BILL TEXT
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 23, 2009
An act to add Section 22394.1 to, and to add Chapter 14.5
(commencing with Section 25400) to Division 9 of, the Business and
Professions Code, to amend Section 68152 of the Government Code, to
amend Sections 11014.5, 11054, 11357, 11364.5, 11370, 11470, 11479,
11488, 11532, 11703, and 11705 of, to add Division 10.3 (commencing
with Section 11720) to, and to repeal Sections 11358, 11359, 11360,
11361, and 11485 of, the Health and Safety Code, to add Part 14.6
(commencing with Section 34001) to Division 2 of the Revenue and
Taxation Code, to amend Sections 23222 and 40000.15 of the Vehicle
Code, and to amend Section 18901.3 of the Welfare and Institutions
Code, relating to marijuana.
LEGISLATIVE COUNSEL'S DIGEST
AB 390, as introduced, Ammiano. Marijuana Control, Regulation, and
Education Act.
Existing state law provides that every person who possesses,
sells, transports, or cultivates marijuana, concentrated cannabis, or
derivatives of marijuana, except as authorized by law, is guilty of
one or more crimes.
This bill would remove marijuana and its derivatives from existing
statutes defining and regulating controlled substances. It would
instead legalize the possession, sale, cultivation, and other conduct
relating to marijuana and its derivatives by persons 21 years of age
and older, except as specified. It would set up a wholesale and
retail marijuana sales regulation program, including special fees to
fund drug abuse prevention programs, as specified, to commence after
regulations concerning the program have been issued, and federal law
permits possession and sale consistent with the program. It would ban
local and state assistance in enforcing inconsistent federal and
other laws relating to marijuana, and would provide specified
infraction penalties for violations of these new marijuana laws and
regulations, as specified. It would make other conforming changes.
By creating various infractions for violations of regulations and
laws created by this act, this bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
It is the intent of the Legislature in enacting this,
the Marijuana Control, Regulation, and Education Act, to do all of
the following:
(a) To legalize marijuana and its derivatives.
(b) To remove all existing civil and criminal penalties for adults
21 years of age or older who cultivate, possess, transport, sell, or
use marijuana, without impacting existing laws proscribing dangerous
activities while under the influence of marijuana, or certain
conduct that exposes younger persons to marijuana.
(c) To ensure that the proper regulatory apparatus for marijuana
sale and cultivation is ready when permitted by the federal
government.
(d) To raise funds and to discourage substance abuse by the
imposition of a substantial fee on the legal sale of marijuana, the
proceeds of which will support drug education and awareness.
(e) To impose a set of regulations and laws concerning marijuana
comparable to those imposed on alcohol.
(f) To impose substantial fines for violations of the
noncommercial regulations and laws concerning marijuana, which will
be applicable until and after commercial marijuana is available by
virtue of future changes in federal law.
(g) To prevent state and local agencies from supporting any
prosecution for federal or other crimes relating to marijuana that
are inconsistent with those provided in this bill.
(h) To exclude from the fees and regulations imposed by this act
marijuana that is for uses other than smoking or ingestion, and to
exclude medicinal marijuana from fees under these provisions.
(i) To encourage the federal government to reconsider its policies
concerning marijuana, and to change its laws accordingly.
SEC. 2.
Section 23394.1 is added to the Business and Professions
Code, to read:
23394.1. An off-sale general license, as provided for in Section
23394, also authorizes the sale, to consumers only and not for
resale, of marijuana, concentrated cannabis, or any of its
derivatives pursuant to the provisions of Chapter 14.5 (commencing
with Section 25400) of this division.
SEC. 3. Chapter 14.5 (commencing with Section 25400) is added to
Division 9 of the Business and Professions Code, to read:
CHAPTER 14.5. COMMERCIAL MARIJUANA PRODUCTION AND SALE
25400. For purposes of this chapter, "marijuana" means all parts
of the plant Cannabis sativa L., whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; concentrated
cannabis; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation of
the mature stalks (except the resin extracted therefrom), fiber, oil,
or cake, or the sterilized seed of the plant that is incapable of
germination.
25401.
(a) The department shall license commercial cultivators of
marijuana. The fee for the license shall be set at an amount that
will reasonably cover to costs of assuring compliance with the
regulations to be issued, but may not exceed five thousand dollars
($5,000) for an initial application, or two thousand five hundred
dollars ($2,500) per year for each annual renewal.
(b) Regulations adopted by the department pursuant to this chapter
shall require background checks of applicants be conducted. At the
request of the department, the Attorney General or any local agency
shall provide summary criminal history information to the department
as provided in Sections 11105 and 13300 of the Penal Code.
25402.
The department shall, with consideration for the risks
posed by cultivation of a valuable crop with public health
implications that is subject to significant fees, issue and enforce
regulations concerning commercial cultivators of marijuana that
provide for all of the following:
(a) Adequate security to reasonably protect against unauthorized
access to the marijuana crop at all stages of cultivation,
harvesting, drying, processing, packing, and delivery to licensed
sales outlets or wholesalers. Each licensee shall be required to
provide a detailed crop security plan, along with satisfactory proof
of the financial ability of the licensee to provide for that
security.
(b) Appropriate employment rules, including the rule that a person
under 21 years of age may not have access to marijuana during
cultivation, storage, drying, packing, or at any other time.
(c) Safeguards to assure that a person under 21 years of age may
not transport marijuana on behalf of a commercial buyer or commercial
seller.
(d) Restrictions to ensure that marijuana is not used or consumed
on the premises of a commercial cultivator.
(e) An inspection and tracking system to reasonably ensure that
all marijuana produced by the cultivator that is eventually sold is
assessed pursuant to Part 14.6 (commencing with Section 34001) of
Division 2 of the Revenue and Taxation Code.
(f) Recordkeeping consistent with the regulatory needs of the
department.
25403.
(a) The department shall license marijuana wholesalers,
who shall be allowed to package and prepare marijuana for sale, and
who shall be authorized to sell marijuana to licensed sales outlets.
The fee for the license shall be set in an amount that will
reasonably cover the costs of compliance with the regulations to be
issued, but may not exceed five thousand dollars ($5,000) for an
initial application, or two thousand five hundred dollars ($2,500)
per year for each annual renewal.
(b) The department shall issue regulations that include a
requirement that all applicants for licensure receive background
checks. At the request of the department, the Attorney General or any
local agency shall provide summary criminal history information to
the department as provided in Sections 11105 and 13300 of the Penal
Code.
25404.
The department shall, with consideration for the risks
posed by a valuable commodity with public health implications that is
subject to significant fees, issue and enforce regulations
concerning the sale and packaging of marijuana by wholesale
licensees. Those regulations shall provide for all of the following:
(a) Adequate security to reasonably protect against unauthorized
access to marijuana at all stages of the wholesaler's possession of
the marijuana, including receiving, processing, packing, storage, and
delivery to licensed sales outlets. Each wholesaler shall be
required to provide a detailed product security plan, along with
satisfactory proof of the financial ability of the licensee to
provide for that security.
(b) Appropriate employment rules, including the rule that a person
under 21 years of age may not have access to marijuana during
receiving, processing, packing, storage, and delivery or at any other
time.
(c) Safeguards to assure that a person under 21 years of age may
not transport marijuana on behalf of a commercial buyer or commercial
seller.
(d) Restrictions to ensure that marijuana is not used or consumed
on the premises of a wholesaler.
(e) An inspection and tracking system to reasonably ensure that
all marijuana received by the wholesaler that is eventually sold is
assessed pursuant to Part 14.6 (commencing with Section 34001) of
Division 2 of the Revenue and Taxation Code.
(f) Recordkeeping consistent with the regulatory needs of the
department.
25405.
The department shall issue and enforce regulations
concerning the sale of marijuana by off-sale general licensees. Those
regulations shall provide for all of the following:
(a) An inspection and tracking system to ensure that marijuana may
not be sold by a licensee if that marijuana has not been made
subject to an assessment provided for in Part 14.6 (commencing with
Section 34001) of Division 2 of the Revenue and Taxation Code.
(b) Marijuana shall be kept behind a counter in an area not
directly accessible to any customer, and shall be stored in a case
that is locked between sales.
(c) Marijuana may not be sold to anyone under 21 years of age.
(d) Punishments for violations in actions against licensees that
are in substantial accord with those applicable to the regulation of
alcohol sales, including heavy penalties for permitting persons under
21 years of age to purchase these products and other appropriate
regulatory provisions concerning such matters as the time of sale,
deliveries, and signage. It is the intent of the people in enacting
this act that the regulation of marijuana sales be consistent with
the statutory guidance regarding alcohol sales in Chapter 16
(commencing with Section 25600), to the extent that consistency is
feasible.
(e) Recordkeeping consistent with the regulatory needs of the
department.
25406.
Beginning 30 days after the operative date of the
regulations issued pursuant to this chapter, or 30 days after the
date when federal law permits the possession and sale of marijuana
consistent with this chapter, whichever is latest, the department
shall begin to enforce the provisions of this chapter.
SEC. 4. Section 68152 of the Government Code is amended to read:
68152.
The trial court clerk may destroy court records under
Section 68153 after notice of destruction and if there is no request
and order for transfer of the records, except the comprehensive
historical and sample superior court records preserved for research
under the California Rules of Court, when the following times have
expired after final disposition of the case in the categories listed:
(a) Adoption: retain permanently.
(b) Change of name: retain permanently.
(c) Other civil actions and proceedings, as follows:
(1) Except as otherwise specified: 10 years.
(2) Where a party appears by a guardian ad litem: 10 years after
termination of the court's jurisdiction.
(3) Domestic violence: same period as duration of the restraining
or other orders and renewals, then retain the restraining or other
orders as a judgment; 60 days after expiration of the temporary
protective or temporary restraining order.
(4) Eminent domain: retain permanently.
(5) Family law, except as otherwise specified: 30 years.
(6) Harassment: same period as duration of the injunction and
renewals, then retain the injunction as a judgment; 60 days after
expiration of the temporary restraining order.
(7) Mental health (Lanterman Developmental Disabilities Services
Act and Lanterman-Petris-Short Act): 30 years.
(8) Paternity: retain permanently.
(9) Petition, except as otherwise specified: 10 years.
(10) Real property other than unlawful detainer: retain
permanently if the action affects title or an interest in real
property.
(11) Small claims: 10 years.
(12) Unlawful detainer: one year if judgment is for possession of
the premises; 10 years if judgment is for money.
(d) Notwithstanding subdivision (c), any civil or small claims
case in the trial court:
(1) Involuntarily dismissed by the court for delay in prosecution
or failure to comply with state or local rules: one year.
(2) Voluntarily dismissed by a party without entry of judgment:
one year.
Notation of the dismissal shall be made on the civil index of
cases or on a separate dismissal index.
(e) Criminal.
(1) Capital felony (murder with special circumstances where the
prosecution seeks the death penalty): retain permanently. If the
charge is disposed of by acquittal or a sentence less than death, the
case shall be reclassified.
(2) Felony, except as otherwise specified: 75 years.
(3) Felony, except capital felony, with court records from the
initial complaint through the preliminary hearing or plea and for
which the case file does not include final sentencing or other final
disposition of the case because the case was bound over to the
superior court: five years.
(4) Misdemeanor, except as otherwise specified: five years.
(5) Misdemeanor alleging a violation of the Vehicle Code, except
as otherwise specified: three years.
(6) Misdemeanor alleging a violation of Section 23103, 23152, or
23153 of the Vehicle Code: 10 years.
(7) Misdemeanor alleging a violation of Section 14601, 14601.1,
20002, 23104, 23105, 23109, or 23109.1 of the Vehicle Code: five
years.
(8) Misdemeanor alleging a marijuana violation under subdivision
(b), (c), (d), or (e) (a) or (b) of
Section 11357 of the Health and Safety Code , or subdivision
(b) of Section 11360 of the Health and Safety Code in
accordance with the procedure set forth in Section 11361.5 of the
Health and Safety Code: records shall be destroyed two years from the
date of conviction or from the date of arrest if no conviction.
(9) Misdemeanor, infraction, or civil action alleging a violation
of the regulation and licensing of dogs under Sections 30951 to
30956, inclusive, of the Food and Agricultural Code or violation of
any other local ordinance: three years.
(10) Misdemeanor action resulting in a requirement that the
defendant register as a sex offender pursuant to Section 290 of the
Penal Code: 75 years. This paragraph shall apply to records relating
to a person convicted on or after September 20, 2006.
(11) Infraction, except as otherwise specified: three years.
(12) Parking infractions, including alleged violations under the
stopping, standing, and parking provisions set forth in Chapter 9
(commencing with Section 22500) of Division 11 of the Vehicle Code:
two years.
(f) Habeas corpus: same period as period for retention of the
records in the underlying case category.
(g) Juvenile.
(1) Dependent (Section 300 of the Welfare and Institutions Code):
upon reaching age 28 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed pursuant to subdivision (c) of
Section 389 of the Welfare and Institutions Code.
(2) Ward (Section 601 of the Welfare and Institutions Code): upon
reaching age 21 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed under subdivision (d) of Section
781 of the Welfare and Institutions Code.
(3) Ward (Section 602 of the Welfare and Institutions Code): upon
reaching age 38 under subdivision (a) of Section 826 of the Welfare
and Institutions Code. Sealed records shall be destroyed upon court
order when the subject of the record reaches the age of 38 under
subdivision (d) of Section 781 of the Welfare and Institutions Code.
(4) Traffic and some nontraffic misdemeanors and infractions
(Section 601 of the Welfare and Institutions Code): upon reaching age
21 or five years after jurisdiction over the person has terminated
under subdivision (c) of Section 826 of the Welfare and Institutions
Code. May be microfilmed or photocopied.
(5) Marijuana misdemeanor under subdivision (e)
(b) of Section 11357 of the Health and Safety Code in
accordance with procedures specified in subdivision (a) of Section
11361.5 of the Health and Safety Code: upon reaching age 18 the
records shall be destroyed.
(h) Probate.
(1) Conservatorship: 10 years after decree of termination.
(2) Guardianship: 10 years after the age of 18.
(3) Probate, including probated wills, except as otherwise
specified: retain permanently.
(i) Court records of the appellate division of the superior court:
five years.
(j) Other records.
(1) Applications in forma pauperis: any time after the disposition
of the underlying case.
(2) Arrest warrant: same period as period for retention of the
records in the underlying case category.
(3) Bench warrant: same period as period for retention of the
records in the underlying case category.
(4) Bond: three years after exoneration and release.
(5) Coroner's inquest report: same period as period for retention
of the records in the underlying case category; if no case, then
permanent.
(6) Court orders not associated with an underlying case, such as
orders for destruction of court records for telephone taps, or to
destroy drugs, and other miscellaneous court orders: three years.
(7) Court reporter notes: 10 years after the notes have been taken
in criminal and juvenile proceedings and five years after the notes
have been taken in all other proceedings, except notes reporting
proceedings in capital felony cases (murder with special
circumstances where the prosecution seeks the death penalty and the
sentence is death), including notes reporting the preliminary
hearing, which shall be retained permanently, unless the Supreme
Court on request of the court clerk authorizes the destruction.
(8) Electronic recordings made as the official record of the oral
proceedings under the California Rules of Court: any time after final
disposition of the case in infraction and misdemeanor proceedings,
10 years in all other criminal proceedings, and five years in all
other proceedings.
(9) Electronic recordings not made as the official record of the
oral proceedings under the California Rules of Court: any time either
before or after final disposition of the case.
(10) Index, except as otherwise specified: retain permanently.
(11) Index for cases alleging traffic violations: same period as
period for retention of the records in the underlying case category.
(12) Judgments within the jurisdiction of the superior court other
than in a limited civil case, misdemeanor case, or infraction case:
retain permanently.
(13) Judgments in misdemeanor cases, infraction cases, and limited
civil cases: same period as period for retention of the records in
the underlying case category.
(14) Minutes: same period as period for retention of the records
in the underlying case category.
(15) Naturalization index: retain permanently.
(16) Ninety-day evaluation (under Section 1203.03 of the Penal
Code): same period as period for retention of the records in the
underlying case category, or period for completion or termination of
probation, whichever is longer.
(17) Register of actions or docket: same period as period for
retention of the records in the underlying case category, but in no
event less than 10 years for civil and small claims cases.
(18) Search warrant: 10 years, except search warrants issued in
connection with a capital felony case defined in paragraph (7), which
shall be retained permanently.
(k) Retention of the court records under this section shall be
extended as follows:
(1) By order of the court on its own motion, or on application of
a party or an interested member of the public for good cause shown
and on those terms as are just. A fee shall not be charged for making
the application.
(2) Upon application and order for renewal of the judgment to the
extended time for enforcing the judgment.
SEC. 5. Section 11014.5 of the Health and Safety Code is amended
to read:
11014.5. (a) "Drug paraphernalia" means all equipment, products
, and materials of any kind which
that are designed for use or marketed for use ,
in planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing,
preparing, testing, analyzing, packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling, or otherwise
introducing into the human body a controlled substance in violation
of this division. It includes, but is not limited to:
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