuana plants. The Court held that a congressional prohibition on the Department of Justice's use of appropriated funds to prevent states from implementing state laws that authorize the use, distribution, possession, or cultivation of medical marijuana does not limit the government's ability to enforce federal drug laws on federal land. (United States v. Gilmore (9th Cir. 2018) 886 F.3d 1288.)

The district court properly enjoined the government from spending additional funds on the prosecution of defendants who had pled guilty to conspiracy to manufacture and possess with intent to distribute marijuana under 21 U.S.C.S. §§ 841(a)(1), (b)(1)(C), and 846. The district court did not err in concluding that defendants met their burden to show that they were strictly compliant with California's Medical Marijuana Program Act, Cal. Health & Safety Code § 11362.775, at the time of their arrest as the district court properly focused the McIntosh hearing on the conduct underlying the charge, and its analysis of state law was not in error and its factual findings were not clearly erroneous. (United States v. Pisarski (9th Cir. 2020) 965 F.3rd 738; referring to United States v. McIntosh (9th Cir. 2016) 833 F.3rd 1163, above.)

The Americans with Disabilities Act (“ADA,” 42 U.S.C. § 12210(a)) does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use. (James v. City of Costa Mesa (9th Cir. 2012) 700 F.3rd 394, 397-405.)

18 U.S.C. § 922(d)(3) (Users of a controlled substance prohibited from possessing firearms), 27 C.F.R. § 478.11 (defining an unlawful user of controlled substances) and an ATF “Open Letter to all Federal Firearms Licensees” (prohibiting the possession of firearms by medical marijuana users) do not violate the Second Amendment rights of a holder of a Nevada medical marijuana registry card who was prevented from purchasing a firearm. The degree of fit between the challenged provisions and the aim of preventing gun violence was sufficient to survive intermediate scrutiny. The holder’s acquisition of a registry card was protected under the First Amendment (freedom of speech), but the challenged provisions survived intermediate scrutiny. The incidental effect on the holder’s First Amendment rights was no greater than necessary to reduce gun violence. The holder’s procedural due process rights were also not violated in that she did not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm. (Wilson v. Lynch (9th Cir. 2016) 835 F.3rd 1083.)

Labor Peace Agreements:

In California, cannabis companies with more than 20 employees are required to enter into a labor “peace agreement” in order to obtain their license to sell recreational cannabis. (16 Cal. Code of Regulations, § 5600(20).)

Notes:

A labor peace agreement is an agreement a cannabis business enters into with a union that includes obligations for both the union and the cannabis business. A peace agreement requires only that a cannabis company allow the union reasonable access to talk to its employees.

A peace agreement does not require a cannabis company’s employees to unionize, nor does it require the company to enter into a “neutrality agreement.”

A “neutrality agreement” is an agreement between a union and an employer where the employer agrees to remain neutral during a union organizing campaign.

The City of San Francisco is stricter. In San Francisco, cannabis companies with 10 or more employees must enter into a peace agreement. (S.F. Municipal Code, § 1609(b)(12).) Failure to do so may result in monetary penalties and/or a permit suspension or revocation of licenses. (Police Code, Art. 16, §§ 1631-1633.)

Summary:

There are any number of divergent views as to the wisdom and practicality of Proposition 215 and subsequent legislative enactments. There also remains a great deal of prosecutorial, judicial, and law enforcement concern about the vagueness seemingly built into the medicinal marijuana provisions themselves, thus making them easily subject to abuse and difficult to enforce. However, it must be remembered that sections 11362.5, 11362.7 et seq., the Medical Cannabis Regulation and Safety Act, and related statutes, are the law. And despite such issues, its provisions, taking into consideration the few appellate court cases that have sought to provide us with some guidance, must be respected and, to the extent possible under the circumstances, enforced accordingly.

What federal law enforcement chooses to do, given their authority to ignore the California Compassionate Use Act, is up to them. On that dilemma, the rules are still in the development stage.

Despite the above guidelines, all such cases will be evaluated by the San Diego District Attorney’s Office on a case-by-case basis, recognizing that only those cases for which there is a “reasonable possibility of conviction” will be filed and prosecuted. Among those factors that will be considered are the subject’s claims of a medical necessity, what evidence in support of the claim he or she is able to provide, as well as the underlying purposes and spirit of Proposition 215 as mandated by a majority of the voters of this state.

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