AUMA 2016, Prop. 64: Medical Marijuana Provisions

Proposition 64 Section 5. USE OF MARIJUANA FOR MEDICAL PURPOSES.

The Adult Use of Marijuana Act (AUMA) retains the following state laws: Prop 215 Compassionate Use Act, HS 11362.5; AB 243 & 266, SB 643 MMRSA Medical Marijuana Regulation and Safety Act, Business and Health and Safety Codes; SB 420 Medical Marijuana Program Act, HS 11362.7 et seq., as amended by MMRSA. The statewide immunity on collective defense will expire in 2018, whether or not the AUMA initiative passes. In addition, AUMA provides for expanded privacy rights, more affordable state ID cards, protects custodial rights, allows for repeal of prohibition laws.

Quick Links to AUMA Sections on this Page that Protect Prop 215Expand privacy rightsAddress state ID cardsEstablish custodial or parental rightsEncourage repeal of prohibitionsMedical marijuana provisions and patient protections compiled from elsewhere in the Adult Use ActCost reduction for state medical marijuana program ID cards  • Patients get sales tax exemption with voluntary state ID cardPatient and personal gardens exempt from commercial license requirementsPatient and personal gardens exempt from production taxExisting businesses given preference •  For non-medical marijuana protections see the personal adult use section

Follow this link to see the legal mechanism that AUMA uses to specifically protect the Compassionate Use Act (Prop 215 / HS 11362.5).

Visit the official AUMA 2016 Campaign Website
Visit the Friends of AUMA 2016 Website
Visit Drug Policy Action‘s AUMA Website

Key to text: Regular font is existing law, strike through text is deleted from current law, italic is new language, italic strikethrough is deleted as amended.

Sections 11362.712, 11362.713, 11362.84 and 11362.85 are added to the Health and Safety Code, and 11362.755 of the Health and Safety Code is amended to read:

11362.712.

(a) Commencing on January 1, 2018, a qualified patient must possess a physician’s recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code. Failure to comply with this requirement shall not, however, affect any of the protections provided to patients or their primary caregivers by Section 11362.5.

(b) A county health department or the county’s designee shall develop protocols to ensure that, commencing upon January 1, 2018, all identification cards issued pursuant to Section 11362.71 are supported by a physician’s recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code.

11362.713.

(a) Information identifying the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, received and contained in the records of the Department of Public Health and by any county public health department are hereby deemed “medical information” within the meaning of the Confidentiality of Medical Information Act (Civil Code§ 56, et seq.) and shall not be disclosed by the Department or by any county public health department except in accordance with the restrictions on disclosure of individually identifiable information under the Confidentiality of Medical Information Act.

(b) Within 24 hours of receiving any request to disclose the name, address, or social security number of a patient, their medical condition, or the name of their primary caregiver, the Department of Public Health or any county public health agency shall contact the patient and inform the patient of the request and if the request was made in writing, a copy of the request.

(c) Notwithstanding Section 56.10 of the Civil Code, neither the Department of Public Health, nor any county public health agency, shall disclose, nor shall they be ordered by agency or court to disclose, the names, addresses, or social security numbers of patients, their medical conditions, or the names of their primary caregivers, sooner than the 10th day after which the patient whose records are sought to be disclosed has been contacted.>

(d) No identification card application system or database used or maintained by the Department of Public Health or by any county department of public health or the county’s designee as provided in Section 11362.71 shall contain any personal information of any qualified patient, including but not limited to, the patient’s name, address, social security number, medical conditions, or the names of their primary caregivers. Such an application system or database may only contain a unique user identification number, and when that number is entered, the only information that may be provided is whether the card is valid or invalid.

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 a fee for all costs incurred by the county or the county’s designee for administering the program pursuant to this article.

(b) In no event shall the amount of the fee charged by a county health department exceed $100 per application or renewal.

(c) 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.

(d) Upon satisfactory proof that a qualified patient, or the legal guardian of a qualified patient under the age of 18, is a medically indigent adult who is eligible for and participates in the County Medical Sen;ices Program, the fee established pursuant to this section shall be waived.

(e) In the event the fees charged and collected by a county health department are not sufficient to pay for the administrative costs incurred in discharging the county health department’s duties with respect to the mandatory identification card system, the Legislature, upon request by the county health department, shall reimburse the county health department for those reasonable administrative costs in excess of the fees charged and collected by the county health department.

11362.84.

The status and conduct of a qualified patient who acts in accordance with the Compassionate Use Act shall not, by itself, be used to restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court.

11362.85.

Upon a determination by the California Attorney General that the federal schedule of controlled substances has been amended to reclassify or declassify marijuana, the Legislature may amend or repeal the provisions of the Health and Safety Code, as necessary, to conform state law to such changes in federal law

Specific mechanism of Prop. 64 that protects Prop. 215

Prop 215, the CUA, section 11362.5 (d) says, “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient.” (No quantity limits, as upheld both by People v Mower and Kelly.) The Adult Use of Marijuana Act, section 11357 (a) begins with the words: “Except as authorized by law” and 11358 states in mid sentence “except as otherwise provided by law.” So the limits on non-medical use and cultivation in AUMA specifically included Prop 215 and keep medical marijuana patients exempt.

Furthermore, AUMA Section 10: Amendment: “The Legislature may by majority vote amend the provisions of this Act contained in Sections 5 [Medical Marijuana Provisions] and 6 to implement the substantive provisions of those sections, provided that such amendments are consistent with and further the purposes and intent of this Act as stated in Section 3.” Prop 215 was a separate voter initiative that is not included in AUMA Section 5, Medical Marijuana Provisions, so therefore the legislature is not authorized to change it.


Medical marijuana provisions and protections compiled from elsewhere in the Adult Use Act 

Click here to read the full text of the AUMA 2016 initiative

Click here to read the entire AUMA 2016 medical use section

Note: The terms Prop 215, HS11362.5 and the Compassionate Use Act all refer to the same law. SB420, MMRSA and court rulings, such as tne “Kelly” decision, are all laws pertaining to the Compassionate Use Act.

Health and Safety Code HS 11362.2(b)(2) Notwithstanding paragraph (1), no city, county, or city and county may completely prohibit persons engaging in the actions and conduct [cultivating cannabis] under paragraph (3) of subdivision (a) of Section 11362.1 inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence that is fully enclosed and secure.

HS 11362.3(f) Nothing in this section shall be construed or interpreted to amend, repeal, affect, restrict, or preempt laws pertaining to the Compassionate Use Act of 1996.

HS 11362.45 Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: (i) Laws pertaining to the Compassionate Use Act of 1996.

Section 5 of the AUMA initiative deals with medical marijuana, as posted above, but perhaps most importantly we see these:

HS 11362.712. (a) Commencing on January 1, 2018, a qualified patient must possess a physician’s recommendation that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code. Failure to comply with this requirement shall not, however, affect any of the protections provided to patients or their primary caregivers by Section 11362.5.

HS 11362.84. The status and conduct of a qualified patient who acts in accordance with the Compassionate Use Act shall not, by itself, be used to restrict or abridge custodial or parental rights to minor children in any action or proceeding under the jurisdiction of family or juvenile court. (FYI, Jennifer Ani wrote this section.)

Business and Professions Code BPC 26054.2 (a) A licensing authority shall give priority in issuing licenses under this division to applicants that can demonstrate to the authority’s satisfaction that the applicant operated in compliance with the Compassionate Use Act and its implementing laws before September 1, 2016, or currently operates in compliance with Chapter 3.5 of Division 8.

BPC 26067. (a) The Department of Food and Agriculture shall establish a Marijuana Cultivation Program to be administered by the secretary. The secretary shall administer this section as it pertains to the cultivation of marijuana. For purposes of this division, marijuana is an agricultural product. (e) (1) This section does not apply to the cultivation of marijuana in accordance with Section 11362.1 of the Health and Safety Code or the Compassionate Use Act.

BPC 34011 (g) “The sales and use tax imposed by Part 1 of this division shall not apply to retail sales of medical cannabis, medical cannabis concentrate, edible medical cannabis products or topical cannabis as those terms are defined in Chapter 3.5 of Division 8 of the Business and Professions Code when a qualified patient (or primary caregiver for a qualified patient) provides his or her card issued under Section 11362.71 of the Health and Safety Code and a valid government- issued identification card.”

BPC 34012. (a) Effective January 1, 2018, there is hereby imposed a cultivation tax on all harvested marijuana that enters the commercial market … (j) The tax imposed by this section [commercial market] shall be imposed on all marijuana cultivated in the state pursuant to rules and regulations promulgated by the board, but shall not apply to marijuana cultivated for personal use under Section 11362.1 of the Health and Safety Code or cultivated by a qualified patient or primary caregiver in accordance with the Compassionate Use Act.

28 thoughts on “AUMA 2016, Prop. 64: Medical Marijuana Provisions”

  1. It’s clear that the AUMA merely acknowledges the MMRSA’s repeal of H&S Section 11362.775, which is the straw man for all the angst around Implementation of 215. While I’ll be the first to point out the fraud and abuse that flourished under the relatively undefined construct of “collective” (and I gladly note that the AUMA reference uses that word specifically), I continue to legally contest the undermining of “cooperative” cultivation as a valid legal premise by which patients can rightfully meet their own needs. Cooperative cultivation was recognized in AG dan lungren’d first post-215 memo as arguably legal under the narrow exemption of the CUA . Cooperative cultivation was never challenged under state law proof to passage of SB 420 . Therefore it’s difficult to maintain that the repeal of 11362.775 in anyway legitimately abrogates cooperative ownership of a patient cultivation project.

    1. Words can be confusing, especially when different people use them in different ways all the time. This happens quite a bit with “collective and cooperative” discussions, so let’s define terms:

      1. Informal collective. A small group of patients and/or caregivers who share cultivation space, costs and (according to the interpretation of many police agencies) labor in more or less equal fashion. This is probably what the authors of SB 420 had in mind, and it remains a useful concept.

      2. Commercial collective. It’s unclear that 11362.775 ever sanctioned the application of the “collective or cooperative” language in SB 420, but shit happens. The Attorney General guidelines note the existence of consumer and agricultural cooperatives in the California Corporations Code, but most of today’s commercial collectives use the nonprofit mutual benefit corporation instead. It’s almost a moot point because 11632.775 will be repealed as soon as Jan. 1, 2019.

      Now, to the author’s objections, MMRSA creates a form of mini-collective of up to 500 square feet for primary caregivers who care for up to five patients (100 square feet/patient). The mini-collective is exempt from state commercial licensing but is subject to local regulation or bans. Cultivation in excess of those areas is considered commercial by default, regardless of patient or caregiver status, so we could see some Kelly-style challenges from patients with greater needs who can prove they’re only growing for themselves. Whether this approach makes any sense or not, it’s part of state law now and it’s the part most relevant to your question.

      Here’s where AUMA comes in, to me: It locks in small-scale personal cultivation indoors, even in current “ban” areas. It does so for adults 21 and up regardless of patient status, which is a bit of a boon for people living in areas where cannabis physicians are scarce. No, it doesn’t say groups of adults can form their own collectives and grow large gardens wherever they want. But if you understand a little bit about how “cloud” computing works, with huge quantities of data stored across large arrays of distributed servers, personal cultivation offers many of the same benefits. Small-scale, distributed cultivation that can a) greatly reduce costs for patients and non-patients alike, and b) help to soften the bumpy road ahead as commercial cannabis businesses and licensing come online, starting in urban areas of the state and spreading from there.

      1. Yes I see how the small scale gardens are a boon. I totally disagree with the eight gram concentrate limit but that can be remedied by obtaining a doctors note . As long as medical cannabis remains unaffected I am starting to see the good. No law will be perfect and the status quo is NUTS . So as long as less citizens are going to jail I will vote for AUMA . I am still having a hard time with this though .

        1. 215 Medical is destroyed w 64 because the 100 sq foot limit / People v Mower and Kelly says patients can have as much as they need under 215.
          64 makes patients into criminals if they grow outdoors or in an area over 100 sq feet or if they don’t incriminate themselves and get a permit that gets their address published in the paper and online because it become public information ..
          64 =
          1. warrant less daytime inspections,
          2. agree to not possess any firearms,
          3. agree to limit water usage
          4. the requirement that you abide by all building codes
          5. requiring a building inspector to come to your home
          6. Code enforcement can regularly check for mold

          This is an attack on patients .. when you are sick you need privacy not inspectors. If you are sick a few Cannabis plants gets you out of bed into the sunshine, 64 did not consider patients needs .. patients w issues cant pay for expensive lights, and they need to go into the sunshine .. no one cares if patients suffer as long as they can say weed is legal in CA now 🙁

          1. Hi, Sarah, fortunately whoever told you all this was deceiving you. Let’s go down the list, Prop. 64 does not change Prop. 215, the authors took patients into consideration, it does not ban outdoor grows, it does not require a permit, it does not allow warrantless daytime inspections except for licensed businesses — not homeowners. It doesn’t mention firearms, water usage is determined by the water board, not the initiative, you already have to abide by all building codes, you already have to allow a building inspector check on home additions, and where did you even come up with that comment about mold? That’s ridiculous. Somebody’s been lying to you and you should keep track of who told you all this because you cannot trust them in the future, they are a liar. Nothing personal, just a statement of fact.

          2. you say i am misinformed but u dont mention city can now set rules like no outdoor growing and cities can require patients to purchase permits for hundreds of dollars please see article below for what is really happening .. patients grow site must be enclosed with a six foot (6’) high fence within an area one hundred (100) square feet or less.

            http://cannabusinesslaw.com/2017/02/city-of-clearlake-with-the-aim-of-curbing-illegal-grows-cultivation-ordinance-creates-steep-penalties-for-non-compliance/

          3. Hi, Sarah, thanks for your note. You are right about the ill intent of localities to discriminate against cannabis consumers and patients, where you are misinformed is in thinking it was caused by Prop. 64, which legalized adult use. Those types of unfair practices you mentioned were allowed by Prop. 215, SB 420 and the Medical Cannabis Regulation and Safety Act. What Prop. 64 did was to make it so cannabis is completely legal to grow under state law, localities cannot ban cultivation — only restrict it to greenhouses or indoor gardens, and give patients and homegrowers and businesses alike a right to sue local governments and state agencies if their regulations are “unreasonable or impracticable.” In other words, instead of complaining about Prop. 64, which you don’t seem to understand, you should be getting a group of patients together to sue the city, county or whomever. I supported Prop. 64, not the little tricks that drug warriors continue to use to undermine it. I support people fighting for their rights, go ahead and do so. Just don’t blame Prop. 64, which helped everyone out. Put the blame where it belongs, Prop. 215 and the legislature, then stand up to the bigots and take them on using the tools that Prop. 64 provided.

  2. Hey! This post could not be written any better! Reading through this post reminds me of my good old room mate!
    He always kept talking about this. I will forward this write-up to him.
    Pretty sure he will have a good read. Many thanks for sharing!

  3. Dear Mr. Conrad I a marijuana card holder in Arizona, will be traveling this summer thru to see my sister.Is there any I CAN GET CERTIFIED IN CALIFORNIA. I had stroke on has right side which is dominate

    1. California law does not require that patients be citizens, it requires that the doctor be a licensed California physician. The medical board and legislature have set basic standards for doctors to follow (in person evaluation for first diagnosis, medical record or new personal evaluation for medical marijuana recommendation, doctor has to be in good standing with Med Board) but if the doctor does not give due diligence, the patient’s approval remains valid. Best wishes to you and your sister.

  4. Hello Chris.

    You and I have both been involved in the legal issues surrounding cannabis, and particularly use by individuals (medical and otherwise) for a very long time now. I am always glad to see you (live or in the news, etc), and have appreciated greatly your help over the years.

    Murphy’s law – particularly with help from the cops and others who profit on the caging of humans – is well advanced in most areas of human endeavor, and I fear it will wreak a great deal of havoc with this overly wide-ranging, needlessly restrictive, “prohibition lite” proposal.

    The mere fact that Sean Parker (an individual whose good sense and motives I question deeply) waved his magic money-wand and blessed the AUMA does not mean it should have been supported by us over the other offerings this year.

    I do not agree that “”‘legalization’ at any cost” is good policy, and some of my concerns are actually aired by others at these two links:

    https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjDtv777cjMAhUC9GMKHYT8BJ4QFggjMAA&amp,url+“hoax_site_attacks_legalization_initiative”

    http://freedom/2015/12/11/go-sean-parker!/

    I have read a lot of law, and written a lot of legal papers over the past 18 years, and I will bet you lunch that the AUMA will cause us all a great deal of trouble in the years ahead should it pass. I think the argument that we MUST pass something in CA (“no matter what the initiative is!”) in order to “maintain momentum” is a complete fallacy given the current and evolving demographics.

    I do appreciate very much the PDF penalty comparisons, and other materials on your site here, and as always, I respect your good intentions and honorably-held opinions. I have seen you attacked for your support of the AUMA on other places in the web, and am deeply affronted by such – just as I was of my own mistreatment by the national NORML boards for daring to question the wisdom of backing the AUMA over the options available (or a different legislative model), and by whoever the little prick is that is their censor/moderator there; ask me sometime and I will forward his emails to you. I did copy some of the stuff to CA NORML, who I consider to be much more intellectually honest and forthright about the issues surrounding the AUMA, by the way.

    Anyway, I just wanted to say that over all, I honestly believe this initiative WILL NOT do all the good that is being touted, and that it is loaded with conflicts, overly complicated, an open invitation to undermining by every town, city, county, and local government, etc, and will continue to subject most of the state to harassment, big fines, seizures, criminal prosecutions, etc. I am certain that the local governments will seize on language in here to re-litigate many issues they have lost before in regards to Prop 215 and SB 420 as well. I think a lot of people, when they learn exactly how little this thing actually does, are going to be pretty mad.

    Because of this, I find myself in the extremely unhappy position of actually being opposed to a “pro marijuana” initiative. The AUMA is a badly-written law, and doesn’t do what “legalization” should do. It also fails to follow the golden, rule; KISS.

    Best wishes as always.

  5. AUMA doesn t affect medical marijuana. That s the state legislature making those changes. Again, the medical excuse marijuana has no moral legs to stand on. Not until they are purged of recreational consumers.

    1. Actually, while it’s true that a lot of dispensaries let you take photos, only medical marijuana is ‘legal’ in California and that is essentially only a court defense because the courts have held that a patient can be arrested and prosecuted but they can get a pretrial evidentiary hearing and a jury instruction for a limited immunity. People’s misunderstanding about this gets a lot of people into trouble. Prop 215 doesn’t even allow patients to share with each other, let alone sell. That is why it is so important for people to Vote YES on Prop 64 this November, the Adult Use of Marijuana Act, to legalize nonmedical adult use of marijuana. People won’t even need a doctor’s note to buy up to an ounce of bud and 8 grams of concentrate at a licensed and legal shop, and it also allows for onsite consumption. Remember to vote Yes.

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