Bill Text: CA SB1262 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Medical marijuana.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed - Dead) 2014-08-14 - Set, second hearing. Held under submission. [SB1262 Detail]

Download: California-2013-SB1262-Amended.html

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BILL NUMBER: SB 1262	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 7, 2014
	AMENDED IN SENATE  APRIL 21, 2014

INTRODUCED BY   Senator Correa

                        FEBRUARY 21, 2014

   An act to add Article 25 (commencing with Section 2525) to Chapter
5 of Division 2 of the Business and Professions Code, and to add
Article 7 (commencing with Section 111657) to Chapter 6 of Part 5 of
Division 104 of the Health and Safety Code, relating to medical
marijuana.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1262, as amended, Correa. Medical marijuana: regulation of
physicians, dispensaries, and cultivation sites.
   (1) Existing law, the Compassionate Use Act of 1996, an initiative
measure enacted by the approval of Proposition 215 at the November
6, 1996, statewide general election, authorizes the use of marijuana
for medical purposes. Existing law enacted by the Legislature
requires the establishment of a program for the issuance of
identification cards to qualified patients so that they may lawfully
use marijuana for medical purposes, and requires the establishment of
guidelines for the lawful cultivation of marijuana grown for medical
use.
   This bill would require the State Department of Public Health to
license dispensing facilities and cultivation sites that provide,
process, and grow marijuana for medical use, as specified, 
including requiring a   background check for license
applicants,  and would make these licenses subject to the
restrictions of the local jurisdiction in which the facility operates
or proposes to operate.  The bill would require the
department to establish standards for quality assurance testing of
medical marijuana and would prohibit the use of nonorganic pesticides
in any marijuana cultivation site.  The bill would require
licensed dispensing facilities and licensed cultivation sites to
implement sufficient security measures to both deter and prevent
unauthorized entrance into areas containing marijuana and theft of
marijuana at those facilities, including establishing limited access
areas accessible only to authorized facility personnel, and would
require these facilities to notify appropriate law enforcement
authorities within 24 hours after discovering specified breaches in
security.  The bill would require licensed dispensing
facilities to verify that the recommending physician and surgeon is
licensed to practice medicine in California before providing a
marijuana product to a patient.  This bill would prohibit
the distribution of any form of advertising for physician
recommendations for medical marijuana unless the advertisement bears
a specified notice and requires that the advertisement meet specified
requirements and not be fraudulent, deceitful, or misleading, as
specified.  The bill would make enforcement of these
provisions the responsibility of the county health departments, with
oversight by the department.  Violation of these provisions
would be punishable by a civil fine of up to $35,000 for each
individual violation.  By expanding the duties of local
health officers, this bill would impose a state-mandated local
program. 
   (2) Existing law, the Medical Practice Act, provides for licensure
and regulation of physicians and surgeons by the Medical Board of
California. 
   This bill would establish requirements for a physician and surgeon
to recommend medical marijuana, including prescribed procedural and
recordkeeping requirements, and would require a recommendation for
medical marijuana for a person under 21 years of age to include a
specific justification for the recommendation and why the benefit of
use is more important than the possible neurological damage that
could be caused by the person using marijuana and to be approved by a
board certified pediatrician. 
   This bill would require the  board, by January 1, 2016, to
convene a task force of experts in the use of medical marijuana to
review and update, as necessary,   board to consult with
the Center for Medical Cannabis Research on developing and adopting
medical guidelines for  recommending medical 
 the appropriate administration and   use of 
marijuana  , as specified  .
    Violation of these provisions would be punishable by a
civil fine not to exceed $5,000. The bill would make the
recommendation of medical marijuana without a prior examination and
medical indication and recommendation of medical marijuana for
nonmedical purposes unprofessional conduct, to be punished as
provided.  The bill would also make it a misdemeanor for a
physician and surgeon who recommends marijuana to a patient for a
medical purpose to accept, solicit, or offer any remuneration from or
to a licensed dispensing facility in which the physician and surgeon
or his or her immediate family has a financial interest. By creating
a new crime, this bill would impose a state-mandated local program.

   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
 
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above. 

   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) The California Constitution grants cities and counties the
authority to make and enforce, within their borders, "all local
police, sanitary, and other ordinances and regulations not in
conflict with the general laws." This inherent local police power
includes broad authority to determine, for purposes of public health,
safety, and welfare, the appropriate uses of land within the local
jurisdiction's borders. The police power, therefore, allows each city
and county to determine whether or not a medical marijuana
dispensary or other facility that makes medical marijuana available
may operate within its borders. This authority has been upheld by
City of Riverside v. Inland Empire Patients Health & Wellness, Inc.
(2013) 56 Cal.4th 729 and County of Los Angeles v. Hill (2011) 192
Cal.App.4th 861.
   (b) If, pursuant to this authority, a city or county determines
that a dispensary or other facility that makes medical marijuana
available may operate within its borders, then there is a need for
the state to license these dispensaries and other facilities for the
purpose of adopting and enforcing protocols for training and
certification of physicians who recommend the use of medical
marijuana and for agricultural cultivation practices. This licensing
requirement is not intended in any way nor shall it be construed to
preempt local ordinances regarding the sale and use of medical
marijuana, including, but not limited to, security, signage,
lighting, and inspections.
   (c) All of the following elements are necessary to uphold
important state goals:
   (1) Strict provisions to prevent the potential diversion of
marijuana for recreational use.
   (2) Audits to accurately track the volume of both product movement
and sales.
   (3) An effective means of restricting access to medical marijuana
by persons under 21 years of age.
   (d) Nothing in this act shall be construed to promote or
facilitate the nonmedical, recreational possession, sale, or use of
marijuana.
  SEC. 2.  Article 25 (commencing with Section 2525) is added to
Chapter 5 of Division 2 of the Business and Professions Code, to
read:

      Article 25.  Recommending Medical Marijuana


   2525.  (a) Prior to recommending marijuana to a patient pursuant
to Article 2.5 (commencing with Section 11362.7) of Chapter 6 of
Division 10 of the Health and Safety Code, a physician and surgeon
shall meet all of the following requirements:
   (1) Have a doctor-patient relationship.
   (2) Conduct an appropriate prior examination of the patient to
establish that medical use of marijuana is appropriate.
   (3) Consult with the patient as necessary and periodically review
the treatment's efficacy.
   (b) A physician and surgeon that recommends medical marijuana
shall do all of the following:
   (1) Include a discussion of side effects.
   (2) Address, in the recommendation, what kind of marijuana to
obtain, including high tetrahydrocannabinol (THC) levels, low THC
levels, high cannabidiol (CBD) levels, low CBD levels, and explain
the reason for recommending the particular strain. Under no
circumstances shall a physician and surgeon recommend butane hash
oil.
   (3) Maintain a system of recordkeeping that supports the decision
to recommend the use of medical marijuana for individual patients.
   (c) A recommendation for medical marijuana provided to a person
under 21 years of age shall be approved by a board certified
pediatrician. A recommendation for a person under 21 years of age
shall be for high CBD marijuana and all recommendations for persons
under 21 years of age shall be for nonsmoking delivery. 
    2525.1.   2525.   (a) It is unlawful
for a physician and surgeon who recommends marijuana to a patient for
a medical purpose to accept, solicit, or offer any form of
remuneration from or to a facility licensed pursuant to Article 7
(commencing with Section 111657) of Chapter 6 of Part 5 of Division
104 of the Health and Safety Code if the physician and surgeon or his
or her immediate family have a financial interest in that facility.
   (b) For the purposes of this section, "financial interest" shall
have the same meaning as in Section 650.01.
   (c) A violation of this section shall be a misdemeanor. 
   2525.1.  The board shall consult with the California Marijuana
Research Program, known as the Center for Medicinal Cannabis
Research, authorized pursuant to Section 11362.9 of the Health and
Safety Code, on developing and adopting medical guidelines for the
appropriate administration and use of marijuana.  
   2525.2.  The board, by January 1, 2016, shall convene a task force
of experts in the use of medical marijuana to review and update, as
necessary, guidelines for recommending medical marijuana to ensure
competent review in cases concerning the recommendation of marijuana
for medical purposes.  
   2525.3.  (a) In addition to all other remedies available pursuant
to this chapter, violation of any provision of this article shall be
punishable by a civil fine of up to five thousand dollars ($5,000).
   (b) Recommending marijuana to a patient for a medical purpose
without an appropriate prior examination and a medical indication, or
recommending marijuana for a nonmedical purpose shall constitute
unprofessional conduct and may be punished pursuant to Article 12
(commencing with Section 2220). 
  SEC. 3.  Article 7 (commencing with Section 111657) is added to
Chapter 6 of Part 5 of Division 104 of the Health and Safety Code, to
read:

      Article 7.  Medical Marijuana


   111657.  For purposes of this article, the following definitions
shall apply:
   (a) "Department" means the State Department of Public Health.
   (b) "Licensed cultivation site" means a facility that grows or
grows and processes marijuana for medical use and that is licensed
pursuant to Section 111657.1.
   (c) "Licensed dispensing facility" means a dispensary, mobile
dispensary, marijuana processing facility, or other facility that
provides marijuana for medical use that is licensed pursuant to
Section 111657.1.
   111657.1.  (a) Except as provided in Section 11362.5 of, and
Article 2.5 (commencing with Section 11362.7) of Chapter 6 of
Division 10 of, the Health and Safety Code, a person shall not sell
or provide marijuana other than at a licensed dispensing facility.
   (b) Except as provided in Section 11362.5 of, and Article 2.5
(commencing with Section 11362.7) of Chapter 6 of Division 10 of, the
Health and Safety Code, a person shall not grow or process marijuana
other than at a licensed cultivation site.
   (c) The department shall require, prior to issuing a license to a
dispensing facility or a cultivation site, all of the following:
   (1) The name of the owner or owners of the proposed facility.
   (2) The address and telephone number of the proposed facility.
   (3) A description of the scope of business of the proposed
facility.
   (4) A certified copy of the local jurisdiction's approval to
operate within its borders.
   (5) A completed application, as required by the department.
   (6) Payment of a fee, in an amount to be determined by the
department not to exceed the amount necessary, but that is sufficient
to cover, the actual costs of the administration of this article.

   (7) (A) An applicant's 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 and
federal convictions and arrests and information as to the existence
and content of a record of state and 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.  
   (B) The Department of Justice shall forward the fingerprint images
and related information received pursuant to subparagraph (A) to the
Federal Bureau of Investigation and request a federal summary of
criminal information. The Department of Justice shall review the
information returned from the Federal Bureau of Investigation and
compile and disseminate a response to the department.  
   (C) The Department of Justice shall charge a fee sufficient to
cover the reasonable cost of processing the requests described in
this paragraph.  
   (7)  
   (D) The department may deny a license based on a past criminal
conviction if the crime is substantially related to the
qualifications, functions, or duties of the business for which the
license will be issued. 
    (8) Any other information as required by the department.

   111657.2.  The department shall, after consulting with outside
entities as needed, establish standards for quality assurance testing
of medical marijuana, to ensure protection against microbiological
contaminants. Nonorganic pesticides shall not be used in any
marijuana cultivation site, irrespective of size or location.

    111657.3.   111657.2.   (a) A licensed
dispensing facility shall not acquire, possess, cultivate, deliver,
transfer, transport, or dispense marijuana for any purpose other than
those authorized by Article 2.5 (commencing with Section 11362.7) of
Chapter 6 of Division 10.
   (b) A licensed dispensing facility shall not acquire marijuana
plants or products except through the cultivation of marijuana by
that facility, if the facility is a licensed cultivation site, or
another licensed cultivation site. 
   111657.4.  A licensed dispensing facility shall not provide a
marijuana product to a patient until it verifies that the
recommending physician and surgeon is licensed to practice medicine
in California. 
    111657.5.   111657.3.   (a) A person
shall not distribute any form of advertising for physician
recommendations for medical marijuana in California unless the
advertisement bears the following notice to consumers:

   NOTICE TO CONSUMERS: The Compassionate Use Act of 1996 ensures
that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where medical use is deemed
appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of
marijuana. Physicians are licensed and regulated by the Medical Board
of California and arrive at the decision to make this recommendation
in accordance with accepted standards of medical responsibility.
 California law prohibits advertising that includes
statements of bait, discount, premiums, gifts, or any statements of a
similar nature. 

   (b) Advertising for physician recommendations for medical
marijuana shall meet all requirements of Section 651 of the Business
and Professions Code. Price advertising shall not be fraudulent,
deceitful, or misleading, including statements or advertisements of
bait, discount, premiums, gifts, or statements of a similar nature.
    111657.6.   111657.4.   (a) A facility
licensed pursuant to this article shall implement sufficient security
measures to both deter and prevent unauthorized entrance into areas
containing marijuana and theft of marijuana at those facilities.
These security measures shall include, but not be limited to, all of
the following:
   (1) Allow only  registered  qualifying patients,
 personal caregivers   the patient's primary
caregiver  , and facility agents access to the facility.
   (2) Prevent individuals from remaining on the premises of the
facility if they are not engaging in activity expressly related to
the operations of the facility.
   (3) Establish limited access areas accessible only to authorized
facility personnel.
   (4) Store all finished marijuana in a secure, locked safe or vault
and in a manner as to prevent diversion, theft, and loss.
   (b) A facility licensed pursuant to this article shall notify
appropriate law enforcement authorities within 24 hours after
discovering any of the following:
   (1) Discrepancies identified during inventory.
   (2) Diversion, theft, loss, or any criminal activity involving the
facility or a facility agent.
   (3) The loss or unauthorized alteration of records related to
marijuana, registered qualifying patients, personal caregivers, or
facility agents.
   (4) Any other breach of security.
   (c) A licensed cultivation site shall weigh, inventory, and
account for on video, all medical marijuana to be transported prior
to its leaving its origination location. Within eight hours after
arrival at the destination, the licensed dispensing facility shall
re-weigh, re-inventory, and account for on video, all transported
marijuana. 
   111657.7.  (a) Enforcement of this article shall be the
responsibility of the county health departments, with oversight by
the department.
   (b) An enforcement officer may enter a facility licensed pursuant
to this article during the facility's hours of operation and other
reasonable times to do either of the following:
   (1) Conduct inspections, issue citations, and secure samples,
photographs, or other evidence from the facility, or a facility
suspected of being a dispensing facility or cultivation site.
   (2) Secure as evidence documents, or copies of documents,
including inventories required pursuant to subdivision (c) of Section
111657.6, or any record, file, paper, process, invoice, video, or
receipt for the purpose of determining compliance with this chapter.
   (c) A written report shall be made and a copy shall be supplied or
mailed to the owner of the facility at the completion of an
inspection or investigation.
   (d) Upon request by the department, local governments shall
provide the department with reports on the number and types of
facilities operating within their jurisdiction. 
    111657.8.   111657.5.   In addition to
the provisions of this article, a license granted pursuant to this
article shall be subject to the restrictions of the local
jurisdiction in which the facility operates or proposes to operate.
Even if a license has been granted pursuant to this article, a
facility shall not operate in a local jurisdiction that prohibits the
establishment of that type of business.
    111657.9.  111657.6.   Violation of
this  provision   article  shall be
punishable by a civil fine of up to thirty-five thousand dollars
($35,000) for each individual violation. 
   111657.10.  Nothing in this article shall prevent a city or other
local governing body from doing any of the following:
   (a) Adopting and enforcing local ordinances that regulate the
location, operation, or establishment of medical marijuana
cooperatives or collectives.
   (b) The civil and criminal enforcement of local ordinances
described in subdivision (a).
   (c) Enacting other laws consistent with this article. 

   111657.7.  Nothing in this article shall prevent a city or other
local governing body from taking action as specified in Section
11362.83.  
  SEC. 4.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code. 
   SEC. 4.    No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.