LEGAL UPDATE Jeremy Valverde, CDFW Yvonne West, SWRCB Changes to - - PDF document
3/2/2018 LEGAL UPDATE Jeremy Valverde, CDFW Yvonne West, SWRCB Changes to medical use model and progression toward legalization Compassionate Use Act (CUA)/ Proposition 215. November 5, 1996 Medical Marijuana Program Act / Senate
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Jeremy Valverde, CDFW Yvonne West, SWRCB
■ Compassionate Use Act (CUA)/ Proposition 215. November 5, 1996 ■ Medical Marijuana Program Act / Senate Bill 420. January 1, 2004 ■ Medical Cannabis Regulation and Safety Act/ Senate Bill 837. June 27, 2016 ■ Adult Use of Marijuana Act/ Proposition 64. November 8, 2016 ■ Medical and Adult Use Regulation and Safety Act/ Senate Bill 94. June 27, 2017
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■ Licensing Authorities: CDFA, BCC, DPH ■ CDFA: Cultivation Licenses (Business and Professions Code Section 26000 et seq.) – Annual Licenses: ■ Requires: – 1602 compliance (in advance) or written verification from CDFW that agreement not needed (§ 26060.1(b)(3).) – Local permit or authorization (§ 26055(g)(2).) – Identification of water supply [More here from SWRCB?] (§ 26060.1(a).) ■ Renewable annually – Temporary Licenses (§ 26050.1) ■ Requires – Local authorization or permit, or at minimum “…written statement or reference that clearly indicates the local jurisdiction intended to grant permission…” ■ May be renewed for additional 90 day periods if complete annual license application submitted
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■ Licensing authority: BCC (Bureau of Cannabis Control) – Allowing existing product to enter marketplace, must be marked as “untested” – Transportation to distribution facility requires shipping manifest that must be carried in the transport vehicle when transporting cannabis products. The shipping manifest must be provided to law enforcement upon request
■ For more info on what must be included in a shipping manifest, see: http://bcc.ca.gov/about_us/documents/18-030_shipping_factsheet.pdf
– BCC licenses temporary events, event sales and consumption
■ As in the “Emerald Cup”
– Like CDFA, BCC issuing temporary, 120-day licenses
■ Requires local authorization, premises description, landowner approval
■ Cultivation for reasonable personal medical use by a qualified patient or a qualified caregiver exempt from license requirement, as long as patient or caregiver does not donate, sell, etc. cannabis to others. (§ 26033, H&S § 11362.7.) – 8 ounces of dried cannabis per patient – 6 mature plants per patient – 12 immature plants – An amount consistent with patient’s need as recommended by a physician ■ No license needed for medical collective operating under requirements identified in Health and Safety Code section 11362.775 and and in in poss possession
seller’s er’s permi permit from California Department of Tax and Fee Administration – Medical collective exception ends January 9, 2019. Thereafter, only either:
■ Personal medical use or qualified caregiver ■ Licensed medical or adult use commercial cultivation
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■ Cultiv Cultivati ation: Up to six living plants within a single private residence and any processed in in exce cess of ss of 28.5 grams 28.5 grams in a locked space, not visible from a public place ■ Must comply with local ordinance (but locals cannot altogether ban private cultivation) – Locals must allow private cultivation inside a private residence or inside an accessory structure to a private residence located on the grounds of a residence that is fully enclosed and secure. ■ Posse Possession: If 21 y.o. or older, legal to: – Possess, transport, purchase, give away (to adults) no more than 28.5 grams or 8 grams of concentrated – Possess, cultivate, process no more than 6 plants and whatever is produced from the plants (may be more than 28.5 grams) – Smoke, ingest, etc. – Cannabis or cannabis products deemed lawful not contraband
■ That which is unlicensed or unpermitted, in excess of what is allowed for adult use, and without the required medical nexus (until 2019) ■ Cultivation of more than 6 plants a misdemeanor, possible felony where: – Prior serious and violent felony – Two or more prior convictions for illegal cultivation – Enumerated environmental crimes
■ Now includes FGC 2000 – (H&S § 11358)
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■ FGC section 12025: Administrative Penalties Action. – Violations of FGC sections 1602, 5650, 5652, and 2000, and Penal Code sections 374.3 (dumping), 374.8 (deposit hazardous substance), and 384a (cut plant matter), in connection with the cultivation of a controlled substance,
– Can charge owner or legal occupier (private land grows) by complaint filed with Office of Administrative Hearings (OAH) civil penalties, up to $20,000 each violation
■ Since October 2017: six complaints filed and $569,000 in penalties ordered
■ Referral to Local Prosecutor for criminal or civil prosecution: – Health and Safety Code section 11358, environmental crime elevates to potential felony ■ Referral to Office of Attorney General
■ “A period of adjustment…” ■ Communication/ collaboration with CDFA and counties ■ Compliance inspections of permitted growers in era of self-certification ■ Identification, prioritization and inspection of threatened watersheds ■ Complaint-driven inspections & joint operations with local law enforcement ■ CHALLENGING AND LIKELY SCENARIOS: – State license but no local authorization or the reverse – Fully permitted and licensed with ongoing FGC and Water Code violations – Destruction/ eradication no longer operating standard – Temporary licensing by CDFA and BCC and no track and trace
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MAU-what?
Requirements for Regulated Licensed Activity, Business and Professions Code section 26032
■ The actions of the licensee, agents, employees not be subject to [arrest, prosecution, sanction] under state law, if all of the following are met with regard to the activity: – Permitted pursuant to a state license – Permitted pursuant to local authorization, license or permit – Conducted in accordance with requirements of this division
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■ (a) Licensing authorities may issue state licenses only to qualified applicants. ■ (b) Revocation of a state license under this division shall terminate the ability of the licensee to operate until a new license is obtained. ■ (c) A licensee shall not change or alter the premises in a manner which materially or substantially alters the premises, the usage of the premises, or the mode or character of business operation conducted from the premises, from the plan on file with the application, unless and until written approval by the licensing authority has been obtained. ■ (d) Licensing authorities shall not approve an application for a state license under this division if approval of the state license will violate the provisions of any local
Business and Professions Code Section 26060.1 – License application requirements
■ (a) An application for a license for cultivation issued by the department shall identify the source of water supply ■ (b) The department [CDFA] shall include in any license for cultivation all of the following: – (1) Conditions requested by SWRCB or CDFW to protect fish and wildlife and
established pursuant to Water Code section 13149. – (2) Any relevant mitigation requirement the department identifies as part of a CEQA document. – (3) A condition that the licenser shall not be effective until the licensee has demonstrated compliance with FGC section 1602, or has received written verification that an LSA is not required.
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■ (a) The actions of a licensee, its employees, and its agents are not unlawful under state law and shall not be an offense subject to arrest, prosecution, or other sanction under state law, or be subject to a civil fine or be the basis of seizure or forfeiture of assets under state law if they are all of the following: – Permitted pursuant to a state license – Permitted pursuant to a local authorization, license, or permit issued by the local jurisdiction, if any – Conducted in accordance with the requirements of this division and regulations adopted pursuant to this division
■ (a) The licensing authority shall deny an application if either the applicant, or the premises for which a state license is applied, do not qualify for licensure under this division ■ (b) The licensing authority may deny the application for licensure or renewal of a state license if any of the following conditions apply: – (1) Failure to comply with any rule or regulation adopted pursuant to this division or any requirement imposed to protect natural resources, including, but not limited to, protections for instream flow, water quality, and fish and wildlife – (6) The applicant, or any of its officers, directors, or owners, has been subject to fines, penalties, or otherwise been sanctioned under FGC section 12025 or 12025.1 – (7) The applicant, or any of its officers, directors, or owners, has been sanctioned by a licensing authority or a city or county for unauthorized commercial cannabis activities, or has had a license suspended or revoked under this division in the three years preceding the application
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Business and Professions Code Section 26031 – Suspension or revocation of licenses
■ (b) A licensing authority may suspend or revoke a license when a local agency has notified the licensing authority that a licensee within its jurisdiction is in violation of state rules and regulations relating to commercial cannabis activities, and the licensing authority, through an investigation, has determined that the violation is grounds for suspension
■ 26069(c)(1): the department [CDFA], in consultation with, but not limited to, the bureau, shall implement a unique identifier program for cannabis. In implementing the program, the department shall consider issues including, but not limited to, water use and environmental impacts. If the State Water Resources Control Board or the Department of Fish and Wildlife finds, based on substantial evidence, that cannabis cultivation is causing significant adverse impacts on the environment in a watershed or other geographic area, the department shall not issue new licenses or increase the total number of plant identifiers within that watershed or area – Identifier = each mature plant.
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■ Creates an Environmental Restoration and Protection Account. Funds distributed as follows: – (A) To CDFW and Parks Department for the remediation and restoration of environmental damage in watersheds impacted by cannabis cultivation and related activities. Including damage that occurred before the enactment of this section [Priority allocation for first five years] – (B) To DFW and Parks Department for stewardship and operation of state-
illegal cultivation – (C) To DFW to assist in funding the watershed enforcement program and multiagency task force established pursuant to subdivisions (b) and (c) of FGC section 12029 ■ Total fund amount: 20% of revenue after dedicated allocations