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AB-729 Nonmedical marijuana: licensee regulation.(2017-2018)

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Date Published: 02/15/2017 02:00 PM
AB729:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 729


Introduced by Assembly Member Gray

February 15, 2017


An act to amend Sections 26031, 26054, 26070, 26140, and 26152 of, and to add Sections 26036.1, 26141, and 26142 to, the Business and Professions Code, relating to marijuana.


LEGISLATIVE COUNSEL'S DIGEST


AB 729, as introduced, Gray. Nonmedical marijuana: licensee regulation.
(1) Existing law, the California Uniform Controlled Substances Act, makes various acts involving marijuana a crime except as authorized by law. Existing law, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), added by Proposition 64 at the November 8, 2016, statewide general election, authorizes a person 21 years of age or older to possess and use specified amounts of marijuana. AUMA also authorizes a person who obtains a state license under AUMA to engage in commercial marijuana activity, which does not include commercial medical cannabis activity, pursuant to that license and applicable local ordinances. AUMA prohibits a licensee from engaging in specified nonmedical marijuana commercial activities with a person under 21 years of age. AUMA generally divides responsibility for the state licensure and regulation of commercial marijuana activity among the Bureau of Marijuana Control (bureau) within the Department of Consumer Affairs, the Department of Food and Agriculture, and the State Department of Public Health, and requires those state licensing authorities to begin issuing licenses by January 1, 2018. AUMA authorizes legislative amendment of its provisions with a 2/3 vote of both houses of the Legislature, to further its purposes and intent. AUMA also authorizes the Legislature by a majority vote to amend certain provisions of the act to implement specified substantive provisions, provided that the amendments are consistent with and further the purposes and intent of the act.
AUMA authorizes each licensing authority to suspend or revoke licenses, as specified, if the licensee is found to have committed any of the acts or omissions constituting grounds for disciplinary action.
This bill would require a licensing authority to suspend a license for a 3rd or subsequent violation of the prohibition on engaging in nonmedical marijuana commercial activities with a person under 21 years of age if the violation occurs within 36 months of the initial violation. The bill would authorize a licensing authority to revoke a license for a 3rd violation of that provision that occurs within any 36-month period. The bill would specify that these provisions do not limit the authority and discretion of a licensing authority to revoke a license prior to a 3rd violation when the circumstances warrant that penalty.
The bill would require a licensee to post a sign, visible from each public entrance, and a similar sign inside the premises that reads “No Person Under 21 Allowed” and would authorize a licensee that is also a licensed dispensary to include language on the sign that reads “without identification authorizing the purchase of medical cannabis.”
The bill would authorize a licensee or its agents or employees to refuse to sell marijuana to a person who is unable to produce adequate personal identification showing that he or she is 21 years of age or older and to seize any personal identification presented by a person that shows the person to be under 21 years of age or that is false, as specified.
This bill would prohibit the sale, offer for sale, or distribution of marijuana or marijuana products in a vending machine or appliance, or any other coin- or token-operated mechanical device designed or used for vending purposes.
(2) AUMA authorizes the bureau to inspect the premises of a licensee as the licensing authority, or a state or local agency, deems necessary to perform its duties under AUMA. AUMA requires all inspections to be conducted during standard business hours of the licensed facility or at any other reasonable time.
This bill would authorize a peace officer, or an employee of a licensing authority or a state or local agency granted limited peace officer status, to enter and conduct inspections, as specified, of any place at which nonmedical marijuana or nonmedical marijuana products are sold, produced, or stored or at any site where evidence of activities involving evasion of nonmedical marijuana or nonmedical marijuana products tax may be discovered.
(3) AUMA prohibits a licensee from being located within a 600-foot radius of a school providing instruction in kindergarten or any grades 1 to 12, inclusive, day care center, or youth center, as specified, unless a licensing authority or local agency specifies a different radius.
This bill would also prohibit a licensee from being located within a 600-foot radius of a playground, hospital, or church, as specified, unless a licensing authority or local agency specifies a different radius.
(4) AUMA requires licensed retailers, microbusinesses, and certain nonprofits to implement security measures reasonably designed to prevent unauthorized entrance into areas containing nonmedical marijuana or nonmedical marijuana products and theft of nonmedical marijuana or nonmedical marijuana products from the premises. AUMA requires these security measures to include prohibiting individuals not engaged in activity related to the operation of the licensee from remaining on the premises, establishing limited access areas, and securely storing all nonmedical marijuana or nonmedical marijuana products.
This bill would require those security measures also to include maintaining windows and transparent doors in a specified manner to ensure that law enforcement personnel have a clear and unobstructed view of the interior of the premises, as specified.
(5) AUMA authorizes the use of persons under 21 years of age by peace officers in the enforcement of its provisions.
This bill would implement those provisions by specifying the manner in which a person under 21 years of age is to be used in random inspections, including having pictures taken prior to inspections to verify appearance and requiring the person under 21 years of age to present a true and correct personal identification if verbally requested.
(6) This bill would declare that specified provisions further specified purposes and intent of AUMA and other provisions implement specified substantive provisions and are consistent with and further the intent of the act.
(7) A violation of the provisions of AUMA under certain circumstances is a crime.
Because a violation of certain prohibitions of this bill would be a 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 no reimbursement is required by this act for a specified reason.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 26031 of the Business and Professions Code is amended to read:

26031.
 (a) 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 Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the director of each licensing authority shall have all the powers granted therein. by that chapter.
(b) (1) A licensing authority shall suspend a license for a third or subsequent violation of Section 26140 that occurs within 36 months of the initial violation.
(2) A licensing authority may revoke a license for a third violation of Section 26140 that occurs within any 36-month period. This subdivision does not limit the authority or discretion of a licensing authority to revoke a license prior to a third violation if the circumstances warrant that penalty.

SEC. 2.

 Section 26036.1 is added to the Business and Professions Code, to read:

26036.1.
 (a) (1) A peace officer, or employee of a licensing authority or a state or local agency granted limited peace officer status pursuant to paragraph (6) of subdivision (a) of Section 830.11 of the Penal Code, upon presenting appropriate credentials, may enter a place described in paragraph (3) and conduct inspections in accordance with this section.
(2) Inspections shall be performed in a reasonable manner and at times that are reasonable under the circumstances, taking into consideration the normal business hours of the place to be inspected.
(3) Inspections may be at any place at which marijuana or marijuana products are sold, produced, or stored or at any site where evidence of activities involving evasion of marijuana or marijuana products tax may be discovered.
(4) Inspections shall be requested or conducted no more than once in a 24-hour period.
(b) A person that refuses to allow an inspection has violated this division.

SEC. 3.

 Section 26054 of the Business and Professions Code is amended to read:

26054.
 (a) A licensee shall not also be licensed as a retailer of alcoholic beverages under Division 9 (commencing with Section 23000) or of tobacco products.
(b) No A licensee under this division shall not be located within a 600-foot radius of a school providing instruction in kindergarten or any grades 1 through 12, to 12, inclusive, day care center, or youth center center, playground, hospital, or church that is in existence at the time the license is issued, unless a licensing authority or a local jurisdiction specifies a different radius. The distance specified in this section shall be measured in the same manner as provided in subdivision (c) of Section 11362.768 of the Health and Safety Code unless otherwise provided by law.
(c) It shall be lawful under state and local law, and shall not be a violation of state or local law, for a business engaged in the manufacture of marijuana accessories to possess, transport, purchase or otherwise obtain small amounts of marijuana or marijuana products as necessary to conduct research and development related to such those marijuana accessories, provided such the marijuana and marijuana products are obtained from a person or entity licensed under this division or Chapter 3.5 (commencing with Section 19300) of Division 8 who is permitted to provide or deliver such the marijuana or marijuana products.

SEC. 4.

 Section 26070 of the Business and Professions Code is amended to read:
26070.

Retailers and Distributors.

26070.
 (a) State licenses to be issued by the Department of Consumer Affairs are as follows:
(1) “Retailer,” for the retail sale and delivery of marijuana or marijuana products to customers.
(2) “Distributor,” for the distribution of marijuana and marijuana products. A distributor licensee shall be bonded and insured at a minimum level established by the licensing authority.
(3) “Microbusiness,” for the cultivation of marijuana on an area less than 10,000 square feet and to act as a licensed distributor, Level 1 manufacturer, and retailer under this division, provided such licensee complies with all requirements imposed by this division on licensed cultivators, distributors, Level 1 manufacturers, and retailers to the extent the licensee engages in such activities. Microbusiness licenses that authorize cultivation of marijuana shall include conditions requested by the Department of Fish and Wildlife and the State Water Resources Control Board to 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 flow needed to maintain flow variability, and otherwise protect fish, wildlife, fish and wildlife habitat, and water quality.

(b)

(a) The bureau shall establish minimum security and transportation safety requirements for the commercial distribution and delivery of marijuana and marijuana products. The transportation safety standards established by the bureau shall include, but not be limited to, minimum standards governing the types of vehicles in which marijuana and marijuana products may be distributed and delivered and minimum qualifications for persons eligible to operate such those vehicles.

(c)

(b) Licensed retailers and microbusinesses, and licensed nonprofits under Section 26070.5, shall implement security measures reasonably designed to prevent unauthorized entrance into areas containing marijuana or marijuana products and theft of marijuana or marijuana products from the premises. These security measures shall include, but not be limited to, all of the following:
(1) Prohibiting individuals from remaining on the licensee’s premises if they are not engaging in activity expressly related to the operations of the dispensary.
(2) Establishing limited access areas accessible only to authorized personnel.
(3) Other than limited amounts of marijuana used for display purposes, samples, or immediate sale, storing all finished marijuana and marijuana products in a secured and locked room, safe, or vault, and in a manner reasonably designed to prevent diversion, theft, and loss.
(4) (A) A window or transparent door of a licensee’s premises shall not have more than 33 percent of the square footage covered by advertisements or signs of any sort and shall be maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which any cash register is located, from the exterior public sidewalk or the entrance to the premises.
(B) Subparagraph (A) does not apply to premises with no windows or premises with windows only located at a height that precludes a pedestrian’s view of the interior of the premises from outside the premises.

SEC. 5.

 Section 26140 of the Business and Professions Code is amended to read:

26140.
 (a) No A licensee shall: shall not do any of the following:
(1) Sell marijuana or marijuana products to persons under 21 years of age.
(2) Allow any person under 21 years of age on its premises.
(3) Employ or retain persons under 21 years of age.
(4) Sell or transfer marijuana or marijuana products unless the person to whom the marijuana or marijuana product is to be sold or transferred first presents documentation which that reasonably appears to be a valid government-issued identification card showing that the person is 21 years of age or older.
(b) (1) A licensee shall post a sign, visible from each public entrance, and a similar sign inside the premises that reads “No Person Under 21 Allowed.”
(2) A licensee that is also a dispensary licensed under Chapter 3.5 (commencing with Section 19300) of Division 8 may include language on the sign that reads “without identification authorizing the purchase of medical cannabis.”

(b)

(c) Persons under 21 years of age may be used by peace officers in the enforcement of this division and to apprehend licensees, or employees or agents of licensees, or other persons who sell or furnish marijuana to minors. Notwithstanding any provision of law, any a person under 21 years of age who purchases or attempts to purchase any marijuana while under the direction of a peace officer is immune from prosecution for that purchase or attempt to purchase marijuana. Guidelines with respect to the use of persons under 21 years of age as decoys shall be adopted and published by the bureau in accordance with the rulemaking portion of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). In accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the bureau shall adopt and publish guidelines for the use of persons under 21 years of age in inspections conducted pursuant to subdivision (c) that shall include, but not be limited to, all of the following:
(1) An enforcing agency may use persons under 21 years of age in random inspections to determine if sales of marijuana or marijuana products are being made to persons under 21 years of age.
(2) A photograph or video recording of the person under 21 years of age shall be taken prior to each inspection or shift of inspections and shall be retained by the enforcing agency for purposes of verifying appearance.
(3) An enforcing agency may use video recording equipment when conducting the inspections to record and document illegal sales or attempted sales.
(4) The person who is under 21 years of age, if questioned about his or her age, need not state his or her actual age, but shall present a true and correct identification if verbally asked to present it. Failure on the part of the person under 21 years of age to provide true and correct identification, if verbally requested, is a defense to an action pursuant to this section.
(5) The person under 21 years of age shall be under the supervision of a regularly employed peace officer during the inspection.
(6) All persons under 21 years of age used by an enforcing agency shall appear to be a person under 21 years of age. It is a defense to an action under this division that the person’s appearance was not that which could be generally expected of a person under 21 years of age, under the actual circumstances presented to the retailer at the time of the alleged offense.
(7) Following the completion of the sale, the peace officer accompanying the person under 21 years of age shall reenter the premise and shall inform the seller of the random inspection. Following an attempted sale, the enforcing agency shall notify the retailer of the inspection.
(8) Failure of the person under 21 years of age or the enforcing agency to comply with the procedures set forth in this subdivision is a defense to an action brought pursuant to this section.

(c)

(d) Notwithstanding subdivision (a), a licensee that is also a dispensary licensed under Chapter 3.5 (commencing with Section 19300) of Division 8 may: may do both of the following:
(1) Allow on the premises any a person 18 years of age or older who possesses a valid identification card under Section 11362.71 of the Health and Safety Code and a valid government-issued identification card; card.
(2) Sell marijuana, marijuana products, and marijuana accessories to a person 18 years of age or older who possesses a valid identification card under Section 11362.71 of the Health and Safety Code and a valid government-issued identification card.

SEC. 6.

 Section 26141 is added to the Business and Professions Code, to read:

26141.
 (a) For purposes of preventing violation of this division, a licensee or its agents or employees may refuse to sell marijuana to a person who is unable to produce adequate personal identification that he or she is 21 years of age or older.
(b) A licensee, or its agent or employee, may seize any personal identification presented by a person that shows the person to be under 21 years of age or that is false, if within 24 hours of seizure, a receipt is given to the local law enforcement agency that has jurisdiction over the licensed premises. A licensee’s decision not to seize the personal identification pursuant to this subdivision shall not create any civil or criminal liability.

SEC. 7.

 Section 26142 is added to the Business and Professions Code, to read:

26142.
 Marijuana or marijuana products shall not be sold, offered for sale, or distributed from a vending machine or appliance, or any other coin- or token-operated mechanical device designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

SEC. 8.

 Section 26152 of the Business and Professions Code is amended to read:

26152.
 No A licensee shall: shall not do any of the following:
(a) Advertise or market in a manner that is false or untrue in any material particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of irrelevant, scientific or technical matter, tends to create a misleading impression; impression.
(b) Publish or disseminate advertising or marketing containing any a statement concerning a brand or product that is inconsistent with any statement on the labeling thereof; thereof.
(c) Publish or disseminate advertising or marketing containing any a statement, design, device, or representation which that tends to create the impression that the marijuana originated in a particular place or region, unless the label of the advertised product bears an appellation of origin, and such that appellation of origin appears in the advertisement; advertisement.
(d) Advertise or market on a billboard or similar advertising device located on an Interstate Highway or State Highway which interstate highway or state highway that crosses the border of any other state; state.
(e) Advertise or market marijuana or marijuana products in a manner intended to encourage persons under the age of 21 years of age to consume marijuana or marijuana products; products.
(f) Publish or disseminate advertising or marketing containing symbols, language, music, gestures, cartoon characters characters, or other content elements known to appeal primarily to persons below the legal age of consumption; or consumption.
(g) Advertise or market marijuana or marijuana products on an advertising sign within 1,000 feet of a day care center, school providing instruction in kindergarten or any grades 1 through 12, inclusive, playground, or youth center. youth center, or church.

SEC. 9.

 (a) The Legislature finds and declares that Sections 1, 3, 5, and 8 of this act amending Sections 26031, 26054, 26070, and 26152 of, and that Sections 2, 6, and 7 of this act adding Sections 26036.1, 26141, and 26142 to, the Business and Professions Code further the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act, because these amendments (a) deny access to marijuana by persons younger than 21 years age who are not medical marijuana patients, (b) prevent access to marijuana by minors, (c) ensure that marijuana is taxed in a way that drives out the illicit market for marijuana and discourages use by minors, (d) prevent illegal production or distribution of marijuana, and (e) protect public safety.
(b) The Legislature finds and declares that Section 4 of this bill, amending Section 26140 of the Business and Professions Code, implements Section 6.1 of the Control, Regulate and Tax Adult Use of Marijuana Act, and that it is consistent with and further the purposes of the act as stated in Section 3 of that act.

SEC. 10.

 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.