SB420 - What it Does and What it Says.

• SB 420 recognizes all patient's rights as embodied in Prop 215 as summarized in SB420 Section 1(a)(1)
• Participation in the voluntary ID program is not a requirement for full protection under Prop 215 11362.71(f)
• It asserts medical marijuana as a matter of states rights 420 (1)(e)
• It extends the power of recommendation/approval to osteopaths 11362.7(a)
• It allows agencies to provide medical marijuana to qualified patients 11362.7(d)(2)
• It allows caregivers to have more than one patient in the same county 11362.7(d)(3)
• It allows caregivers to have one out-of-county patient 11362.7(d)(3)
• It creates a completely voluntary and protective 1-year photo ID program for participating patients and/or caregivers. 11362.71(a)(1)
• It provides "around the clock" validation of participation in the program when police confront a patient or caregiver 11362.71(a)(2)
• It allows non-governmental agencies to process the cards 11362.71(c)
• It promises confidentiality of records 11362.71(d)(1)
• It stops arrests -- not just prosecutions -- of qualified individuals for possession, transportation, delivery or cultivation up to a very minimal level of 8 oz and 6 plants per patient (that could arguably be hash or hash oil, which would be equivalent to more; I'm not sure what it does about tinctures, which have a lot of liquid weight) 11362.71(e)
• It includes the right for an individual to appeal if rejected for a patient ID card 11362.74 (b)
• It gives Medi-Cal patients a 50% fee discount 11362.755(a)
• It allows transportation and processing (HS 11360) 11362.765 (b)
• It reduces the risk of a patient being charged with intent to sell (11359) maintaining a place where cannabis is produced, provided or used (HS11366, 11366.5, 11570 ) 11362.765(b)
• It allows reimbursement for a caregiver's material and labor 11362.765(c)
• It empowers physicians to grant exemptions for quantities 11362.77 (b)
• It allows communities to adopt more realistic amounts but does not allow them to go below the "floor" amounts 11362.77(c)
• It codifies the medical use of dried cannabis flowers rather than leaf 11362.77(d)
• It opens the door for us to work with the AG to amend these levels upward 11362.77(e)
• It recognizes collectives and coop gardens, without regard to county boundaries 11362.775
• It requires police to comply with these provisions 11362.78
• It recognizes that inmates can use medical marijuana 11362.785(c)
• It exempts patients in their homes from the penalties associated with using cannabis within 1000 feet of a school 11362.79(b)
• It enables parolees, defendants and probates to retain full access to MMJ 11362.795
• It criminalizes breach of confidentiality (eg., gives patient info to the feds) 11362.81(b)(4)

BILL NUMBER: SB 420 -- BILL TEXT

INTRODUCED FEBRUARY 20, 2003 BY Senator Vasconcellos
PASSED SENATE SEPTEMBER 11, 2003
PASSED ASSEMBLY SEPTEMBER 10, 2003*
(Principal coauthor: Assembly Member Leno. Coauthors: Assembly Members Goldberg, Hancock, and Koretz)
An act to add Article 2.5 (commencing with Section 11362.7) to Chapter 6 of Division 10 of the Health and Safety Code, relating to controlled substances.
LEGISLATIVE COUNSEL'S DIGEST
SB 420, Vasconcellos. Medical marijuana.
Existing law, the Compassionate Use Act of 1996, prohibits any physician from being punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. The act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient' s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
This bill would require the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and would establish procedures under which a qualified patient with an identification card may use marijuana for medical purposes. The bill would specify the department's duties in this regard, including developing related protocols and forms, and establishing application and renewal fees for the program.
The bill would impose various duties upon county health departments relating to the issuance of identification cards, thus creating a state-mandated local program.
The bill would create various crimes related to the identification card program, thus imposing a state-mandated local program. This bill would authorize the Attorney General to set forth and clarify details concerning possession and cultivation limits, and other regulations, as specified. The bill would also authorize the Attorney General to recommend modifications to the possession or cultivation limits set forth in the bill. The bill would require the Attorney General to develop and adopt guidelines to ensure the security and nondiversion of marijuana grown for medical use, as specified.
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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000.
This bill would provide that no reimbursement is required by this act for specified reasons.
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THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:SECTION 1. (a) The Legislature finds and declares all of the following:
(1) On November 6, 1996, the people of the State of California enacted the Compassionate Use Act of 1996 (hereafter the act), codified in Section 11362.5 of the Health and Safety Code, in order to allow seriously ill residents of the state, who have the oral or written approval or recommendation of a physician, to use marijuana for medical purposes without fear of criminal liability under Sections 11357 and 11358 of the Health and Safety Code.
(2) However, reports from across the state have revealed problems and uncertainties in the act that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act.
(3) Furthermore, the enactment of this law, as well as other recent legislation dealing with pain control, demonstrates that more information is needed to assess the number of individuals across the state who are suffering from serious medical conditions that are not being adequately alleviated through the use of conventional medications.
(4) In addition, the act called upon the state and the federal government to develop a plan for the safe and affordable distribution of marijuana to all patients in medical need thereof.
(b) It is the intent of the Legislature, therefore, to do all of the following:
(1) Clarify the scope of the application of the 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.
(2) Promote uniform and consistent application of the act among the counties within the state.
(3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.
(c) It is also the intent of the Legislature to address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.
(d) The Legislature further finds and declares both of the following:
(1) A state identification card program will further the goals outlined in this section.
(2) With respect to individuals, the identification system established pursuant to this act must be wholly voluntary, and a patient entitled to the protections of Section 11362.5 of the Health and Safety Code need not possess an identification card in order to claim the protections afforded by that section.
(e) The Legislature further finds and declares that it enacts this act pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution.
SEC. 2. Article 2.5 (commencing with Section 11362.7) is added to Chapter 6 of Division 10 of the Health and Safety Code, to read:
Article 2.5. Medical Marijuana Program
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11362.7. For purposes of this article, the following definitions shall apply:
(a) "Attending physician" means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate.
(b) "Department" means the State Department of Health Services.
(c) "Person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article.
(d) "Primary caregiver" means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following:
(1) In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2, a health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2, a residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2, a hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2, the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card.
(2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver.
(3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card.
(e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code.
(f) "Qualified patient" means a person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article.
(g) "Identification card" means a document issued by the 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.
(h) "Serious medical condition" means all of the following medical conditions:
(1) Acquired immune deficiency syndrome (AIDS).
(2) Anorexia.
(3) Arthritis.
(4) Cachexia.
(5) Cancer.
(6) Chronic pain.
(7) Glaucoma.
(8) Migraine.
(9) Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
(10) Seizures, including, but not limited to, seizures associated with epilepsy.
(11) Severe nausea.
(12) Any other chronic or persistent medical symptom that either:
(A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336).
(B) If not alleviated, may cause serious harm to the patient's safety or physical or mental health.
(i) "Written documentation" means accurate reproductions of those portions of a patient's medical records that have been created by the attending physician, that contain the information required by paragraph (2) of subdivision (a) of Section 11362.715, 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.
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11362.71. (a) (1) The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program.
(2) The department shall establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of an identification card issued by the department, until a cost-effective Internet Web-based system can be developed for this purpose.
(b) Every county health department, or the county's designee, shall do all of the following:
(1) Provide applications upon request to individuals seeking to join the identification card program.
(2) Receive and process completed applications in accordance with Section 11362.72.
(3) Maintain records of identification card programs.
(4) Utilize protocols developed by the department pursuant to paragraph (1) of subdivision (d).
(5) Issue identification cards developed by the department to approved applicants and designated primary caregivers.
(c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes marijuana.
(d) The department shall develop all of the following:
(1) Protocols that shall be used by a county health department or the county's designee to implement the responsibilities described in subdivision (b), including, but not limited to, protocols to confirm the accuracy of information contained in an application and to protect the confidentiality of program records.
(2) Application forms that shall be issued to requesting applicants.
(3) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's designated primary caregiver, if any. The two identification cards developed pursuant to this paragraph shall be easily distinguishable from each other.
(e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.
(f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.
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11362.715. (a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county's designee on a form developed and provided by the department:
(1) The name of the person, and proof of his or her residency within the county.
(2) Written documentation by the attending physician in the person' s medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate.
(3) The name, office address, office telephone number, and California medical license number of the person's attending physician.
(4) The name and the duties of the primary caregiver.
(5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity.
(b) If the person applying for an identification card lacks the capacity to make medical decisions, the application may be made by the person's legal representative, including, but not limited to, any of the following:
(1) A conservator with authority to make medical decisions.
(2) An attorney-in-fact under a durable power of attorney for health care or surrogate decisionmaker authorized under another advanced health care directive.
(3) Any other individual authorized by statutory or decisional law to make medical decisions for the person.
(c) The legal representative described in subdivision (b) may also designate in the application an individual, including himself or herself, to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver.
(d) The person or legal representative submitting the written information and documentation described in subdivision (a) shall retain a copy thereof.
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11362.72. (a) Within 30 days of receipt of an application for an identification card, a county health department or the county's designee shall do all of the following:
(1) For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information.
(2) Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state.
(3) Contact the attending physician by facsimile, telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician's office records. When contacted by a county health department or the county' s designee, the attending physician shall confirm or deny that the contents of the medical records are accurate.
(4) Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver, if any.
(5) Approve or deny the application. If an applicant who meets the requirements of Section 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time, so long as the applicant continues to meet the requirements of this paragraph.
(b) If the county health department or the county's designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the department:
(1) A unique user identification number of the applicant.
(2) The date of expiration of the identification card.
(3) The name and telephone number of the county health department or the county's designee that has approved the application.
(c) The county health department or the county's designee shall issue an identification card to the applicant and to his or her designated primary caregiver, if any, within five working days of approving the application.
(d) In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application.
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11362.735. (a) An identification card issued by the county health department shall be serially numbered and shall contain all of the following:
(1) A unique user identification number of the cardholder.
(2) The date of expiration of the identification card.
(3) The name and telephone number of the county health department or the county's designee that has approved the application.
(4) A 24-hour, toll-free telephone number, to be maintained by the department, that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card.
(5) Photo identification of the cardholder.
(b) A separate identification card shall be issued to the person's designated primary caregiver, if any, and shall include a photo identification of the caregiver.
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11362.74. (a) The county health department or the county's designee may deny an application only for any of the following reasons:
(1) The applicant did not provide the information required by Section 11362.715, and upon notice of the deficiency pursuant to subdivision (d) of Section 11362.72, did not provide the information within 30 days.
(2) The county health department or the county's designee determines that the information provided was false.
(3) The applicant does not meet the criteria set forth in this article.
(b) Any person whose application has been denied pursuant to subdivision (a) may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county's designee or by a court of competent jurisdiction.
(c) Any person whose application has been denied pursuant to subdivision (a) may appeal that decision to the department. The county health department or the county's designee shall make available a telephone number or address to which the denied applicant can direct an appeal.
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11362.745. (a) An identification card shall be valid for a period of one year.
(b) Upon annual renewal of an identification card, the county health department or its designee shall verify all new information and may verify any other information that has not changed. (c) The county health department or the county's designee shall transmit its determination of approval or denial of a renewal to the department.

11362.755. (a) The department shall establish application and renewal fees for persons seeking to obtain or renew identification cards that are sufficient to cover the expenses incurred by the department, including the startup cost, the cost of reduced fees for Medi-Cal beneficiaries in accordance with subdivision (b), the cost of identifying and developing a cost-effective Internet Web-based system, and the cost of maintaining the 24-hour toll-free telephone number. Each county health department or the county's designee may charge an additional fee for all costs incurred by the county or the county's designee for administering the program pursuant to this article.
(b) Upon satisfactory proof of participation and eligibility in the Medi-Cal program, a Medi-Cal beneficiary shall receive a 50 percent reduction in the fees established pursuant to this section.

11362.76. (a) A person who possesses an identification card shall:
(1) Within seven days, notify the county health department or the county's designee of any change in the person's attending physician or designated primary caregiver, if any.
(2) Annually submit to the county health department or the county' s designee 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, if any, for the forthcoming year.
(b) If a person who possesses an identification card fails to comply with this section, the card shall be deemed expired. If an identification card expires, the identification card of any designated primary caregiver of the person shall also expire.
(c) If the designated primary caregiver has been changed, the previous primary caregiver shall return his or her identification card to the department or to the county health department or the county's designee.
(d) If the owner or operator or an employee of the owner or operator of a provider has been designated as a primary caregiver pursuant to paragraph (1) of subdivision (d) of Section 11362.7, of the qualified patient or person with an identification card, the owner or operator shall notify the county health department or the county's designee, pursuant to Section 11362.715, if a change in the designated primary caregiver has occurred.
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11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.
(b) Subdivision (a) shall apply to all of the following:
(1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.
(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person.
(c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360.

11362.77. (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient' s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).
(d) Only the dried mature processed flowers of female cannabis plant or the plant conversion (- editor "hashish"-) shall be considered when determining allowable quantities of marijuana under this section.
(e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later than December 1, 2005, and may be made only after public comment and consultation with interested organizations, including, but not limited to, patients, health care professionals, researchers, law enforcement, and local governments. Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research.
(f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article.*

11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.
11362.78. A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.

11362.785. (a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
(b) Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained.
(c) Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.
(d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.
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11362.79. Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances:
(a) In any place where smoking is prohibited by law.
(b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence.
(c) On a schoolbus.
(d) While in a motor vehicle that is being operated.
(e) While operating a boat.

11362.795. (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
(2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
(4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
(b) (1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
(2) During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
(3) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
(4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
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11362.8. No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee's role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations, or both, shall be governed by Section 11362.5.

11362.81. (a) A person specified in subdivision (b) shall be subject to the following penalties:
(1) For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars ($1,000), or both.
(2) For a second or subsequent offense, imprisonment in the county jail for no more than one year, or a fine not to exceed one thousand dollars ($1,000), or both.
(b) Subdivision (a) applies to any of the following:
(1) A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county's designee, or state or local law enforcement agency or officer, for the purpose of falsely obtaining an identification card.
(2) A person who steals or fraudulently uses any person's identification card in order to acquire, possess, cultivate, transport, use, produce, or distribute marijuana.
(3) A person who counterfeits, tampers with, or fraudulently produces an identification card.
(4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county's designee pertaining to an identification card program.
(c) In addition to the penalties prescribed in subdivision (a), any person described in subdivision (b) may be precluded from attempting to obtain, or obtaining or using, an identification card for a period of up to six months at the discretion of the court.
(d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996.
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11362.82. If any section, subdivision, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portion thereof.

11362.83. Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.
SEC. 3. 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.
In addition, no reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for other costs mandated by the state because this act includes additional revenue that is specifically intended to fund the costs of the state mandate in an amount sufficient to fund the cost of the state mandate, within the meaning of Section 17556 of the Government Code.
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* **Footnotes to the above:
11366. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (13), (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), paragraph (1) or (2) of subdivision (d), or paragraph (3) of subdivision (e) of Section 11055, or (2) which is a narcotic drug classified in Schedule III, IV, or V, shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison.
11366.5. (a) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly rents, leases, or makes available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance for sale or distribution shall be punished by imprisonment in the county jail for not more than one year, or in the state prison.
(b) Any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, who knowingly allows the building, room, space, or enclosure to be fortified to suppress law enforcement entry in order to further the sale of any amount of cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, heroin, phencyclidine, amphetamine, methamphetamine, or lysergic acid diethylamide and who obtains excessive profits from the use of the building, room, space, or enclosure shall be punished by imprisonment in the state prison for two, three, or four years.
(c) Any person who violates subdivision (a) after previously being convicted of a violation of subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years.
(d) For the purposes of this section, "excessive profits" means the receipt of consideration of a value substantially higher than fair market value.
11570. Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.
*

*

[HappaGuy]

Hey admins, shouldn't this most excellent information, as well as The Compassionate Use Act, be posted in "medical marijuana politics" instead of "national and international politics?

Seems like some very important information!

In fact that's the best synopsis of SB420 i've ever seen.

[The Urban Spaceman]

Great Post. Thanks!
F

[GanjaMan7]

Thanx for the post, good stuff to know.

[dpla]

Originally Posted by Not a User

SB420 - What it Does and What it Says.

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

Section 11362.5. (a) This section shall be known and may be cited as the
Compassionate Use Act of 1996.
(b) (1) The people of the State of California hereby find and
declare that the purposes of the Compassionate Use Act of 1996 are as
follows:
(A) To ensure that seriously ill Californians have the right to
obtain and use marijuana for medical purposes where that medical use
is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other illness for
which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who
obtain and use marijuana for medical purposes upon the recommendation
of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a
plan to provide for the safe and affordable distribution of marijuana
to all patients in medical need of marijuana.
(2) Nothing in this section shall be construed to supersede
legislation prohibiting persons from engaging in conduct that
endangers others, nor to condone the diversion of marijuana for
nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in
this state shall be punished, or denied any right or privilege, for
having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not
apply to a patient, or to a patient's primary caregiver, who
possesses or cultivates marijuana for the personal medical purposes
of the patient upon the written or oral recommendation or approval of
a physician.
(e) For the purposes of this section, "primary caregiver" means
the individual designated by the person exempted under this section
who has consistently assumed responsibility for the housing, health,
or safety of that person.

[dpla]

As "Qualified patients" [under Section 11362.5 of the California Health and Safety Code] we are in turn entitled the protections stated under the Americans with Disabilities Act Regulation for Title II, as printed in the Federal Register (7/26/91). The Department of Justice's regulation implementing title II, subtitle A, of the ADA which prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by State and local governments, except public transportation services. See: http://www.usdoj.gov/crt/ada/reg2.html

[Smilodon]

Originally Posted by dpla

As "Qualified patients" [under Section 11362.5 of the California Health and Safety Code] we are in turn entitled the protections stated under the Americans with Disabilities Act Regulation for Title II, as printed in the Federal Register (7/26/91). The Department of Justice's regulation implementing title II, subtitle A, of the ADA which prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by State and local governments, except public transportation services. See: http://www.usdoj.gov/crt/ada/reg2.html

I may be slower than the rest of the class, but does this mean that the ADA prohibits the DEA from interfering with services delivered to persons with this particular disability?

[dpla]

Originally Posted by dpla

prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by State and local governments. See: http://www.usdoj.gov/crt/ada/reg2.html

As an advocate for people with disabilities since 1978, this is what we meant it to do when we marched, crawled and rolled on Washington.

[zebrasmoke]

Originally Posted by Smilodon

I may be slower than the rest of the class, but does this mean that the ADA prohibits the DEA from interfering with services delivered to persons with this particular disability?

+confused, but my assumption as well...( i know, i know, that makes me an ass... so?)so.... shouldnt we pursue this avenue, along with every other posibility? just a thought.

[dpla]

It seems pretty much there in black and white.
Is a co-op what the CA law describes under it's protections? i know we, as qualified patients, are included under the ADA Regs. but, what about the co-ops? I too would like this tested. The ADA covers non-discrimination in employment also.

[HappaGuy]

Originally Posted by dpla

As "Qualified patients" [under Section 11362.5 of the California Health and Safety Code] we are in turn entitled the protections stated under the Americans with Disabilities Act Regulation for Title II, as printed in the Federal Register (7/26/91). The Department of Justice's regulation implementing title II, subtitle A, of the ADA which prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public by State and local governments, except public transportation services. See: http://www.usdoj.gov/crt/ada/reg2.html

If I understand correctly, your theory is that the ADA forbids the DEA from hassling the dispensaries because the dispensaries are services provided to qualified patients and thus qualify for protection under the ADA.

which prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public

.

The rub is the wording that follows:

provided to the public by State and local governments

The ADA wording only regulates government services, not those provided by private, non-governmental entities, if I'm not mistaken. The dispensaries are non-governmental, to say the least.:slaugh:

But you know, this may provide a novel rationale for the establishment of city or county or state-run dispensaries, which might be protected under the above ADA wording as I understand it.

The trick is the local lawyers advise the local government that they are obligated to follow federal laws. Not many politicians are willing to buck that.

I miss Terence Hallinan.

Anyway, interesting point.

[squatter420]

I believe the ADA is only enforcable in Federal court. For instance States are not required to be compliant with the ADA. A Tenn. case about courthouse access settled this, I think.

This leaves me to believe that the ADA has no answers for us.

[DSW90049]

This is most helpful- we should all be familiar with what these important laws provide- you don't have to be a lawyer to know your rights and you are being less than careful about your own freedoms if don't take the time to read through this long thread and make some important mental notes. People fought and bled and sacrificed for these laws and we should stop and remember that they did!

The big grey area comes at the Federal level where our Supreme Court- remember those old dudes and dudettes, the ones who elected Geo Bush II, destroyer of our Constitution?- well, they say that, under the Commerce Clause- something that experts regarded as a true dead letter back when I was in law school in the mid 70's [and I had one of the leading authorities as my Prof, who said we didn't even have to read the old cases under this clause because it died back in the 1920's!]-- the Feds can regulate Californian's conduct which occurs entirely within California, because some MMJ could slip out into other states [ohmiGod!-]. This flimsy-assed, intellectually dishonest reading of an old dead clause of our Constitution is what the Feds have seized on to deny you and me our medicine!!

We will win this- I am sure. 2008 means get out and vote and don't vote for anybody who goes along with this kind of mindless Fascistic crap- I don't care who your candidate is; just make sure that he or she PROMISES to end this nonsense once and for all and to respect the voters of California [or, we secede and form our own damn country!].

[HappaGuy]

Originally Posted by DSW90049

This is most helpful- we should all be familiar with what these important laws provide- you don't have to be a lawyer to know your rights and you are being less than careful about your own freedoms if don't take the time to read through this long thread and make some important mental notes. People fought and bled and sacrificed for these laws and we should stop and remember that they did!

The big grey area comes at the Federal level where our Supreme Court- remember those old dudes and dudettes, the ones who elected Geo Bush II, destroyer of our Constitution?- well, they say that, under the Commerce Clause- something that experts regarded as a true dead letter back when I was in law school in the mid 70's [and I had one of the leading authorities as my Prof, who said we didn't even have to read the old cases under this clause because it died back in the 1920's!]-- the Feds can regulate Californian's conduct which occurs entirely within California, because some MMJ could slip out into other states [ohmiGod!-]. This flimsy-assed, intellectually dishonest reading of an old dead clause of our Constitution is what the Feds have seized on to deny you and me our medicine!!

....

Great post DSW.

WTers will do well to know more about the Interstate Commerce Clause (the ICC) of the Constitution, and how it directly impacts our fortunes as medical marijuana patients in California.

The U.S. Constitution grants the federal government (congress and the executive branch) the power to regulate interstate commerce in Article I section 8.

The Congress shall have power To ...regulate commerce with foreign nations, and among the several states, and with the Indian tribes...

Over the years the interpretation of that clause has broadened to form an essentially unlimited mandate for the Federal government to control anything among or within the states.

This fact inspired a warning about the potential for a national police state therein in 1995 by Justice Clarence Thomas in United States v. Lopez (1995) concerning federal government regulation of firearms near schools.

Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation.

The coffin was nailed by our MMJ community's loss in the MMJ Supreme Court Case Gonzales v. Raich (2005), which determined that the federal government had the power to regulate even locally grown marijuana with local inputs (ie entirely intrastate commerce - commerce entirely within a state using no federal or interstate inputs).

That is to say, the Interstate Commerce Clause of the constitution which was intended to restrain the powers of the federal government has been interpreted as an unrestricted mandate for the exercise of federal powers.

If that worries you, you've been paying attention.

And that is the (latest) reason that MMJ is still illegal.

In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In Wickard v. Filburn, (1942) the Court upheld the Agricultural Adjustment Act, stating that the act of growing wheat on one's own land, for one's own consumption, affected interstate commerce, and therefore under the Commerce Clause was subject to federal regulation.

This change in the Court's decisions is often referred to as the Constitutional Revolution of 1937.[2] This expansion continued largely unabated until United States v. Lopez (1995).

[edit] Civil rights

The wide interpretation of the scope of the commerce clause continued following the passing of the Civil Rights Act of 1964, which aimed to prevent business from discriminating against black customers. In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.

[edit] The Rehnquist Court

In 1995, Chief Justice William H. Rehnquist delivered the opinion of the Court in United States v. Lopez (later clarified by United States v. Morrison). There, the Court ruled that Congress had the power to regulate only

* the channels of commerce,
* the instrumentalities of commerce, and
* action that substantially affects interstate commerce

Thus the federal government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in the Lopez case. This was the first time in 60 years, since the conflict with President Franklin Roosevelt in 1936-37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power. Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation.

The Court found in Seminole Tribe v. Florida, 517 U.S. 44 (1996) that, unlike the Fourteenth Amendment, the Commerce Clause does not give the federal government the power to abrogate the sovereign immunity of the states.

Many described the Rehnquist Court's commerce clause cases as a doctrine of "new federalism". The outer limits of that doctrine were delineated by Gonzales v. Raich (2005), in which Justices Scalia and Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. The court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered interstate commerce.

Source: http://en.wikipedia.org/wiki/Interstate_commerce_clause

[Puff Now Pay Later]

Thanks for some of the most informative yet really enjoyable information to read. Just another perfect example of why W.T. really kicks ass!

[magicwoman2727]

thanks for the post! It is aways good to inform others of all the important facts!

[magicwoman2727]

hmm...i cant figure out how to pm but...no problem HappaGuy!

[dpla]

The connection:
SB 420 (See post #1 above)
SEC. 2.
Article 2.5
Section 11362.7 definitions
(h) medical conditions
(12)(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 (Public Law 101-336) See: http://www.ada.gov/pubs/ada.htm#Anchor-49897
Sec. 12102. Definitions
(2) Disability
The term "disability" means, with respect to an individual
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such impairment.
(3) State
The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.

[Skoobie Dew]

Just found this thread. I asked a bunch of questions on another thread & didn't get what I thought was a definitive answer.

I don't understand how this bill allows colectives to move medication over county boundries. It dosen't say they can; explicitly diallowes caregivers (with possibly a one person exception) to do so: and contradicts itself.

If colectives are a.o.k. then why do most of the colectives outside of the Bay Area force you to sign a primary caregiver agrement before you can see what kind of medication they have & or the expected donation/s???

It seems like it allows a loop-hole for local leo to come after any colective. This would alow (at leaset until it goes to an applet court) to close down colectives. Imho judges will simply go on their pre disposed opinion before they will take a strong look at what the legislature is trying to do. i.e. a colective has a p.d. & the judge rules in the leo's intrest because he is conservatve.

Is there case law, or less ambiguous language on this subject?

[squatter420]

"Is there case law, or less ambiguous language on this subject?"

Unfortunately very little. This is law written to a purpose that is rarely contemplated by the law. The goal was to disempower ordinary market structured business, and to engender compassion. The word "collective" is not well defined in law in the same way "coop" or "cooperative" is in CA corporate law. This allows for this grey area of law as I understand it.

[Pops]

I am not sure if this applies or not but I found it to be very interesting and in favor of our support:

http://www.oaksterdamnews.net/content/view/275/10021/

[The_Mad_Hatter]

wow,
wish i woulda known this part before hand

"• It gives Medi-Cal patients a 50% fee discount 11362.755(a)"

i coulda saved $70 bucks

[HappaGuy]

Originally Posted by Pops

I am not sure if this applies or not but I found it to be very interesting and in favor of our support:
http://www.oaksterdamnews.net/content/view/275/10021/

or this link:
http://www.oaksterdamnews.net/content/view/275/10021/

Hey that's some very heavily happy news I hadn't heard yet.

That Oaksterdam News article announces that in December 2007 a Superior Court judge in San Diego has upheld our MMJ laws validity in the face of the Fed's argument that federal law supercedes.

Go ASA!

Judge sides with Americans for Safe Access, ACLU and drug Policy Alliance in saying California can protect patients

A San Diego Superior Court judge handed a critical victory to medical marijuana patients nationwide Dec. 7, 2006, affirming the ability and authority of states to exempt qualified patients from criminal penalties, despite federal policy that prohibits all cannabis use.

Following oral arguments by the Americans for Safe Access, the American Civil Liberties Union and the Drug Policy Alliance, Judge William Nevitt confirmed the validity of California’s medical marijuana laws, rejecting the contention of San Diego, San Bernardino and Merced counties that such laws are made invalid by federal law.

Source: http://en.wikipedia.org/wiki/Superior_court

This means that California says that the DEA has to stop busting MMJ.

California cops must now, logically, stop assisting the DEA to bust MMJ.

Wow!

I note with distress that our own state attorney general "rainbow" Jerry Brown is not among those state AGs who have previously upheld this position. What happened Jerry? I thought your support would be a no-brainer. Where've you been on MMJ? Did you finally sell out?

BTW both links above point to the same article.

FYI: I looked up "Superior Court" in Wikipedia. It just means "state court" in California.

In California, all lower courts were absorbed into the superior courts after 1998. The lower courts now exist only as mere administrative subdivisions of the superior courts. The superior courts are legally no longer superior to any other courts. Thus, the term "superior court" persists in California only as a matter of tradition.

Source: http://en.wikipedia.org/wiki/Superior_court

[Skoobie Dew]

Originally Posted by HappaGuy

I note with distress that our own state attorney general "rainbow" Jerry Brown is not among those state AGs who have previously upheld this position.
Isn't his nickname moonbeam?

From wiki
As Governor, Brown proposed the establishment of a state space academy and the purchasing of a satellite that would be launched into orbit to provide emergency communications for the state—a proposal similar to one that would indeed eventually be adopted by the state. In 1978, Chicago Tribune columnist Mike Royko nicknamed Brown "Governor Moonbeam" because of the latter idea