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 215 • Expand privacy rights • Address state ID cards • Establish custodial or parental rights • Encourage repeal of prohibitions • Medical marijuana provisions and patient protections compiled from elsewhere in the Adult Use Act • Cost reduction for state medical marijuana program ID cards • Patients get sales tax exemption with voluntary state ID card • Patient and personal gardens exempt from commercial license requirements • Patient and personal gardens exempt from production tax • Existing businesses given preference • For non-medical marijuana protections see the personal adult use section
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:
(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.
(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.
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.
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.
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
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.