Marijuana, Proposition 215: A Legal Update

16 Dec 2021

LU Ref# CAB00097

Marijuana, Proposition 215: A Legal Update

January, 2016
Robert C. Phillips
Deputy District Attorney (Ret.)

Proposition 215: On November 6, 1996, the so-called “Compassionate Use Act of 1996” (“CUA”) became effective 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(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.”

The statute further indicates that its purpose is to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes . . . in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” (subd. (b)(1)(A))

“The chief purposes of Proposition 215 are:

(1) To give Californians the right to obtain and use marijuana in the medical treatment of illnesses for which it provides appropriate relief, as recommended by a physician;
(2) To protect patients and primary caregivers, as defined, from criminal prosecution or other sanctions based on their possession, use, or distribution of marijuana for medical purposes; and
(3) To encourage implementation of a cooperative government plan to make marijuana available and affordable to all patients in medical need thereof.” (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.)

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.

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” as 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.)

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.” (subd. (e))

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

This language 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.)

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.”)

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.)

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.

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.)

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.” (H&S § 11362.5(e))

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.

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: 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): “Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”

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.)

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.)

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.)

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.2n 1103.)

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.)

H&S §§ 11362.7 et seq: Effective January 1, 2004, 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, effective 1/1/2004), 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.)

H&S § 11362.7: Definitions of terms, including:

(a) “Attending physician:” “(A)n individual who possesses a license in good standing to practice medicine or osteopathy . . . 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 marijuana is appropriate.”

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.)

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

“Primary caregiver:” “(T)he individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that person, . . . (including, but not limited to [see the section]):

(1) “ . . . 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 (as each is described in the section), if designated as a primary caregiver by that qualified patient or person with an identification card.”

1. “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.”

1. “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.”

Note: The “primary caregiver” must be at least 18 years of age, with certain exceptions. (subd. (e))

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.)

“Qualified patient:” “(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.”

“Identification Card:” “(A) document issued by the State Department of Health Services that document identifies a person authorized to engage in the medical use of marijuana and the person’s designated primary caregiver, if any.”

“Serious Medical Condition:”

- Acquired immune deficiency syndrome (AIDS).
- Anorexia.
- Arthritis.
- Cachexia. (A clinical wasting syndrome)
- Cancer.
- Chronic pain.
- Glaucoma.
- Migraine.
- Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
- Seizures, including, but not limited to, seizures associated with epilepsy.
- Severe nausea.
- 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 Americans with Disabilities Act of 1990; or

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

(i) “Written documentation:” “(A)ccurate reproductions of those portions of a patient’s medical records that have been created by the attending physician, that contain the information required by Section 11362.715(a)(2), and that the patient may submit to a county health department or the county’s designee as part of an application for an identification card.”

H&S § 11362.71: Provisions for the Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to “qualified patients” (i.e., those who are entitled to the protections of section 11362.5) and their “primary caregivers.”

A 24-hour telephone number is to be established for law enforcement to verify the authenticity of such cards. The section (in subd. (e)) provides for protection from arrest for possession, transportation, delivery, or cultivation of medical marijuana, for persons in possession of identification cards, absent “reasonable cause” (i.e., “probable cause”) to believe that the card is false or obtained by fraud or the person is otherwise in violation of these sections.

Also, however, it is specifically provided that a person need not apply for and obtain an identification card in order to claim the protections of H&S § 11362.5.

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.)

Petition for review was denied by the California Supreme Court on Oct. 16, 2008, and petition for writ of certiorari was denied by the United States Supreme Court on May 18, 2009.

H&S § 11362.715: Information that must be provided to the County Health Department or designee in order to obtain an identification card.

H&S § 11362.72: Responsibilities of the County Health Department upon receipt of an application for an identification card.

H&S § 11362.735: Required format for the identification card.

H&S § 11362.74: Grounds for denying an application for an identification card.

H&S § 11362.745: Identification cards are valid for one year. Procedures for an annual renewal of the card.

H&S § 11362.755: Provisions for establishing application and renewal fees.

H&S § 11362.76: 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.

(a)(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): Protections from criminal liability for H&S §§ 11357 (possession), 11358 (cultivation), 11359 (possession for sale), 11360 (transportation), 11366 (maintaining a place used for selling), 11366.5 (managing a place used for selling), 11570 (abatement of a nuisance), for the following persons:

(a) “(N)othing in this section shall authorize . . . any . . . group to cultivate or distribute marijuana for profit.”

(b)(1) A “qualified patient” or a “person with an identification card” who transports or possesses marijuana for his/her own personal medical use.

(b)(2) A “designated primary caregiver” who transports, processes, administers, delivers, or gives away to a qualified patient of the primary caregiver or to a person with an identification card who has designated the individual as his/her primary caregiver with marijuana for medical purposes, in amounts not exceeding those listed in H&S 11362.77 (below).

(b)(3) Any individual who provides assistance to the above persons.

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.)

Note: Effective January 1, 2016, the transportation of marijuana will be a felony only if it is done for the purpose of selling it. (AB 730)

Cultivation of marijuana, under H&S 11358, is not one of the enumerated offenses eligible for resentencing from a felony to a misdemeanor under Proposition 47 (P.C. § 1170.18). (People v. Descano (Feb. 25, 2016) __ Cal.App.4th __ [2016 Cal. App. LEXIS 144].)

H&S § 11362.765(c): Protection from criminal liability for H&S §§ 11359 (possession for sale) or 11360 (transportation) for a primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided, or for payment for out-of-pocket expenses incurred in providing those services, or both.

Note: Effective January 1, 2016, the transportation of marijuana will be a felony only if it is done for the purpose of selling it. (AB 730)

H&S § 11362.768 (Effective 1/1/11): Medical Marijuana Dispensaries:

Medical marijuana cooperatives, collectives, dispensaries, operators, establishments, or providers who possess, cultivate, or distribute medical marijuana are prohibited from being located within a 600-foot radius of a school.

A “school” is defined as any public or private school providing instruction in kindergarten through grade 12.

This restriction does not apply to a medical marijuana provider that is also a licensed residential medical or elder care facility.

A city, county, or city and county are not prohibited from adopting ordinances or policies that further restrict the location of medical marijuana providers.

The section shall not preempt local ordinances adopted before January 1, 2011.

See “The Issue of 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 (Effective 1/1/2016): Compliance with State and Local Environmental Regulations:

Indoor and outdoor medical marijuana cultivation shall be conducted in accordance with state and local laws related to land conversion, 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 medical marijuana cultivation and shall coordinate, when appropriate, with cities and counties and their law enforcement agencies in enforcement efforts.

H&S § 11362.77(a): Limits on possession: A qualified patient or primary caregiver may possess 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.

Counties and cities may allow for higher limits.

Only the dried mature processed flowers of the female

cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana.

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” 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 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: Provides under subd. (a) for protection from criminal liability for H&S §§ 11357 (possession), 11358 (cultivation), 11359 (poss. for sale), 11360 (transportation), 11366 (maintaining a place used for selling), 11366.5 (managing a place used for selling), 11570 (abatement of a nuisance), for qualified patients, persons with valid identification cards, and designated primary caregivers “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.”

(b) As amended on 1/1/2016: This section shall remain in effect only until one year after the Bureau of Medical Marijuana Regulation posts a notice on its Internet Web site that the licensing authorities have commenced issuing licenses pursuant to the Medical Marijuana Regulation and Safety Act (Bus. & Prof. Code §§ 19300 et seq.; effective 1/1/2016), and is repealed upon issuance of licenses.

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.)

The Issue of 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 (Dec. 1, 2015) __ Cal.App.4th __ [2015 Cal. App. LEXIS 1073].)

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. __.)

But 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, republished by order of the California Supreme Court at (2013) 2013 Cal. LEXIS 7917, with the exception of Part III of “Discussion.”)

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? Again, there is a conflict:

The Second District Court of Appeal has ruled that a city’s ordinance, which permits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law. (Pack v. Superior Court [City of Long Beach] (2011) 199 Cal.App.4th 1070.)

Pack holds that the federal CSA preempts Long Beach’s ordinance that allowed medical marijuana dispensaries through an extensive permitting and regulatory scheme because it allowed activities that the CSA specifically prohibits.

Petition for review was granted in Pack on January 18, 2012, by the California Supreme Court.

However, it has previously been 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.)

Review has been denied by the California Supreme Court; Dec. 1, 2010.

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.)

Petition for review was denied by the California Supreme Court on Oct. 16, 2008, and petition for writ of certiorari was denied by the United States Supreme Court on May 18, 2009.

Note: Effective January 1, 2016, the transportation of marijuana will be a felony only if it is done for the purpose of selling it. (AB 730)

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.)

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 § 0521 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.)

H&S Code § 11362.777 (Effective 1/1/2016): Medical Cannabis Cultivation Program; Licensing and Permit Requirements; Identification Program:

(a) The Department of Food and Agriculture shall establish a “Medical Cannabis Cultivation Program” to be administered by the secretary, except as specified in subd. (c), shall administer this section as it pertains to the cultivation of medical marijuana. For purposes of this section and B&P Code §§ 19300 et seq., medical cannabis is an agricultural product.

(b)

(1) A person or entity shall not cultivate medical marijuana without first obtaining both of the following:

(A) A license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city, county, or city and county in which the cultivation will occur.

(B) A state license issued by the department pursuant to this section.

(2) A person or entity shall not submit an application for a state license issued by the department pursuant to this section unless that person or entity has received a license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city, county, or city and county in which the cultivation will occur.

(3) A person or entity shall not submit an application for a state license issued by the department pursuant to this section if the proposed cultivation of marijuana will violate the provisions of any local ordinance or regulation, or if medical marijuana is prohibited by the city, county, or city and county in which the cultivation is proposed to occur, either expressly or otherwise under principles of permissive zoning.

(c)

(1) Except as otherwise specified in this subdivision, and without limiting any other local regulation, a city, county, or city and county, through its current or future land use regulations or ordinance, may issue or deny a permit to cultivate medical marijuana pursuant to this section. A city, county, or city and county may inspect the intended cultivation site for suitability prior to issuing a permit. After the city, county, or city and county has approved a permit, the applicant shall apply for a state medical marijuana cultivation license from the department. A locally issued cultivation permit shall only become active upon licensing by the department and receiving final local approval. A person shall not cultivate medical marijuana prior to obtaining both a permit from the city, county, or city and county and a state medical marijuana cultivation license from the department.

(2) A city, county, or city and county that issues or denies conditional licenses to cultivate medical marijuana pursuant to this section shall notify the department in a manner prescribed by the secretary.

(3) A city, county, or city and county’s locally issued conditional permit requirements must be at least as stringent as the department’s state licensing requirements.

(4) If a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016, the division shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county.

(d)

(1) The secretary may prescribe, adopt, and enforce regulations relating to the implementation, administration, and enforcement of this part, including, but not limited to, applicant requirements, collections, reporting, refunds, and appeals.

(2) The secretary may prescribe, adopt, and enforce any emergency regulations as necessary to implement this part. Any emergency regulation prescribed, adopted, or enforced pursuant to this section shall be adopted in accordance with Govt. Code §§ 11340 et seq., and, for purposes of that chapter, including Govt. 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.

(3) The secretary may enter into a cooperative agreement with a county agricultural commissioner to carry out the provisions of this chapter, including, but not limited to, administration, investigations, inspections, licensing and assistance pertaining to the cultivation of medical marijuana. Compensation under the cooperative agreement shall be paid from assessments and fees collected and deposited pursuant to this chapter and shall provide reimbursement to the county agricultural commissioner for associated costs.

(e)

(1) The department, in consultation with, but not limited to, the Bureau of Medical Marijuana Regulation, the State Water Resources Control Board, and the Department of Fish and Wildlife, shall implement a unique identification program for medical marijuana. In implementing the program, the department shall consider issues, including, but not limited to, water use and environmental impacts. In implementing the program, the department shall ensure that:

(A) 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) Cultivation will not negatively impact springs, riparian wetlands, and aquatic habitats.

(2) The department shall establish a program for the identification of permitted medical marijuana plants at a cultivation site during the cultivation period. The unique identifier shall be attached at the base of each plant. A unique identifier, such as, but not limited to, a zip tie, shall be issued for each medical marijuana plant.

(A) Unique identifiers will only be issued to those persons appropriately licensed by this section.

(B) Information associated with the assigned unique identifier and licensee shall be included in the trace and track program specified in Section 19335 of the Business and Professions Code.

(C) The department may charge a fee to cover the reasonable costs of issuing the unique identifier and monitoring, tracking, and inspecting each medical marijuana plant.

(D) 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.

(f)

(1) A city, county, or city and county that issues or denies licenses to cultivate medical marijuana pursuant to this section shall notify the department in a manner prescribed by the secretary.

(2) Unique identifiers and associated identifying information administered by a city or county shall adhere to the requirements set by the department and be the equivalent to those administered by the department.

(g) This section does not apply to a qualified patient cultivating marijuana pursuant to H&S Code § 11362.5 if the area he or she uses to cultivate marijuana does not exceed 100 square feet and he or she cultivates marijuana for his or her personal medical use and does not sell, distribute, donate, or provide marijuana to any other person or entity. This section does not apply to a primary caregiver cultivating marijuana pursuant to H&S Code § 11362.5 if the area he or she uses to cultivate marijuana does not exceed 500 square feet and he or she cultivates marijuana exclusively for the personal medical use of no more than five specified qualified patients for whom he or she is the primary caregiver within the meaning of H&S Code § 11362.7 and does not receive remuneration for these activities, except for compensation provided in full compliance with H&S Code § 11362.765(c). For purposes of this section, the area used to cultivate marijuana shall be measured by the aggregate area of vegetative growth of live marijuana plants on the premises. Exemption from the requirements of this section does not limit or prevent a city, county, or city and county from regulating or banning the cultivation, storage, manufacture, transport, provision, or other activity by the exempt person, or impair the enforcement of that regulation or ban.

H&S § 11362.78: Requirement that local law enforcement agencies or officers accept an identification card absent “reasonable cause” (i.e., “probable cause”) to believe the card is false or fraudulent, or the card is being used fraudulently.

H&S § 11362.785: Sections not intended to allow the use of marijuana in the workplace, or while incarcerated, although prisoners may make application for an identification card. Jail or correctional institution authorities may allow the use of marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.

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: Sections do not allow for the smoking of medical marijuana under any of the following circumstances:

In any place where smoking is prohibited by law.
In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs in a residence.
On a school bus.
While in a motor vehicle that is being operated.
While operating a boat.

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.)

H&S § 11362.795: Use of medical marijuana while on probation, or bail, or on parole: Requirement that the person seek permission and modification of the terms and conditions of probation, a bail release, or parole, to allow such usage.

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: A designated primary caregiver may not be penalized by a professional licensing board for performing acts necessary or appropriate to carry out the licensee’s role as a caregiver. This subdivision does not apply to a physician “relating to the discussion or recommendation of the medical use of marijuana to a patient,” per section 11362.5.

H&S § 11362.81(a), (c): Persons who commit a below-listed offense are subject to the following misdemeanor penalties:

(a)(1) First offense: 6 months and/or $1,000.

(a)(2) Second or subsequent offense: One year and/or $1,000.

1. Precluded from obtaining an identification card for up to six months.

H&S § 11362.81(b): Violations:

Providing fraudulent information concerning the person’s medical condition, or fraudulently providing any material misinformation to a physician, county health department, or state or local law enforcement, for the purpose of obtaining an identification card.

Stealing or fraudulently using another’s identification card in order to acquire, possess, cultivate, transport, use, produce or distribute marijuana.

Counterfeiting, tampering with, or fraudulently producing an identification card.

Breaching the confidentiality requirements of these sections to information provided to, or contained in the records of, a County Health Department.

H&S § 11362.81(d): “(T)he Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the [CUA].”

Such guidelines were issued August 25, 2008, with the stated purpose to:

Ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets;
Help law enforcement agencies perform their duties effectively and in accordance with California law; and
Help patients and primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law.

See “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use” at “http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.pdf.”

See also 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: Severability clause.

H&S § 11362.83: Local governing bodies may adopt and enforce laws consistent with the above.

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 attempts 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.”

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 § 11357.5 (Effective 1/1/1012); Furnishing Synthetic Cannabinoid or Derivative:

A person who sells, distributes, furnishes, or gives, or offers to sell, distribute, furnish, or give, or possesses for sale, any synthetic cannabinoid compound or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor.

Misdemeanor: Six months in jail and/or a fine of $1,000.

“Synthetic cannabinoid compound” refers to five specified substances:

1. 1-pentyl-3-(1-naphthoyl) indole (JWH-018)

2. 1-butyl-3-(1-naphthoyl) indole (JWH-073)

3. 1-[2-(4-morpholinyl) ethyl]-3-(1-naphthoyl) indole (JWH-200)

4. 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497)

5. 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47, 497 C8 homologue)

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

Water Code § 13276 (Effective 1/1/2016): Environmental Impacts of Cannabis Cultivation:

(a) The multiagency task force, the Department of Fish and Wildlife and State Water Resources Control Board pilot project to address the Environmental Impacts of Cannabis Cultivation, assigned to respond to the damages caused by marijuana 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 marijuana cultivation on water quality and on fish and wildlife throughout the state.

(b) Each regional board shall, and the State Water Resources Control Board may, address discharges of waste resulting from medical marijuana cultivation 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, each 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.

Medical Marijuana Regulation and Safety Act:

Effective, January 1, 2016, the Legislature enacted a series of statutes in the Business and Professions Code for regulating the growing and distribution of medical marijuana.

Bus. & Prof. Code § 19300 (New): Medical Marijuana Regulation and Safety Act:

This act shall be known and may be cited as the Medical Marijuana Regulation and Safety Act.

Bus. & Prof. Code § 19300.5 (New): Definitions:

For purposes of this chapter, the following definitions shall apply:

(a) “Accrediting body” means a nonprofit organization that requires conformance to ISO/IEC 17025 requirements and is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangement for Testing.

(b) “Applicant,” for purposes of Article 4 (commencing with Section 19319), means the following:

(1) Owner or owners of a proposed facility, including all persons or entities having ownership interest other than a security interest, lien, or encumbrance on property that will be used by the facility.

(2) If the owner is an entity, “owner” includes within the entity each person participating in the direction, control, or management of, or having a financial interest in, the proposed facility.

(3) If the applicant is a publicly traded company, “owner” means the chief executive officer or any person or entity with an aggregate ownership interest of 5 percent or more.

(c) “Batch” means a specific quantity of medical cannabis or medical cannabis products that is intended to have uniform character and quality, within specified limits, and is produced according to a single manufacturing order during the same cycle of manufacture.

(d) “Bureau” means the Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs. (See also B&P Code § 101 (Amended), subd. (ao))

(e) “Cannabinoid” or “phytocannabinoid” means a chemical compound that is unique to and derived from cannabis.

(f) “Cannabis” means:

1. 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.

2. The separated resin, whether crude or purified, obtained from marijuana.

3. Marijuana as defined by H&S § 11018.

“Cannabis” does not:

1. 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.

2. Mean, for purposes of this chapter, “industrial hemp” as defined by Food and Agri. Code § 81000 or H&S § 11018.5.

(g) “Cannabis concentrate” means manufactured cannabis that has undergone a process to concentrate the cannabinoid active ingredient, thereby increasing the product’s potency. An edible medical cannabis product is not considered food, as defined by H&S § 109935, or a drug, as defined by H&S § 109925.

(h) “Caregiver” or “primary caregiver” has the same meaning as that term is defined in H&S § 11362.7.

(i) “Certificate of accreditation” means a certificate issued by an accrediting body to a licensed testing laboratory, entity, or site to be registered in the state.

(j) “Chief” means Chief of the Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs.

(k) “Commercial cannabis activity” includes cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in B&P Code § 19319, related to qualifying patients and primary caregivers.

(l) “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.

(m) “Delivery:”

1. Means the commercial transfer of medical cannabis or medical cannabis products from a dispensary, up to an amount determined by the bureau to a primary caregiver or qualified patient as defined in H&S § 11362.7, or a testing laboratory.

2. Includes the use by a dispensary of any technology platform owned and controlled by the dispensary, or independently licensed under this chapter that enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed dispensary of medical cannabis or medical cannabis products.

(n) “Dispensary” means a facility where medical cannabis, medical cannabis products, or devices for the use of medical cannabis or medical cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers, pursuant to express authorization by local ordinance, medical cannabis and medical cannabis products as part of a retail sale.

(o) “Dispensing” means any activity involving the retail sale of medical cannabis or medical cannabis products from a dispensary.

(p) “Distribution” means the procurement, sale, and transport of medical cannabis and medical cannabis products between entities licensed pursuant to this chapter.

(q) “Distributor” means a person licensed under this chapter to engage in the business of purchasing medical cannabis from a licensed cultivator, or medical cannabis products from a licensed manufacturer, for sale to a licensed dispensary.

(r) “Dried flower” means all dead medical cannabis that has been harvested, dried, cured, or otherwise processed, excluding leaves and stems.

(s) “Edible cannabis product” means manufactured cannabis that is intended to be used, in whole or in part, for human consumption, including, but not limited to, chewing gum. An edible medical cannabis product is not considered food as defined by H&S § 109935 or a drug as defined by H&S § 109925.

(t) “Fund” means the “Medical Marijuana Regulation and Safety Act Fund” established pursuant to B&P Code § 19351.

(u) “Identification program” means the universal identification certificate program for commercial medical cannabis activity authorized by this chapter.

(v) “Labor peace agreement” means an agreement between a licensee and a 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.

(w) “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 license.

(x) “Cultivation site” means a facility where medical cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities, that holds a valid state license pursuant to this chapter, and that holds a valid local license or permit.

(y) “Manufacturer” means a person that conducts the production, preparation, propagation, or compounding of manufactured medical cannabis, as described in subd. (ae), or medical 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 medical cannabis or medical cannabis products or labels or relabels its container, that holds a valid state license pursuant to this chapter, and that holds a valid local license or permit.

(z) “Testing laboratory” means a facility, entity, or site in the state that offers or performs tests of medical cannabis or medical cannabis products and that is both of the following:

(1) Accredited by an accrediting body that is independent from all other persons involved in the medical cannabis industry in the state.

(2) Registered with the State Department of Public Health.

(aa) “Transporter” means a person issued a state license by the bureau to transport medical cannabis or medical cannabis products in an amount above a threshold determined by the bureau between facilities that have been issued a state license pursuant to this chapter.

(ab) “Licensee” means a person issued a state license under this chapter to engage in commercial cannabis activity.

(ac) “Live plants” means living medical cannabis flowers and plants, including seeds, immature plants, and vegetative stage plants.

(ad) “Lot” means a batch, or a specifically identified portion of a batch, having uniform character and quality within specified limits. In the case of medical cannabis or a medical cannabis product produced by a continuous process, “lot” means a specifically identified amount produced in a unit of time or a quantity in a manner that ensures its having uniform character and quality within specified limits.

(ae) “Manufactured cannabis” means raw cannabis that has undergone a process whereby the raw agricultural product has been transformed into a concentrate, an edible product, or a topical product.

(af) “Manufacturing site” means a location that produces, prepares, propagates, or compounds manufactured medical cannabis or medical cannabis products, directly or indirectly, by extraction methods, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and is owned and operated by a licensee for these activities.

(ag) “Medical cannabis,” “medical cannabis product,” or “cannabis product” means a product containing cannabis, including, but not limited to, concentrates and extractions, intended to be sold for use by medical cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at H&S § 11362.5. For the purposes of this chapter, “medical cannabis” does not include “industrial hemp” as defined by Food & Agri. Code § 81000 or H&S § 11018.5.

(ah) “Nursery” means a licensee that produces only clones, immature plants, seeds, and other agricultural products used specifically for the planting, propagation, and cultivation of medical cannabis.

(ai) “Permit,” “local license,” or “local permit” means an official document granted by a local jurisdiction that specifically authorizes a person to conduct commercial cannabis activity in the local jurisdiction.

(aj) “Person” means an 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 includes the plural as well as the singular number.

(ak) “State license,” “license,” or “registration” means a state license issued pursuant to this chapter.

(al) “Topical cannabis” means a product intended for external use. A topical cannabis product is not considered a drug as defined by H&S § 109925.

(am) “Transport” means the transfer of medical cannabis or medical cannabis products from the permitted business location of one licensee to the permitted business location of another licensee, for the purposes of conducting commercial cannabis activity authorized pursuant to this chapter.

Bus. & Prof. Code § 19300.7 (New): License Classifications:

License classifications pursuant to this chapter are as follows:

(a) Type 1 = Cultivation; Specialty outdoor; Small.

(b) Type 1A = Cultivation; Specialty indoor; Small.

(c) Type 1B = Cultivation; Specialty mixed-light; Small.

(d) Type 2 = Cultivation; Outdoor; Small.

(e) Type 2A = Cultivation; Indoor; Small.

(f) Type 2B = Cultivation; Mixed-light; Small.

(g) Type 3 = Cultivation; Outdoor; Medium.

(h) Type 3A = Cultivation; Indoor; Medium.

(i) Type 3B = Cultivation; Mixed-light; Medium.

(j) Type 4 = Cultivation; Nursery.

(k) Type 6 = Manufacturer 1.

(l) Type 7 = Manufacturer 2.

(m) Type 8 = Testing.

(n) Type 10 = Dispensary; General.

(o) Type 10A = Dispensary; No more than three retail sites.

(p) Type 11 = Distribution.

(q) Type 12 = Transporter.

Bus. & Prof. Code § 19302 (New): The Bureau of Medical Marijuana:

There is in the Department of Consumer Affairs the Bureau of Medical Marijuana Regulation, under the supervision and control of the director. The director shall administer and enforce the provisions of this chapter.

See also B&P Code § 101 (Amended), subd. (ao)

Bus. & Prof. Code § 19302.1 (New): Appointment of Bureau Chief and Employees; Authority of the Departments of Consumer Affairs and Food and Agriculture:

(a) The Governor shall appoint a chief of the bureau, subject to confirmation by the Senate, at a salary to be fixed and determined by the director with the approval of the Director of Finance. The chief shall serve under the direction and supervision of the director and at the pleasure of the Governor.

(b) Every power granted to or duty imposed upon the director under this chapter 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 with this chapter, 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 may employ and appoint all employees necessary to properly administer the work of the bureau, in accordance with civil service laws and regulations.

(d) The Department of Consumer Affairs shall have the sole authority to create, issue, renew, discipline, suspend, or revoke licenses for the transportation, storage unrelated to manufacturing activities, distribution, and sale of medical marijuana within the state and to collect fees in connection with activities the bureau regulates. The bureau may create licenses in addition to those identified in this chapter that the bureau deems necessary to effectuate its duties under this chapter.

(e) The Department of Food and Agriculture shall administer the provisions of this chapter related to and associated with the cultivation of medical cannabis. The Department of Food and Agriculture shall have the authority to create, issue, and suspend or revoke cultivation licenses for violations of this chapter. The State Department of Public Health shall administer the provisions of this chapter related to and associated with the manufacturing and testing of medical cannabis.

Bus. & Prof. Code § 19303 (New): Protection of the Public:

Protection of the public shall be the highest priority for the bureau in exercising its licensing, regulatory, and disciplinary functions under this chapter. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.

Bus. & Prof. Code § 19304 (New): Power to Prescribe Reasonable and Necessary Rules:

The bureau shall make and prescribe reasonable rules as may be necessary or proper to carry out the purposes and intent of this chapter and to enable it to exercise the powers and duties conferred upon it by this chapter, not inconsistent with any statute of this state, including particularly this chapter and Govt. Code §§ 11340 et seq. For the performance of its duties, the bureau has the power conferred by Govt. Code §§ 11180 to 11191.

Bus. & Prof. Code § 19305 (New): Notice of Action of the Licensing Authority:

Notice of any action of the licensing authority required by this chapter to be given may be signed and given by the director or an authorized employee of the department and may be made personally or in the manner prescribed by Code of Civ. Proc. § 1013.

Bus. & Prof. Code § 19306 (New): Advisory Committee:

(a) The bureau may convene an advisory committee to advise the bureau and licensing authorities on the development of standards and regulations pursuant to this chapter, including best practices and guidelines to ensure qualified patients have adequate access to medical cannabis and medical cannabis products. The advisory committee members shall be determined by the chief.

(b) The advisory committee members may include, but not be limited to, representatives of the medical marijuana industry, representatives of medical marijuana cultivators, appropriate local and state agencies, appropriate local and state law enforcement, physicians, environmental and public health experts, and medical marijuana patient advocates.

Bus. & Prof. Code § 19307 (New): Investigations:

A licensing authority may make or cause to be made such investigation as it deems necessary to carry out its duties under this chapter.

Bus. & Prof. Code § 19308 (New): Delegation to an Administrative Law Judge:

For any hearing held pursuant to this chapter, the director, or 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 Govt. Code §§ 11500 et seq.

Bus. & Prof. Code § 19309 (New): Witness Remuneration:

In any hearing before a licensing authority pursuant to this chapter, 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.

Bus. & Prof. Code § 19310 (New): Penalty Assessment Review:

The department 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.

Bus. & Prof. Code § 19311 (New): Grounds for Disciplinary Action:

Grounds for Disciplinary Action:

(a) Failure to comply with the provisions of this chapter or any rule or regulation adopted pursuant to this chapter.

(b) Conduct that constitutes grounds for denial of licensure pursuant to B&P Code §§ 490 et seq.

(c) Any other grounds contained in regulations adopted by a licensing authority pursuant to this chapter.

(d) Failure to comply with any state law, except as provided for in this chapter or other California law.

Bus. & Prof. Code § 19312 (New): License Suspensions or Revocations:

Each licensing authority may suspend or revoke licenses, 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 Govt. Code §§ 11500 et seq., and the director of each licensing authority shall have all the powers granted therein.

Bus. & Prof. Code § 19313 (New): Disciplinary Actions:

Each licensing authority may take disciplinary action against a licensee for any violation of this chapter when the violation was committed by the licensee’s agent or employee while acting on behalf of the licensee or engaged in commercial cannabis activity.

Bus. & Prof. Code § 19313.5 (New): Informing the Bureau upon Revocation of a License:

Upon suspension or revocation of a license, the licensing authority shall inform the bureau. The bureau shall then inform all other licensing authorities and the Department of Food and Agriculture.

Bus. & Prof. Code § 19314 (New): Filing of Accusations by the Licensing Authority:

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 such case shall not be deemed to have accrued until discovery, by the licensing authority, of the facts constituting the fraud or misrepresentation, and, in such case, the accusation shall be filed within five years after such discovery.

Bus. & Prof. Code § 19315 (New): Not Intended to Limit State or Local Authority:

(a) Nothing in this chapter shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.

(b) Nothing in this chapter shall be interpreted to require the Department of Consumer Affairs to undertake local law enforcement responsibilities, enforce local zoning requirements, or enforce local licensing requirements.

(c) Nothing in this chapter shall be interpreted to supersede or limit state agencies from exercising their existing enforcement authority under the Fish and Game Code, the Water Code, the Food and Agricultural Code, or the Health and Safety Code.

Bus. & Prof. Code § 19316 (New): Local Regulation:

(a) Pursuant to of Art. XI, § 7 of the California Constitution, a city, county, or city and county may adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity. Any standards, requirements, and regulations regarding health and safety, testing, security, and worker protections established by the state shall be the minimum standards for all licensees statewide.

(b) 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 chapter 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 further assume complete responsibility for any regulatory function relating to those licensees 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.

(c) Nothing in this chapter, or any regulations promulgated thereunder, shall 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, Art. XI, § 7 of the California Constitution.

Bus. & Prof. Code § 19317 (New): Actions of a Licensee, etc. as Lawful Acts:

(a) The actions of a licensee, its employees, and its agents that are (1) permitted pursuant to both a state license and a license or permit issued by the local jurisdiction following the requirements of the applicable local ordinances, and (2) conducted in accordance with the requirements of this chapter and regulations adopted pursuant to this chapter, 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 both a state license and a local license or permit following the requirements of the 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.

Bus. & Prof. Code § 19318 (New): Civil and Criminal Penalties for Violations:

(a) A person engaging in commercial cannabis activity without a license required by this chapter shall be subject to civil penalties of up to twice the amount of the license fee for each violation, and the court may order the destruction of medical cannabis associated with that violation in accordance with H&S Code § 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 “Medical Cannabis Fines and Penalties Account” established pursuant to B&P Code § 19351.

(b) If an action for civil penalties is brought against a licensee pursuant to this chapter by the Attorney General on behalf of the people, the penalty collected shall be deposited into the “Medical Cannabis Fines and Penalties Account” established pursuant to B&P Code § 19351. If the action is brought by a district attorney or county counsel, the penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If the action is brought by a city attorney or city prosecutor, the penalty collected shall be paid to the treasurer of the city or city and county in which the judgment was entered. If the action is brought by a city attorney and is adjudicated in a superior court located in the unincorporated area or another city in the same county, the penalty shall be paid one-half to the treasurer of the city in which the complaining attorney has jurisdiction and one-half to the treasurer of the county in which the judgment is entered.

(c) Notwithstanding subd. (a), criminal penalties shall continue to apply to an unlicensed person engaging in commercial cannabis activity in violation of this chapter, including, but not limited to, those individuals covered under H&S Code § 11362.7.

Bus. & Prof. Code § 19319 (New): Exemptions for Qualified Patients and Primary Caregivers with Limited Use or Production of Cannabis:

(a) A qualified patient, as defined in H&S Code § 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 chapter.

(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 Code § 11362.7, but who does not receive remuneration for these activities except for compensation in full compliance with H&S Code § 11362.765(c), is exempt from the licensure requirements of this chapter.

Bus. & Prof. Code § 19320 (New): Requirement for a State License and Local Permit:

(a) Licensing authorities administering this chapter may issue state licenses only to qualified applicants engaging in commercial cannabis activity pursuant to this chapter. Upon the date of implementation of regulations by the licensing authority, no person shall engage in commercial cannabis activity without possessing both a state license and a local permit, license, or other authorization. A licensee shall not commence activity under the authority of a state license until the applicant has obtained, in addition to the state license, a license or permit from the local jurisdiction in which he or she proposes to operate, following the requirements of the applicable local ordinance.

(b) Revocation of a local license, permit, or other authorization shall terminate the ability of a medical cannabis business to operate within that local jurisdiction until the local jurisdiction reinstates or reissues the local license, permit, or other required authorization. Local authorities shall notify the bureau upon revocation of a local license. The bureau shall inform relevant licensing authorities.

(c) Revocation of a state license shall terminate the ability of a medical cannabis licensee to operate within California until the licensing authority reinstates or reissues the state license. Each licensee shall obtain a separate license for each location where it engages in commercial medical cannabis activity. However, transporters only need to obtain licenses for each physical location where the licensee conducts business while not in transport, or any equipment that is not currently transporting medical cannabis or medical cannabis products, permanently resides.

(d) In addition to the provisions of this chapter, local jurisdictions retain the power to assess fees and taxes, as applicable, on facilities that are licensed pursuant to this chapter and the business activities of those licensees.

(e) Nothing in this chapter shall be construed to supersede or limit state agencies, including the State Water Resources Control Board and Department of Fish and Wildlife, from establishing fees to support their medical cannabis regulatory programs.

Bus. & Prof. Code § 19321 (New): Promulgation of Rules by the Department of Consumer Affairs, Department of Food and Agriculture, the State Department of Public Health; Annual Renewal of Licenses; Compliance with Zoning Ordinances; City of Los Angeles Proposition D:

(a) The Department of Consumer Affairs, the Department of Food and Agriculture, and the State Department of Public Health shall promulgate regulations for implementation of their respective responsibilities in the administration of this chapter.

(b) A license issued pursuant to this section shall be valid for 12 months from the date of issuance. The license shall be renewed annually. Each licensing authority shall establish procedures for the renewal of a license.

(c) Notwithstanding B&P Code § 19320(a), a facility or entity that is operating in compliance with local zoning ordinances and other state and local requirements on or before January 1, 2018, may continue its operations until its application for licensure is approved or denied pursuant to this chapter. In issuing licenses, the licensing authority shall prioritize any facility or entity that can demonstrate to the authority’s satisfaction that it was in operation and in good standing with the local jurisdiction by January 1, 2016.

(d) Issuance of a state license or a determination of compliance with local law by the licensing authority shall in no way limit the ability of the City of Los Angeles to prosecute any person or entity for a violation of, or otherwise enforce, Proposition D, approved by the voters of the City of Los Angeles on the May 21, 2013, ballot for the city, or the city’s zoning laws. Nor may issuance of a license or determination of compliance with local law by the licensing authority be deemed to establish, or be relied upon, in determining satisfaction with the immunity requirements of Proposition D or local zoning law, in court or in any other context or forum.

Proposition D, which was enacted by the voters of Los Angeles on May 21, 2013, as City Ordinance No. 182580, “repealed the existing sections of the municipal code relating to medical marijuana, and enacted new provisions. Under Prop D, a ‘medical marijuana business’ is defined as any ‘location where marijuana is cultivated, processed, distributed, and delivered, or given away to a qualified patient . . . or a primary caregiver.’ (L.A. Mun. Code, § 45.19.6.1, subd. A.) Prop D then provides that it is ‘unlawful to own, establish, operate, use, or permit the establishment or operation of a medical marijuana business . . .’ in the City. (L.A. Mun. Code, § 45.19.6.2, subd. A.) The next section of Prop D, however, provides an exception for medical marijuana businesses that meet a litany of requirements, the most important of which for our purposes is that the medical marijuana business must have timely registered under both the Interim Control Ordinance and the Grandfather/Lottery Ordinance. (L.A. Mun. Code, § 45.19.6.3, subds. B. & C.) Other requirements include restrictions on hours of operation, limits on proximity to land zoned residential, and limits on proximity to schools, parks, religious institutions, and other medical marijuana businesses. (L.A. Mun. Code, § 45.19.6.3, subds. G., K. & L.)” (Safe Life Caregivers v. City of Los Angeles (Jan. 13, 2016) __ Cal.App.4th __, __ [2016 Cal. App. LEXIS 21].)

In Safe Life Caregivers, supra, the Second District Court of Appeal (Div. 8) upheld the constitutionality of Prop. D, ruling that there is no constitutional or statutory right to possess, cultivate, distribute, or transport marijuana for medical purposes. The Court also held that Proposition D’s enactment by the voters of Los Angeles did not violate Gov’t. Code § 65804 (the California Zoning Act), which imposes minimal procedural standards for city zoning hearings, or L.A. Charter § 588, which sets forth requirements for the adoption, amendment, or repeal of ordinances. Any failure to follow the Zoning Act’s notice and hearing requirements for city council-enacted ordinances had no effect on the validity of Proposition D.

Bus. & Prof. Code § 19322 (New): Licensing Requirements:

(a) A person or entity shall not submit an application for a state license issued by the department pursuant to this chapter unless that person or entity has received a license, permit, or authorization by a local jurisdiction. An applicant for any type of state license issued pursuant to this chapter shall do all of the following:

(1) Electronically submit to the Department of Justice fingerprint images and related information required by the Department of Justice for the purpose of obtaining information as to the existence and content of a record of state or federal convictions and arrests, and 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 own recognizance, pending trial or appeal.

(A) The Department of Justice shall provide a response to the licensing authority pursuant to P.C. § 11105(p)(1).

(B) The licensing authority shall request from the Department of Justice subsequent notification service, as provided pursuant to P.C. § 11105.2, for applicants.

(C) 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 documentation issued by the local jurisdiction in which the proposed business is operating certifying that the applicant is or will be in compliance with all local ordinances and regulations.

(3) Provide evidence of the legal right to occupy and use the proposed location. For an applicant seeking a cultivator, distributor, manufacturing, or dispensary license, provide a statement from the owner of real property or their agent where the cultivation, distribution, manufacturing, or dispensing commercial medical cannabis activities will occur, as proof to demonstrate the landowner has acknowledged and consented to permit cultivation, distribution, manufacturing, or dispensary activities to be conducted on the property by the tenant applicant.

(4) If the application is for a cultivator or a dispensary, provide evidence that the proposed location is located beyond at least a 600-foot radius from a school, as required by H&S Code § 11362.768.

(5) Provide a statement, signed by the applicant under penalty of perjury, that the information provided is complete, true, and accurate.

(6)

(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 purposes of this paragraph, “supervisor” means an individual having authority, in the interest of the licensee, 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.

(7) Provide the applicant’s seller’s permit number issued pursuant to Rev. & Tax. Code §§ 6001 et seq., or indicate that the applicant is currently applying for a seller’s permit.

(8) Provide any other information required by the licensing authority.

(9) 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 (Lab. Code §§ 1140 et seq.), to the extent not prohibited by law.

(10) For an applicant seeking licensure as a testing laboratory, register with the State Department of Public Health and provide any information required by the State Department of Public Health.

(11) Pay all applicable fees required for licensure by the licensing authority.

(b) For applicants seeking licensure to cultivate, distribute, or manufacture medical cannabis, the application shall also include 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.

Bus. & Prof. Code § 19323 (New): Grounds for Denying a License:

(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 chapter.

(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 to comply with the provisions of this chapter or any rule or regulation adopted pursuant to this chapter, including but not limited to, any requirement imposed to protect natural resources, instream flow, and water quality pursuant to B&P Code § 19332(a).

(2) Conduct that constitutes grounds for denial of licensure pursuant to B&P Code §§ 489 et seq.

(3) A local agency has notified the licensing authority that a licensee or applicant within its jurisdiction is in violation of state rules and regulation relating to commercial cannabis activities, and the licensing authority, through an investigation, has determined that the violation is grounds for termination or revocation of the license. The licensing authority shall have the authority to collect reasonable costs, as determined by the licensing authority, for investigation from the licensee or applicant.

(4) The applicant has failed to provide information required by the licensing authority.

(5) The applicant 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 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, and shall evaluate the suitability of the applicant 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 felony conviction for the illegal possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance.

(B) A “violent felony” conviction, as specified in P.C. § 667.5(c).

(C) A “serious felony” conviction, as specified in P.C. § 1192.7.

(D) A felony conviction involving fraud, deceit, or embezzlement.

(6) The applicant, or any of its officers, directors, or owners, is a licensed physician making patient recommendations for medical cannabis pursuant to H&S § 11362.7.

(7) The applicant or any of its officers, directors, or owners has been subject to fines or penalties for cultivation or production of a controlled substance on public or private lands pursuant to F&G Code §§ 12025 or 12025.1.

(8) 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 unlicensed commercial medical cannabis activities or has had a license revoked under this chapter in the three years immediately preceding the date the application is filed with the licensing authority.

(9) Failure to obtain and maintain a valid seller’s permit required pursuant to Rev. & Tax. Code §§ 6001 et. seq.

Bus. & Prof. Code § 19324 (New): Appeal of Denial of a License:

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 Govt. Code §§ 11500 et seq., and the director of each licensing authority shall have all the powers granted therein.

Bus. & Prof. Code § 19325 (New): Exceptions to Grounds for Denial of a 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. § P.C. §§ 4852.01 et seq.

(b) A conviction that was subsequently dismissed pursuant to P.C. § P.C. §§ 1203.4, 1203.4a, or 1203.41.

Bus. & Prof. Code § 19326 (New): Transportation of Medical Cannabis; Quality Assurance Testing:

(a) A person other than a licensed transporter shall not transport medical cannabis or medical cannabis products from one licensee to another licensee, unless otherwise specified in this chapter.

(b) All licensees holding cultivation or manufacturing licenses shall send all medical cannabis and medical cannabis products cultivated or manufactured to a distributor, as defined in B&P Code § 19300.5, for quality assurance and inspection by the Type 11 licensee and for a batch testing by a Type 8 licensee prior to distribution to a dispensary. Those licensees holding a Type 10A license in addition to a cultivation license or a manufacturing license shall send all medical cannabis and medical cannabis products to a Type 11 licensee for presale inspection and for a batch testing by a Type 8 licensee prior to dispensing any product. The licensing authority shall fine a licensee who violates this subdivision in an amount determined by the licensing authority to be reasonable.

(c)

(1) Upon receipt of medical cannabis or medical cannabis products by a holder of a cultivation or manufacturing license, the Type 11 licensee shall first inspect the product to ensure the identity and quantity of the product and then ensure a random sample of the medical cannabis or medical cannabis product is tested by a Type 8 licensee prior to distributing the batch of medical cannabis or medical cannabis products.

(2) Upon issuance of a certificate of analysis by the Type 8 licensee that the product is fit for manufacturing or retail, all medical cannabis and medical cannabis products shall undergo a quality assurance review by the Type 11 licensee prior to distribution to ensure the quantity and content of the medical cannabis or medical cannabis product, and for tracking and taxation purposes by the state. Licensed cultivators and manufacturers shall package or seal all medical cannabis and medical cannabis products in tamper-evident packaging and use a unique identifier, as prescribed by the Department of Food and Agriculture, for the purpose of identifying and tracking medical cannabis or medical cannabis products. Medical cannabis and medical cannabis products shall be labeled as required by B&P Code § 19347. All packaging and sealing shall be completed prior to medical cannabis or medical cannabis products being transported or delivered to a licensee, qualified patient, or caregiver.

(3) This section does not limit the ability of licensed cultivators, manufacturers, and dispensaries to directly enter into contracts with one another indicating the price and quantity of medical cannabis or medical cannabis products to be distributed. However, a Type 11 licensee responsible for executing the contract is authorized to collect a fee for the services rendered, including, but not limited to, costs incurred by a Type 8 licensee, as well as applicable state or local taxes and fees.

(d) Medical cannabis and medical cannabis products shall be tested by a registered testing laboratory, prior to retail sale or dispensing, as follows:

(1) Medical cannabis from dried flower shall, at a minimum, be tested for concentration, pesticides, mold, and other contaminants.

(2) Medical cannabis extracts shall, at a minimum, be tested for concentration and purity of the product.

(3) This chapter shall not prohibit a licensee from performing on-site testing for the purposes of quality assurance of the product in conjunction with reasonable business operations. On-site testing by the licensee shall not be certified by the State Department of Public Health.

(e) All commercial cannabis activity shall be conducted between licensees, when these are available.

Bus. & Prof. Code § 19327 (New): Required Records of Commercial Cannabis Activity:

(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) The bureau may examine the books and 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 chapter. All inspections shall be conducted during standard business hours of the licensed facility or at any other reasonable time.

(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 agency 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 chapter.

(f) If a licensee or an 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 thirty thousand dollars ($30,000) per individual violation.

Bus. & Prof. Code § 19328 (New): License Types Held:

(a) A licensee may only hold a state license in up to two separate license categories, as follows:

(1) Type 1, 1A, 1B, 2, 2A, or 2B licensees may also hold either a Type 6 or 7 state license.

(2) Type 6 or 7 licensees, or a combination thereof, may also hold either a Type 1, 1A, 1B, 2, 2A, or 2B state license.

(3) Type 6 or 7 licensees, or a combination thereof, may also hold a Type 10A state license.

(4) Type 10A licensees may also hold either a Type 6 or 7 state license, or a combination thereof.

(5) Type 1, 1A, 1B, 2, 2A, or 2B licensees, or a combination thereof, may also hold a Type 10A state license.

(6) Type 10A licensees may apply for Type 1, 1A, 1B, 2, 2A, or 2B state license, or a combination thereof.

(7) Type 11 licensees shall apply for a Type 12 state license, but shall not apply for any other type of state license.

(8) Type 12 licensees may apply for a Type 11 state license.

(9) A Type 10A licensee may apply for a Type 6 or 7 state license and hold a 1, 1A, 1B, 2, 2A, 2B, 3, 3A, 3B, 4 or combination thereof if, under the 1, 1A, 1B, 2, 2A, 2B, 3, 3A, 3B, 4 or combination of licenses thereof, no more than four acres of total canopy size of cultivation by the licensee is occurring throughout the state during the period that the respective licenses are valid. All cultivation pursuant to this section shall comply with local ordinances. This paragraph shall become inoperative on January 1, 2026.

(b) Except as provided in subd. (a), a person or entity that holds a state license is prohibited from licensure for any other activity authorized under this chapter, and is prohibited from holding an ownership interest in real property, personal property, or other assets associated with or used in any other license category.

(c)

(1) In a jurisdiction that adopted a local ordinance, prior to July 1, 2015, allowing or requiring qualified businesses to cultivate, manufacture, and dispense medical cannabis or medical cannabis products, with all commercial cannabis activity being conducted by a single qualified business, upon licensure that business shall not be subject to subd. (a) if it meets all of the following conditions:

(A) The business was cultivating, manufacturing, and dispensing medical cannabis or medical cannabis products on July 1, 2015, and has continuously done so since that date.

(B) The business has been in full compliance with all applicable local ordinances at all times prior to licensure.

(C) The business is registered with the State Board of Equalization.

(2) A business licensed pursuant to para. (1) is not required to conduct all cultivation or manufacturing within the bounds of a local jurisdiction, but all cultivation and manufacturing shall have commenced prior to July 1, 2015, and have been in full compliance with applicable local ordinances.

(d) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

Bus. & Prof. Code § 19329 (New): Licensee as a Retailer of Alcoholic Beverages:

A licensee shall not also be licensed as a retailer of alcoholic beverages pursuant to B&P Code §§ 23000 et seq.

Bus. & Prof. Code § 19330 (New): Employer’s Right and Obligation to a Drug and Alcohol Free Workplace:

This chapter and H&S Code §§ 11357 et seq., and §§ 11362.7 et seq., shall not interfere with an employer’s rights and obligations 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.

Bus. & Prof. Code § 19331 (New): Pesticides:

Findings and proposal for the Department of Pesticide Regulation to provide guidance, on whether the pesticides currently used at most cannabis cultivation sites are actually safe for use on cannabis intended for human consumption.

Bus. & Prof. Code § 19332 (New): Licensing of Cultivation Sites:

(a) The Department of Food and Agriculture shall promulgate regulations governing the licensing of indoor and outdoor cultivation sites.

(b) The Department of Pesticide Regulation, in consultation with the Department of Food and Agriculture, shall develop standards for the use of pesticides in cultivation, and maximum tolerances for pesticides and other foreign object residue in harvested cannabis.

(c) The State Department of Public Health shall develop standards for the production and labeling of all edible medical cannabis products.

(d) The Department of Food and Agriculture, in consultation with the Department of Fish and Wildlife and the State Water Resources Control Board, shall 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.

(e) The Department of Food and Agriculture shall have the authority necessary for the implementation of the regulations it adopts pursuant to this chapter. The regulations shall do all of the following:

(1) Provide that weighing or measuring devices used in connection with the sale or distribution of medical cannabis are required to meet standards equivalent to B&P Code §§ 12001 et seq.

(2) Require that cannabis cultivation by licensees is conducted in accordance with state and local laws related to land conversion, grading, electricity usage, water usage, agricultural discharges, and similar matters. Nothing in this chapter, and no regulation adopted by the department, shall be construed to supersede or limit the authority of the State Water Resources Control Board, regional water quality control boards, or the Department of Fish and Wildlife to implement and enforce their statutory obligations or to adopt regulations to protect water quality, water supply, and natural resources.

(3) Establish procedures for the issuance and revocation of unique identifiers for activities associated with a cannabis cultivation license, pursuant to B&P §§ 19337 et seq. 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 §§ 19337 et seq.

(f) The Department of Pesticide Regulation, in consultation with the State Water Resources Control Board, shall promulgate regulations that require that the application of pesticides or other pest control in connection with the indoor or outdoor cultivation of medical cannabis meets standards equivalent to Food & Agri. Code §§ 11401 et seq.

(g) State cultivator license types issued by the Department of Food and Agriculture include:

(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 less than or equal to 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 less than or equal to 5,000 square feet of total canopy size on one premises.

(4) 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.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(10) Type 4, or “nursery,” for cultivation of medical cannabis solely as a nursery. Type 4 licensees may transport live plants.

Bus. & Prof. Code § 19332.5 (New): Certified Organic Designation and Certification Program for Medical Marijuana:

(a) Not later than January 1, 2020, the Department of Food and Agriculture in conjunction with the bureau, shall make available a certified organic designation and organic certification program for medical marijuana, if permitted under federal law and the National Organic Program (The Federal Organic Foods Production Act of 1990 § 6517 (7 U.S.C. §§ 6501 et seq.)), and H&S §§ 110810 et seq.

(b) The bureau may establish appellations of origin for marijuana grown in California.

(c) It is unlawful for medical marijuana to be marketed, labeled, or sold as grown in a California county when the medical marijuana was not grown in that county.

(d) It is unlawful to use the name of a California county in the labeling, marketing, or packaging of medical marijuana products unless the product was grown in that county.

Bus. & Prof. Code § 19333 (New): Employee Wages:

An employee engaged in commercial cannabis cultivation activity shall be subject to Wage Order 4-2001 of the Industrial Welfare Commission.

Bus. & Prof. Code § 19334 (New): State licenses issued by the Department of Consumer Affairs; Transportation Security Requirements; Reporting of Theft Losses:

(a) State licenses to be issued by the Department of Consumer Affairs are as follows:

(1) “Dispensary,” as defined in this chapter. This license shall allow for delivery pursuant to B&P Code § 19340.

(2) “Distributor,” for the distribution of medical cannabis and medical cannabis products from manufacturer to dispensary. A Type 11 licensee shall hold a Type 12, or transporter, license and register each location where product is stored for the purposes of distribution. A Type 11 licensee shall not hold a license in a cultivation, manufacturing, dispensing, or testing license category and shall not own, or have an ownership interest in, a facility licensed in those categories other than a security interest, lien, or encumbrance on property that is used by a licensee. A Type 11 licensee shall be bonded and insured at a minimum level established by the licensing authority.

(3) “Transport,” for transporters of medical cannabis or medical cannabis products between licensees. A Type 12 licensee shall be bonded and insured at a minimum level established by the licensing authority.

(4) “Special dispensary status” for dispensers who have no more than three licensed dispensary facilities. This license shall allow for delivery where expressly authorized by local ordinance.

(b) The bureau shall establish minimum security requirements for the commercial transportation and delivery of medical cannabis and products.

(c) A licensed dispensary shall implement sufficient security measures to both deter and prevent unauthorized entrance into areas containing medical cannabis or medical cannabis products and theft of medical cannabis or medical cannabis products at the dispensary. These security measures shall include, but not be limited to, all of the following:

(1) Preventing individuals from remaining on the premises of the dispensary if they are not engaging in activity expressly related to the operations of the dispensary.

(2) Establishing limited access areas accessible only to authorized dispensary personnel.

(3) Storing all finished medical cannabis and medical cannabis products in a secured and locked room, safe, or vault, and in a manner as to prevent diversion, theft, and loss, except for limited amounts of cannabis used for display purposes, samples, or immediate sale.

(d) A dispensary 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 involving the dispensary or any agent or employee of the dispensary.

(3) The loss or unauthorized alteration of records related to cannabis, registered qualifying patients, primary caregivers, or dispensary employees or agents.

(4) Any other breach of security.

Bus. & Prof. Code § 19335 (New): Unique Identifier and Track and Trace Program:

(a) The Department of Food and Agriculture, in consultation with the bureau, shall establish a “track and trace program” for reporting the movement of medical marijuana items throughout the distribution chain that utilizes a unique identifier pursuant to H&S § 11362.777, and 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 H&S § 11362.777.

(b)

(1) The Department of Food and Agriculture shall create an electronic database containing the electronic shipping manifests which shall include, but not be limited to, the following information:

(A) The quantity, or weight, and variety of products shipped.

(B) The estimated times of departure and arrival.

(C) The quantity, or weight, and variety 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 H&S § 11362.777 issued by the licensing authority for all licensees involved in the shipping process, including cultivators, transporters, distributors, and dispensaries.

(2)

(A) The database shall be designed to flag irregularities for all licensing authorities in this chapter to investigate. All licensing authorities pursuant to this chapter may access the database and share information related to licensees under this chapter, including social security and individual taxpayer identifications notwithstanding B&P § 30.

(B) The Department of Food and Agriculture 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 of Food and Agriculture.

(5) The Department of Food and Agriculture shall be authorized to enter into memoranda of understandings with licensing authorities for data sharing purposes, as deemed necessary by the Department of Food and Agriculture.

(6) Information received and contained in records kept by the Department of Food and Agriculture or licensing authorities for the purposes of administering this section are confidential and shall not be disclosed pursuant to the California Public Records Act (Govt. Code §§ 6250 et seq.), 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.

(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 chapter.

Bus. & Prof. Code § 19336 (New): Application of the Revenue and Taxation Code:

(a) Rev. & Tax. Code §§ 55121 et seq. shall apply with respect to the bureau’s collection of the fees, civil fines, and penalties imposed pursuant to this chapter.

(b) Rev. & Tax. Code §§ 55381 et seq. shall apply with respect to the disclosure of information under this chapter.

Bus. & Prof. Code § 19337 (New): Regulation of Licensed Transporters:

(a) A licensee authorized to transport medical cannabis and medical cannabis products between licenses shall do so only as set forth in this chapter.

(b) Prior to transporting medical cannabis or medical cannabis products, a licensed transporter of medical cannabis or medical cannabis products shall do both of the following:

(1) Complete an electronic shipping manifest as prescribed by the licensing authority. The shipping manifest must include the unique identifier, pursuant to Section 11362.777 of the Health and Safety Code, 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 medical 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 § 19335.

(c) During transportation, the licensed transporter 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.

(d) 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.

(e) Upon receipt of the transported shipment, the licensee receiving the shipment shall submit to the licensing agency a record verifying receipt of the shipment and the details of the shipment.

(f) Transporting, or arranging for or facilitating the transport of, medical cannabis or medical cannabis products in violation of this chapter is grounds for disciplinary action against the license.

Bus. & Prof. Code § 19338 (New): Transporting Out of State and on Public Roads:

(a) This chapter shall not be construed to authorize or permit a licensee to transport or cause to be transported cannabis or cannabis products outside the state, unless authorized by federal law.

(b) A local jurisdiction shall not prevent transportation of medical cannabis or medical cannabis products on public roads by a licensee transporting medical cannabis or medical cannabis products in compliance with this chapter.

Bus. & Prof. Code § 19340 (New): Deliveries of Medical Cannabis:

(a) Deliveries, as defined in this chapter, can only be made by a dispensary and in a city, county, or city and county that does not explicitly prohibit it by local ordinance.

(b) Upon approval of the licensing authority, a licensed dispensary that delivers medical cannabis or medical cannabis products shall comply with both of the following:

(1) The city, county, or city and county in which the licensed dispensary is located, and in which each delivery is made, do not explicitly by ordinance prohibit delivery, as defined in B&P Code § 19300.5.

(2) All employees of a dispensary delivering medical cannabis or medical cannabis products shall carry a copy of the dispensary’s current license authorizing those services with them during deliveries and the employee’s government-issued identification, and 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 chapter.

(c) A county shall have the authority to impose a tax, pursuant to B&P Code §§ 19348 et seq., on each delivery transaction completed by a licensee.

(d) During delivery, the licensee shall maintain a physical 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.

(e) The qualified patient or primary caregiver requesting the delivery shall maintain a copy of the delivery request and shall make it available, upon request, to the licensing authority and law enforcement officers.

(f) A local jurisdiction shall not prevent carriage of medical cannabis or medical cannabis products on public roads by a licensee acting in compliance with this chapter.

Bus. & Prof. Code § 19341 (New): Licensing of Cannabis Manufacturers & Testing Laboratories by the State Department of Public Health:

The State Department of Public Health shall promulgate regulations governing the licensing of cannabis manufacturers and testing laboratories. Licenses to be issued are as follows:

(a) “Manufacturing level 1,” for manufacturing sites that produce medical cannabis products using nonvolatile solvents.

(b) “Manufacturing level 2,” for manufacturing sites that produce medical cannabis products using volatile solvents. The State Department of Public Health shall limit the number of licenses of this type.

(c) “Testing,” for testing of medical cannabis and medical cannabis products. Testing licensees shall have their facilities licensed according to regulations set forth by the division. A testing licensee shall not hold a license in another license category of this chapter and shall not own or have ownership interest in a facility licensed pursuant to this chapter.

Bus. & Prof. Code § 19342 (New): Testing of Medical Cannabis and Products by Licensed Testing Laboratories:

(a) For the purposes of testing medical cannabis or medical cannabis products, licensees shall use a licensed testing laboratory that has adopted a standard operating procedure using methods consistent with general requirements for the competence of testing and calibration activities, including sampling, using standard methods established by the “International Organization for Standardization,” specifically “ISO/IEC 17020” and “ISO/IEC 17025,” to test medical cannabis and medical cannabis products that are approved by an accrediting body that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangement.

(b) An agent of a licensed testing laboratory shall obtain samples according to a statistically valid sampling method for each lot.

(c) A licensed testing laboratory shall analyze samples according to either of the following:

(1) The most current version of the cannabis inflorescence monograph published by the American Herbal Pharmacopoeia.

(2) Scientifically valid methodology that is demonstrably equal or superior to paragraph (1), in the opinion of the accrediting body.

(d) If a test result falls outside the specifications authorized by law or regulation, the licensed testing laboratory shall follow a standard operating procedure to confirm or refute the original result.

(e) A licensed testing laboratory shall destroy the remains of the sample of medical cannabis or medical cannabis product upon completion of the analysis.

Bus. & Prof. Code § 19343 (New): Licensing Laboratory Minimum Requirements:

A licensed testing laboratory shall not handle, test, or analyze medical cannabis or medical cannabis products unless the licensed testing laboratory meets all of the following:

(a) Is registered by the State Department of Public Health.

(b) Is independent from all other persons and entities involved in the medical cannabis industry.

(c) Follows the methodologies, ranges, and parameters that are contained in the scope of the accreditation for testing medical cannabis or medical cannabis products. The testing lab shall also comply with any other requirements specified by the State Department of Public Health.

(d) Notifies the State Department of Public Health within one business day after the receipt of notice of any kind that its accreditation has been denied, suspended, or revoked.

(e) Has established standard operating procedures that provide for adequate chain of custody controls for samples transferred to the licensed testing laboratory for testing.

Bus. & Prof. Code § 19344 (New): Certificate of Analysis Requirements:

(a) A licensed testing laboratory shall issue a certificate of analysis for each lot, with supporting data, to report both of the following:

(1) Whether the chemical profile of the lot conforms to the specifications of the lot for compounds, including, but not limited to, all of the following:

(A) Tetrahydrocannabinol (THC).

(B) Tetrahydrocannabinolic Acid (THCA).

(C) Cannabidiol (CBD).

(D) Cannabidiolic Acid (CBDA).

(E) The terpenes described in the most current version of the cannabis inflorescence monograph published by the American Herbal Pharmacopoeia.

(F) Cannabigerol (CBG).

(G) Cannabinol (CBN).

(H) Any other compounds required by the State Department of Public Health.

(2) That the presence of contaminants does not exceed the levels that are the lesser of either the most current version of the “American Herbal Pharmacopoeia monograph” or the State Department of Public Health. 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 impurity, including total aerobic microbial count, total yeast mold count, P. aeruginosa, aspergillus spp., s. aureus, aflatoxin B1, B2, G1, or G2, or ochratoxin A.

(D) Whether the batch is within specification for odor and appearance.

(b) Residual levels of volatile organic compounds shall be below the lesser of either the specifications set by the United States Pharmacopeia (U.S.P. Chapter 467) or those set by the State Department of Public Health.

Bus. & Prof. Code § 19345 (New): Receipt of Medical Cannabis or Products from Other Than Licensed Facilities:

(a) Except as provided in this chapter, a licensed testing laboratory shall not acquire or receive medical cannabis or medical cannabis products except from a licensed facility in accordance with this chapter, and shall not distribute, sell, deliver, transfer, transport, or dispense medical cannabis or medical cannabis products, from which the medical cannabis or medical cannabis products were acquired or received. All transfer or transportation shall be performed pursuant to a specified chain of custody protocol.

(b) A licensed testing laboratory may receive and test samples of medical cannabis or medical cannabis products from a qualified patient or primary caregiver only if he or she presents his or her valid recommendation for cannabis for medical purposes from a physician. A licensed testing laboratory shall not certify samples from a qualified patient or caregiver for resale or transfer to another party or licensee. All tests performed by a licensed testing laboratory for a qualified patient or caregiver shall be recorded with the name of the qualified patient or caregiver and the amount of medical cannabis or medical cannabis product received.

(c) The State Department of Public Health shall develop procedures to ensure that testing of cannabis occurs prior to delivery to dispensaries or any other business, specify how often licensees shall test cannabis and that the cost of testing shall be borne by the licensed cultivators, and require destruction of harvested batches whose testing samples indicate noncompliance with health and safety standards promulgated by the State Department of Public Health, unless remedial measures can bring the cannabis into compliance with quality assurance standards as promulgated by the State Department of Public Health.

(d) The State Department of Public Health shall establish a licensing fee, and laboratories shall pay a fee to be licensed. Licensing fees shall not exceed the reasonable regulatory cost of the licensing activities.

Bus. & Prof. Code § 19347 (New): Labeling of Medical Cannabis Products:

(a) Prior to delivery or sale at a dispensary, medical cannabis products shall be labeled and in a tamper-evident package. Labels and packages of medical cannabis products shall meet the following requirements:

(1) Medical cannabis packages and labels shall not be made to be attractive to children.

(2) All medical cannabis product labels shall include the following information, prominently displayed and in a clear and legible font:

(A) Manufacture date and source.

(B) The statement “SCHEDULE I CONTROLLED SUBSTANCE.”

(C) The statement “KEEP OUT OF REACH OF CHILDREN AND ANIMALS” in bold print.

(D) The statement “FOR MEDICAL USE ONLY.”

(E) The statement “THE INTOXICATING EFFECTS OF THIS PRODUCT MAY BE DELAYED BY UP TO TWO HOURS.”

(F) The statement “THIS PRODUCT MAY IMPAIR THE ABILITY TO DRIVE OR OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.”

(G) For packages containing only dried flower, the net weight of medical cannabis in the package.

(H) A warning if nuts or other known allergens are used.

(I) 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.

(J) Clear indication, in bold type, that the product contains medical cannabis.

(K) Identification of the source and date of cultivation and manufacture.

(L) Any other requirement set by the bureau.

(M) Information associated with the unique identifier issued by the Department of Food and Agriculture pursuant to H&S § 11362.777.

(Editor’s Note: Why no warnings concerning use by pregnant women?)

(b) Only generic food names may be used to describe edible medical cannabis products.

Bus. & Prof. Code § 19348 (New): Taxation:

(a)

(1) A county may impose a tax on the privilege of cultivating, dispensing, producing, processing, preparing, storing, providing, donating, selling, or distributing medical cannabis or medical cannabis products by a licensee operating pursuant to this chapter.

(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 para. (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 subd. (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 tax imposed under an ordinance conforming to the provisions of Rev. & Tax. Code §§ 7202 & 7203.

Bus. & Prof. Code § 19350 (New): Scale of Application, Licensing, & Renewal Fees:

Each licensing authority shall establish a scale of application, licensing, and renewal fees, based upon the cost of enforcing this chapter, 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 chapter. The licensure fee may vary depending upon the varying costs associated with administering the various regulatory requirements of this chapter 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 § 19335, but shall not exceed the reasonable regulatory costs to the licensing authority.

(b) The total fees assessed pursuant to this chapter shall be set at an amount that will fairly and proportionately generate sufficient total revenue to fully cover the total costs of administering this chapter.

(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 “Medical Marijuana Regulation and Safety Act Fund.” Moneys in the licensing authority fee accounts shall be used, upon appropriation of the Legislature, by the designated licensing authority for the administration of this chapter.

Bus. & Prof. Code § 19351 (New): The Medical Marijuana Regulation and Safety Act Fund:

(a) The Medical Marijuana Regulation and Safety Act Fund is hereby established within the State Treasury. Moneys in the fund shall be available upon appropriation by the Legislature. Notwithstanding Govt. Code § 16305.7, the fund shall include any interest and dividends earned on the moneys in the fund.

(b)

(1) Funds for the establishment and support of the regulatory activities pursuant to this chapter shall be advanced as a General Fund or special fund loan, and shall be repaid by the initial proceeds from fees collected pursuant to this chapter or any rule or regulation adopted pursuant to this chapter, by January 1, 2022. Should the initial proceeds from fees not be sufficient to repay the loan, moneys from the “Medical Cannabis Fines and Penalties Account” shall be made available to the bureau, by appropriation of the Legislature, to repay the loan.

(2) 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 chapter.

(3) The Director of Finance may provide an initial operating loan from the General Fund to the “Medical Marijuana Regulation and Safety Act Fund” that does not exceed ten million dollars ($10,000,000).

(c) Except as otherwise provided, all moneys collected pursuant to this chapter as a result of fines or penalties imposed under this chapter shall be deposited directly into the “Medical Marijuana Fines and Penalties Account,” which is hereby established within the fund, and shall be available, upon appropriation by the Legislature to the bureau, for the purposes of funding the enforcement grant program pursuant to subd. (d).

(d)

(1) The bureau shall establish a grant program to allocate moneys from the “Medical Cannabis Fines and Penalties Account” to state and local entities for the following purposes:

(A) To assist with medical cannabis regulation and the enforcement of this chapter and other state and local laws applicable to cannabis activities.

(B) For allocation to state and local agencies and law enforcement to remedy the environmental impacts of cannabis cultivation.

(2) The costs of the grant program under this subdivision shall, upon appropriation by the Legislature, be paid for with moneys in the “Medical Cannabis Fines and Penalties Account.”

(3) The grant program established by this subdivision shall only be implemented after the loan specified in this section is repaid.

Bus. & Prof. Code § 19352 (New): Appropriation of Operating Funds:

The sum of ten million dollars ($10,000,000) is hereby appropriated from the “Medical Marijuana Regulation and Safety Act Fund” to the Department of Consumer Affairs to begin the activities of the Bureau of Medical Marijuana Regulation. Funds appropriated pursuant to this section shall not include moneys received from fines or penalties.

Bus. & Prof. Code § 19353 (New): Annual Reports of the Licensing Authorities:

Beginning on March 1, 2023, and on or before March 1 of each following year, each licensing authority shall prepare and submit to the Legislature an annual report on the authority’s activities 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 medical 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 and type of enforcement activities conducted by the licensing authorities and by local law enforcement agencies in conjunction with the licensing authorities or the bureau.

(e) The number, type, and amount of penalties, fines, and other disciplinary actions taken by the licensing authorities.

Bus. & Prof. Code § 19354 (New): Study on Effect Upon Motor Skills:

The bureau shall contract with the California Marijuana Research Program, known as the “Center for Medicinal Cannabis Research,” authorized pursuant to H&S Code § 11362.9, to develop a study that identifies the impact that cannabis has on motor skills.

Bus. & Prof. Code § 19355 (New): Confidentiality of Patient Records:

(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 (Govt. Code §§ 6250 et seq.), 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., Civil Code §§ 56 et seq., 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.

Bus. & Prof. Code § 19360 (New): Civil & Criminal Penalties for Violations:

(a) A person engaging in cannabis activity without a license and associated unique identifiers required by this chapter shall be subject to civil penalties of up to twice the amount of the license fee for each violation, and the department, state or local authority, or court may order the destruction of medical cannabis associated with that violation. Each day of operation shall constitute a separate violation of this section. All civil penalties imposed and collected pursuant to this section shall be deposited into the “Marijuana Production and Environment Mitigation Fund” established pursuant to Rev. & Tax. Code § 31013.

(b) If an action for civil penalties is brought against a licensee pursuant to this chapter by the Attorney General, the penalty collected shall be deposited into the General Fund. If the action is brought by a district attorney or county counsel, the penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If the action is brought by a city attorney or city prosecutor, the penalty collected shall be paid to the treasurer of the city or city and county in which the judgment was entered. If the action is brought by a city attorney and is adjudicated in a superior court located in the unincorporated area or another city in the same county, the penalty shall be paid one-half to the treasurer of the city in which the complaining attorney has jurisdiction and one-half to the treasurer of the county in which the judgment is entered.

(c) Notwithstanding subd. (a), criminal penalties shall continue to apply to an unlicensed person or entity engaging in cannabis activity in violation of this chapter, including, but not limited to, those individuals covered under H&S § 11362.7.

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.

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 (See attachment B), 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 (See attachment A), 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. (See attachment C)

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 (Dec. 1, 2015) __ Cal.App.4th __, __ [2015 Cal. App. LEXIS 1073].)

It is also clear under the terms of the statute that the defense does not include cases of 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.)

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 (May 27, 2015) __ Cal.App.4th __ [2015 Cal.App. LEXIS 461].)

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 Medical Marijuana Program Act (“MMPA”). (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153.)

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.)

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.)

1085-1094.)

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.)

A church, alleging that marijuana is a part of their religion and seeking to bar enforcement of the federal Controlled Substances Act (“CSA”) on the grounds that such enforcement violated the Religious Freedom Restoration Act, as far as the cultivation and consumption of marijuana is concerned, and at least where marijuana had been seized from the church on prior instances, has standing to challenge the future enforcement of the CSA on this issue. (Oklevueha Native America Church of Hawaii v. Holder (9th Cir. 2012) 676 F.3rd 829, 834-839.)

See 2012 U.S. Dist. LEXIS 182979 for further pre-trial proceedings at the federal District Court level.

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. Aug. 20, 2015) __ F.3rd __ [2015 U.S. App. LEXIS 14623].)

Federal Law: 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.)

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 recently 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.3d 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 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.)

Summary:

There are any number of divergent views as to the wisdom and practicality of Proposition 215 and H&S § 11362.5. 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 and 11362.7 et seq. 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, we will just have to wait and see.

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.

Attachment A

11362.5 H&S

Patient Questionnaire

A.) ILLNESS:

1. What illness(es) do you have that you treat with marijuana? ______________________________________________________

2. Approximately when did your illness (es) begin? _______________________________________________________________

3. What are the symptoms of this illness? __________________________________________________________________

B.) DOCTOR RECOMMENDATION:

1. Have you been examined by a licensed California physician for this illness? _________________________________________

2. What is the name, address, and phone number of the physician who examined you for your illness? _______________________

3. What date were you first examined by a physician for this illness? _________________________________________________

4. Did this doctor recommend the use of marijuana for the treatment of your illness? _____________________________________

5. When did your physician make this recommendation? ___________________________________________________________

6. How was the recommendation made? (written or oral) ________________________________________________________

7. How much marijuana did your physician recommend that you use? ______________________________________________

8. How often were you to use marijuana for your illness and for what length of time? __________________________________

9. How much marijuana did the physician recommend that you use? __________________________________________________

10. Are you taking any prescription medicines for your illness? May I see them?

_______________________________________

11. What prescription drugs did you use for your illness (es) prior to using marijuana?

____________________________________

12. Will you sign a waiver authorizing the police to examine your medical records and to interview your physician position their recommendation?

__________________________________________________________________

______________________

C). PRIMARY CAREGIVER INFORMATION:

1. Do you have a primary caregiver? __________________________________________________________________

2. What is the name, address and phone number of your primary caregiver? ____________________________________________

3. How long has he/she been your primary caregiver? _____________________________________________________________

4. What services does your primary caregiver provide? ____________________________________________________________

5. How often does your primary caregiver come to your residence to assist you? ________________________________________

6. Do you pay your primary caregiver for his/her services? _________________________________________________________

7. How did you initially come into contact with your primary caregiver? ______________________________________________

8. Does this primary caregiver provide you with marijuana for the treatment of your illness? ______________________________

9. Does this primary caregiver provide marijuana for free or do you have to pay a fee for the marijuana? ____________________

D). MARIJUANA USE / POSSESSION

1. When did you start using marijuana to treat your illness? _________________________________________________________

2. What quantity and form of marijuana has your physician recommended to treat your illness? __________________________________________________________________

_____________________________________

3. Are you following your physicians recommended dosages? _______________________________________________________

4. How do you use marijuana to treat your illness? ________________________________________________________________

5. What relief does marijuana provide to you? __________________________________________________________________

6. How much marijuana do you use in a 24-hour period for your illness? ______________________________________________

7. How frequently do you use marijuana for your illness? __________________________________________________________

8. If you previously utilized traditional medical treatments, why did you begin using marijuana? ___________________________

9. How long do you expect to use marijuana to treat your illness? ____________________________________________________

10. Where do you obtain your marijuana? __________________________________________________________________

11. How much marijuana do you obtain at one time? _______________________________________________________________

12. Do you “stock pile” quantities of marijuana? __________________________________________________________________

13. How you do store your marijuana? __________________________________________________________________

14. Do you keep any records of when you obtained and used marijuana for your illnesses? _________________________________

E.) MARIJUANA CULTIVATION

1. Do you grow your own marijuana? __________________________________________________________________

2. When did you start growing marijuana? __________________________________________________________________

3. Did you begin growing marijuana from seeds or cloned plants? ____________________________________________________

4. How did you determine the gender of your marijuana plants? ______________________________________________________

5. Where did you obtain the guidelines and knowledge to enable you to grow marijuana? _________________________________

6. How much usable marijuana do you expect to yield from each marijuana plant? _______________________________________

7. What part of the marijuana plant do you use to treat your illness? __________________________________________________

8. How mature are your marijuana plants before you use them for treatment of your illness? _______________________________

9. Do you keep records of your marijuana cultivation? May I have a copy of those records? ______________________________

NOTES:_________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Revised 2-6-01

ATTACHMENT B

11362.5 H&S

Caregiver Questionnaire

A.) PATIENTS:

Are you a primary caregiver who provides services to persons using marijuana for medicinal purposes? ___________________________________________________________________________________________________________

How long have you been a primary caregiver? _____________________________________________________________________

What formal training do you have qualifying you to be a primary caregiver?______________________________________________

Do you have any formal medical training? _____________________________________________________________________

What are the names, addresses and phone numbers of the patients for whom you are the primary caregiver? ____________________

Do you know the name, address and phone number of the California licensed physician who examined and recommended to each patient that they use marijuana for the treatment of their illnesses? ________________________

Do you know for a fact that a licensed California physician has examined each patient for the illness you are a primary caregiver for? ___________________________________________________________________________________________________________

Do you know the illness (es) your patient suffers from? ______________________________________________________________

Do you have a copy of the physician’s recommendation for patients authorizing them to use marijuana as a means of treating their illness? ____________________________________________________________________________________________________

Do you have a recommendation from the treating physician as to how much marijuana to give your patient? ____________________

11. How much marijuana does your patient need on a weekly basis to treat their illness? _______________________________________

12. Do you have written authorization from your patient designating you as their primary caregiver? _____________________________

13. How long have you been the primary caregiver for each one of these patients? ___________________________________________

14. What is the frequency of contact with your patients? ________________________________________________________________

15. What services do you specifically provide for your patients? __________________________________________________________

16. Do you keep written documentation such as records of the services you provide to your patients as a primary caregiver? May I have a copy of those records? ______________________________________________________________________________________

B.) MARIJUANA POSSESSION:

As a primary caregiver, how much marijuana do you furnish to your seriously ill patients? __________________________________

How and where do you store your marijuana? _____________________________________________________________________

How often do you replenish the supply of marijuana you provide to your patients as a primary caregiver? _____________________

Where do you obtain the marijuana you provide to patients as their primary caregiver? ____________________________________

Do you purchase this marijuana or is it given to you? _______________________________________________________________

Do you use marijuana yourself? ________________________________________________________________________________

If so, how often do you use marijuana? _____________________________________________________________________

C.) MARIJUANA CULTIVATION:

Do you grow marijuana? _____________________________________________________________________

Do you grow marijuana indoors or outside? ____________________________________________________________________

How long have you been growing marijuana? ___________________________________________________________________

Do you grow marijuana year round? _____________________________________________________________________

How many marijuana plants do you usually grow at one time? _____________________________________________________

How much usable marijuana do you expect each of your plants to yield? ________________________________________________

At what point of maturity do you start using your marijuana plants? ____________________________________________________

Did you start growing it from seeds or clones? ____________________________________________________________________

How did you learn to grow marijuana? _____________________________________________________________________

D.) FURNISHING MARIJUANA:

Do you furnish marijuana to the patients who have designated you as a primary caregiver? _________________________________

Do you currently have any patients who use marijuana for purposes other than medicinal ones? ______________________________

How much marijuana do you furnish to patients at one time? _________________________________________________________

How is that marijuana packaged? _____________________________________________________________________

Do you charge your patients for the marijuana you furnish them? _____________________________________________________

Do you grow marijuana plants for your patients? If yes, how many plants do you grow per patient? __________________________

At what location do you maintain your patient’s marijuana plants and how long have you been growing them? _______________

Do you keep a detailed growing history of your patient’s marijuana plants? ______________________________________________

Are you the owner of the marijuana plants? _____________________________________________________________________

Does anyone other than you maintain or have access to the patient’s marijuana plants? _____________________________________

Do you know the amounts of marijuana that each one of your patient’s use on a daily/weekly/monthly basis? ___________________

How do your patients ingest marijuana? _____________________________________________________________________

Do you keep detailed records of the amounts of marijuana that each of your patients uses? _______________________________

How were you initially introduced to each of your patients? __________________________________________________________

Do you qualify as a caregiver under the guidelines specified in section 11362.5 of the California Health and Safety Code? ________

Do you know what those guidelines are? _____________________________________________________________________

Do you have any health care licenses? _____________________________________________________________________

NOTES:________________________________________________________________________________________________________________________________________

________________________________________________________________________ Revised 2-6-01

ATTACHMENT C

11362.5 H&S

Physician Questionnaire

A) DOCTOR’S INFORMATION:

Are you a licensed medical doctor? _____________________________________________________________________

What are your physician’s license number and DEA number? _________________________________________________________

B) PATIENT INFORMATION:

1. Is Mr./Mrs./Ms. ____________________ your patient? _____________________________________________________________

2. When did you examine this patient? _____________________________________________________________________

3. What illnesses do they suffer from? _____________________________________________________________________

4. What medical treatments have you recommended for their illnesses? ___________________________________________________

C) RECOMMENDATION:

1. Have you given either an oral or a written recommendation to this patient to use marijuana in the treatment of their illness? _____________________________________________________________________

______________________________________

2. What was the date of that recommendation? _____________________________________________________________________

3. How much marijuana did you recommend they use on a daily/weekly/monthly basis for the treatment of their illness?

___________________________________________________________________________________________________________

4. Did you make any recommendation on how your patient should ingest the marijuana? _____________________________________

5. Have you placed any limitations on this patient while they are being treated with marijuana for their illnesses? __________________

6. Did you caution your patient not to operate heavy machinery or drive a motor vehicle while using or being under the influence of marijuana? _________________________________________________________________________________________________

7. Does the recommendation for this patient to use marijuana for treatment of this illness have an expiration date? _________________

8. Do you have a record of your recommendation to your patient that they use marijuana in the treatment of their illness? ___________

9. May I have a copy of this recommendation as well as a copy of their medical records? _____________________________________

NOTES:____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Revised 2-6-01

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