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Bill Text
Bill Information
Bill Start
Amended
IN
Senate
September 11, 2013 |
Amended
IN
Senate
September 06, 2013 |
Amended
IN
Senate
August 13, 2013 |
Amended
IN
Assembly
April 29, 2013 |
Assembly Bill | No. 604 |
Introduced by Assembly Member Ammiano (Principal coauthors: Senators Steinberg and Leno) |
February 20, 2013 |
LEGISLATIVE COUNSEL'S DIGEST
Digest Key
Vote: MAJORITY Appropriation: YES Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
This act shall be known, and may be cited, as the Medical Cannabis Regulation and Control Act.SEC. 2.
(a) The Legislature finds and declares all of the following:(10)
(11)
SEC. 3.
Section 2220.05 of the Business and Professions Code is amended to read:2220.05.
(a) In order to ensure that its resources are maximized for the protection of the public, the Medical Board of California shall prioritize its investigative and prosecutorial resources to ensure that physicians and surgeons representing the greatest threat of harm are identified and disciplined expeditiously. Cases involving any of the following allegations shall be handled on a priority basis, as follows, with the highest priority being given to cases in the first paragraph:SEC. 4.
Section 2242 of the Business and Professions Code is amended to read:2242.
(a) Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 4022, or recommending marijuana to a patient for medical purposes, without an appropriate prior examination and a medical indication, including an in-person examination when recommending marijuana, constitutes unprofessional conduct.SEC. 5.
Section 2264 of the Business and Professions Code is amended to read:2264.
The employing, directly or indirectly, the aiding, or the abetting of any unlicensed person or any suspended, revoked, or unlicensed practitioner to engage in the practice of medicine, including employment by, or other agreement with, a mandatory commercial registrant acting pursuant to the Medical Cannabis Regulation and Control Act or a dispensary to provide recommendations for medical marijuana, or any other mode of treating the sick or afflicted which requires a license to practice constitutes unprofessional conduct.SEC. 6.
Chapter 18 (commencing with Section 26000) is added to Division 9 of the Business and Professions Code, to read:CHAPTER 18. Medical Cannabis Regulation
Article 1. General Provisions
26000.
(a) It is the intent of the Legislature in enacting this chapter to provide for the comprehensive regulation of the commercial cultivation, manufacturing, testing, transportation, distribution, and sale of medical cannabis and the enforcement of laws relating to commercial medical cannabis activities.26001.
Subject to the authority of a city or county pursuant to Section 26010, the state shall have the exclusive right and power to regulate and register persons for the cultivation, manufacture, testing, transportation, storage, distribution, sale, purchase, and possession of medical cannabis within the state. In the exercise of these rights and powers, the Legislature shall not constitute the state or any of its agencies as a cultivator, manufacturer, transporter, tester, or seller of medical cannabis.26002.
For the purpose of this chapter:26010.
This chapter does not prevent a city or county from doing any of the following:Article 2. Administration
26020.
(a) There is hereby created in the Department of Alcoholic Beverage Control the Division of Medical Cannabis Regulation and Enforcement. The division shall be administered by a person exempt from the civil service who is appointed by the director.26022.
The department shall have all power necessary for administration of this chapter, including, but not limited to, the following:26024.
(a) The department may assist state taxation authorities in the development of uniform policies for the taxation of mandatory commercial registrants.26028.
(a) The Medical Cannabis Regulation Fund is hereby established within the State Treasury. Notwithstanding Section 16305.7 of the Government Code, the fund shall include any interest and dividends earned on the money in the fund.26030.
(a) The director and the persons employed by the department for the administration and enforcement of this chapter are peace officers in the enforcement of the penal provisions of this chapter, the rules of the department adopted under the provisions of this chapter, and any other penal provisions of law of this state prohibiting or regulating the cultivation, processing, storing, manufacturing, testing, transporting, or selling of medical cannabis, and these persons are authorized, while acting as peace officers, to enforce any penal provisions of law while in the course of their employment.26034.
(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 department for the purposes of administering this chapter are confidential and exempt from the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and or not subject to disclosure to any individual or private entity, except as necessary for authorized employees of the State of California to perform official duties pursuant to this chapter:Article 3. Mandatory Commercial Registration
26040.
(a) On or before January 1, 2015, the department shall promulgate regulations necessary for the implementation and enforcement of this chapter. These regulations shall be reasonable and shall include:26042.
For the purpose of regulating the commercial cultivation, manufacturing, testing, transportation, distribution, and sale of medical cannabis, the department, in its reasonable discretion, may establish various classes or types of registration for specific commercial medical cannabis-related activities, as set forth in this chapter.26043.
(a) Each mandatory commercial registration application approved by the department pursuant to this chapter is separate and distinct. An applicant may apply for mandatory commercial registration in more than one class of specified medical cannabis activities.26044.
(a) The department shall limit the number of registrations statewide for the cultivation, processing, extraction, packaging, and transportation of medical cannabis to a number no greater than what is necessary to meet statewide need. In determining the appropriate number of registrations, the department may take into account information obtained from sources that include, but need not be limited to, municipalities, patients, and registrants.26045.
Every mandatory commercial registration is renewable unless the registration has been revoked if the renewal registration is made and the fee for it is paid. All registrations expire at 12 midnight on the last day of the month posted on the registration. All registrations issued shall be renewed as follows:26046.
An application for mandatory commercial registration shall include, but shall not be limited to, all of the following:26047.
Upon receipt of an application for a registration and the applicable fee, the department shall make a thorough investigation to determine whether the applicant and the premises for which a registration is applied qualify for the registration and whether the provisions of this chapter have been complied with, and shall investigate all matters connected therewith which may affect the public welfare and morals. The department shall deny an application for a registration if either the applicant or the premises for which a registration is applied do not qualify for a registration under this chapter. The department further shall deny an application for a registration if issuance of that registration would tend to create a law enforcement problem. The department may place reasonable conditions upon registrations if grounds exist for denial of the registration, and the department finds those grounds may be removed by the imposition of those conditions.26048.
A physician shall not recommend medical cannabis to a patient while the physician is a mandatory commercial registrant, or an officer, director, employee, or financial beneficiary of a mandatory commercial registrant.26049.
(a) The actions of a mandatory commercial registrant or provisional registrant, its employees, and its agents, permitted pursuant to a mandatory commercial registration or provisional registration issued by the department or otherwise permitted by this chapter, that are conducted in accordance to the requirements of this chapter and regulations adopted pursuant to the authority granted by this chapter, are not unlawful and shall not be an offense subject to arrest, prosecution, or other sanction under state or local law, or be subject to a civil fine or be a basis for seizure or forfeiture of assets under state or local law.26050.
(a) A registrant shall not cultivate, process, store, manufacture, test, transport, or sell medical cannabis in the state unless accurate records are kept at the registered premises of the growing, processing, storing, manufacturing, testing, transporting, or selling by the registrant in the state. These records shall include all expenditures incurred by the registrant, provided that a registrant registered to act at more than one premises may keep all records at one of the registered premises. Required records shall be kept for a period of three years from the date of the transaction.26052.
(a) This chapter shall not apply to, and shall have no diminishing effect on, the rights and protections granted to a patient or a primary caregiver pursuant to the Compassionate Use Act of 1996.26054.
Beginning January 1, 2014, the department shall provide for provisional registrations as follows:26055.
Entities that are provided immunity under Measure D, approved by the voters of the City of Los Angeles on the May 21, 2013, ballot, shall be considered the equivalent of entities that are registered, permitted, or licensed as a medical marijuana business, dispensary, or other entity involved in providing medical marijuana to patients under a local ordinance and shall be considered in compliance with a local ordinance for the purposes of the implementation of the act adding this section and any regulations promulgated by the department.26056.
In addition to other regulations adopted by the department pertaining to mandatory commercial registrants and without limiting the authority of a city or a county pursuant to Section 26010 or subdivision (b) of Section 26060, the department shall adopt regulations regarding the minimum standards for the operation of dispensaries that establish all of the following:26057.
The department shall make recommendations to the Legislature pertaining to the establishment of an appeals and judicial review process for persons aggrieved by a final decision of the department.Article 4. Enforcement
26060.
(a) The department shall work in conjunction with law enforcement entities throughout the state for the purpose of implementing and enforcing the rules and regulations regarding commercial medical cannabis and taking appropriate action against businesses and individuals who fail to comply with the law.26062.
Except for a person identified in Section 26052, a person shall not exercise the privilege or perform any act that a registrant may exercise or perform under the authority of a registration unless the person is acting pursuant to a registration, including a provisional registration, issued pursuant to this chapter.26063.
(a) Commencing January 1, 2015, any product containing cannabis that is distributed, except in the case of a primary caregiver distributing to a qualified patient, or offered for sale shall comply with the testing and labeling requirements established through regulation by the department.26064.
Any person operating an unregistered facility, building, structure, or location where cannabis is being commercially cultivated, manufactured, or possessed for sale in violation of this chapter may be subject to civil penalties of up to twenty-five thousand dollars ($25,000) for each violation, and the department may order the destruction of any cannabis associated with that violation. Any civil fines collected pursuant to this section shall be deposited into the General Fund pursuant to Section 26028.26066.
The director may bring an action to enjoin a violation or the threatened violation of any provision of this chapter, including, but not limited to, a registrant’s failure to correct objectionable conditions following notice or as a result of any rule promulgated pursuant to this chapter. The action shall be brought in the county in which the violation occurred or is threatened to occur. Any proceeding brought pursuant to this chapter shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure.26068.
(a) A state or local law enforcement agency shall immediately notify the department of any arrests made for violations over which the department has jurisdiction which involve a registrant or registered premises. Notice shall be given within 10 days of the arrest. The department shall promptly cause an investigation to be made as to whether grounds exist for suspension or revocation of a registration of the registrant.26070.
Nothing in this chapter shall be construed to limit a law enforcement agency’s ability to investigate unlawful activity in relation to a mandatory commercial registrant.26072.
The department shall create and maintain a searchable database that will allow state and local law enforcement to verify a mandatory commercial registration.There is in the state government, in the Business, Consumer Services, and Housing Agency, a Medical Cannabis Appeals Board. The Medical Cannabis Appeals Board, also referred to as the board in this chapter, shall exercise the powers as are vested in it by this chapter and may adopt such rules pertaining to appeals and other matters within its jurisdiction as may be required. The board and its duly authorized representatives in the performance of its duties under this chapter shall have the powers of a head of a department as set forth in Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.
(a)Any person aggrieved by a final decision of the department issuing, denying, suspending, revoking, or ordering any penalty assessment against a registration for the cultivation, manufacture, testing, transportation, storage, distribution, sale, purchase, or possession of medical cannabis may appeal to the board, which shall review the decision subject to the limitations that may be imposed by the Legislature.
(b)No decision of the department shall become effective during the period in which an appeal may be filed, and the filing of an appeal shall stay the effect of the decision until such time as a final order is made by the board.
The review by the board of a decision of the department shall be limited to whether:
(a)The department has proceeded without, or in excess of, its jurisdiction.
(b)The department has proceeded in the manner required by law.
(c)The decision is supported by the findings.
(d)The findings are supported by substantial evidence in the light of the whole record.
(e)There is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before the department.
(a)The board shall determine the appeal upon the record of the department and upon any briefs that may be filed by the parties. If any party to the appeal requests to appear before the board, the board may fix a time and place for argument. The board shall not receive any evidence other than that contained in the record of the proceedings of the department.
(b)Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to the determination.
(a)Except as provided in subdivision (b), the board shall enter an order either affirming or reversing the decision of the department.
(b)If the board finds that there is relevant evidence that in the exercise of reasonable diligence could not have been produced or which was improperly excluded at the hearing before the department, the board may enter an order remanding the matter to the department for reconsideration in light of the relevant evidence.
(c)When the board reverses a decision of the department, the board may direct reconsideration in light of its order and may direct the department to take further action as is specifically enjoined upon it by law, but shall not limit or control in any way the discretion vested by law in the
department.
Each order of the board on appeal from a decision of the department shall be in writing and shall be filed by delivering copies to the parties personally or in the manner prescribed by Section 1013 of the Code of Civil Procedure. Each order shall become final upon being filed as provided in this section, and there shall be no reconsideration or rehearing by the board.
(a)Any person affected by a final order of the board, including the department, may apply to the Supreme Court or to the court of appeal for the appellate district in which the proceeding arose, for a writ of review of the final order. The application for writ of review shall be made within 30 days after filing of the final order of the board.
(b)No court of this state, except the Supreme Court and the courts of appeal to the extent specified in this article, shall have jurisdiction to review, affirm, reverse, correct, or annul any order, rule, or decision of the department or to suspend, stay, or delay the operation or execution of it, or to restrain, enjoin, or interfere with the department in the performance of its duties, but a writ of mandate shall lie from the Supreme Court or the courts of appeal in any
proper case.
(c)No decision of the department which has been appealed to the board and no final order of the board shall become effective during the period in which application may be made for a writ of review, as provided within this section.
(d)The filing of a petition for, or the pendency of, a writ of review shall not of itself stay or suspend the operation of any order, rule, or decision of the department, but the court before which the petition is filed may stay or suspend, in whole or in part, the operation of the order, rule, or decision of the department subject to review, upon the terms and conditions which it by order directs.
The writ of review shall be made returnable at a time and place then or thereafter specified by court order and shall direct the board to certify the whole record of the department in the case to the court within the time specified. No new or additional evidence shall be introduced in the court, but the cause shall be heard on the whole record of the department as certified to by the board.
(a)The review by the court shall not extend further than to determine, based on the whole record of the department as certified by the board, whether:
(1)The department has proceeded without or in excess of its jurisdiction.
(2)The department has proceeded in the manner required by law.
(3)The decision of the department is supported by the findings.
(4)The findings in the department’s decision are supported by substantial evidence in the light of the whole record.
(5)There is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before the department.
(b)Nothing in this article shall
permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.
The findings and conclusions of the department on questions of fact are conclusive and final and are not subject to review. The questions of fact shall include ultimate facts and the findings and conclusions of the department. The board, the department, and each party to the action or proceeding before the board shall have the right to appear in the review proceeding. Following the hearing, the court shall enter judgment either affirming or reversing the decision of the department or the court may remand the case for further proceedings before or reconsideration by the department.
The provisions of the Code of Civil Procedure relating to writs of review shall, insofar as applicable, apply to proceedings in the courts as provided by this article. A copy of every pleading filed pursuant to this article shall be served on the board, the department, and on each party who entered an appearance before the board.
Whenever any matter is pending before the board or a court of record involving a dispute between the department and a registrant, and the parties to the dispute agree upon a settlement or adjustment of it, the tribunal shall, upon the stipulation by the parties that an agreement has been reached, remand the matter to the department.