Key Pot Bills Introduced in Sacramento: Employment Rights, Cultivation Decrim, MMJ Regulation on the Table

Cal NORML Reports March, 2011

SACRAMENTO. Several important cannabis reform bills have been introduced to the California legislature. They include protecting Prop 215 patients from workplace discrimination, reducing cultivation penalties, legalizing industrial hemp, and establishing full-scale medical marijuana licensing schemes.

In the State Senate, Mark Leno (D-SF), has re-introduced a bill to protect medical marijuana patients from workplace discrimination. The Medical Cannabis Patient Employment Non-Discrimination Bill, SB 129, would declare it unlawful for an employer to discriminate against a person because of his or her status as a qualified patient or a positive drug test for marijuana, except for safety-sensitive jobs. Employers would retain the right to take action against employees who were impaired on the job.

Leno’s bill would effectively overturn a state supreme court ruling, Ross v. Raging Wire, in which the court held that Prop 215 does not protect patients from workplace discrimination in the form of drug tests. A similar Leno bill was passed by the legislature in 2008 but vetoed by Gov. Schwarzenegger. The hope is that Gov. Jerry Brown might sign it since he has been more favorable to labor.

“A medical cannabis patient has the right to employment in California,” Leno told attendees at California NORML’s Berkeley Conference on Jan. 29th. “Voters did not intend the medical marijuana law to benefit only unemployed people. We want people employed.” A great many hands went up in the audience when Leno asked how many had experienced employment discrimination for medical marijuana or knew someone who had.


Cultivation De-Felonization Bill
In the Assembly, Tom Ammiano has introduced a bill to downgrade marijuana cultivation from a mandatory felony to a “wobbler,” or optional misdemeanor. The bill, AB 1017, is co-sponsored by Mendocino District Attorney David Eyster, with support from other north coast DA’s who have been overburdened with marijuana felonies. The bill is a scaled-down alternative to a more far-reaching proposal by California NORML that would have completely decriminalized small-scale home cultivation and also downgraded felony penalties for possession with intent to sell, transportation, and sales.

Ammiano, who sponsored a pioneering legalization bill last year, told the Berkeley conference that he would introduce less comprehensive bills this year. One important goal would be to reduce marijuana felonies, which account for the great bulk of marijuana-related enforcement costs in California, estimated at over $200 – 300 million per year. Ammiano’s bill is the first to propose reducing felony marijuana penalties since a personal use cultivation bill by Willie Brown in 1979.

“This change is long overdue and is simply common sense,” said Ammiano, “Allowing marijuana cultivation to be a misdemeanor will save the state money, allow for more cost-effective prosecution and reflects the views of most Californians.”

“When it comes to marijuana cultivation, one size does not fit all,” commented DA Eyster, “The proposed change affords local District Attorneys the charging discretion to determine, for example, that a home gardener with a few non-medical marijuana plants will not be prosecuted at the same level as a profiteer operating a major marijuana plantation.”

Medical Cannabis Licensing Bills
The State Senate is considering legislation to replace California’s current patchwork scheme of medical marijuana regulation with a statewide licensing system. Sen. Lou Correa (D-Anaheim) has introduced a comprehensive Medical Cannabis Licensing Act, SB 847, aimed at providing a “complete, functional, licensing scheme” for medical marijuana. Meanwhile, Sen. Ron Calderon (D-Montebello) has introduced a competing “Cannabis and Cannabis Product Certification: Taxation” bill, SB 626, aimed at assuring collection of sales taxes through the California Board of Equalization.

The lack of clear and consistent state rules on medical marijuana distribution, production, transportation and sales has been an ongoing problem for collectives, dispensaries, growers, and law enforcement. Current law, based on Prop 215, state law SB 420 and the Attorney General’s guideline, is vague and ambiguous, leaving local cities and counties wide latitude to make up their own conflicting rules and regulations, and resulting in hundreds of court cases. California NORML has been working with legislators and patients groups to explore ways of improving current law so as to establish clear, unambiguous rules for the legal distribution, production and sales of medical marijuana.

Sen. Correa’s Medical Cannabis Licensing Act is the first bill to squarely address Prop. 215’s mandate to implement a “safe and affordable” distribution system for medical marijuana. It would require producers, distributors and sellers to be licensed by the State Department of Health. It would also create an indicia or certification program under the Board of Equalization similar to that for tobacco, requiring traceable, secure indicia showing proof of state licensing to be affixed to all products.

Importantly, the bill would explicitly exempt licensees from state laws against sales, distribution, transportation, etc. The bill would provide inspections for safety, security and hygiene and establish a product testing program overseen by the Board of Pharmacy. It would authorize assessment of fees, but not taxes, to fund the system.

California NORML commended Sen. Correa – not previously known as a medical marijuana supporter – for seriously addressing Prop. 215’s mandate. However, NORML attorneys caution that a number of important glitches in the bill would have to be fixed – in particular, a clause that would require individual patients and caregivers to apply for state licenses to grow, in violation of their rights under Prop 215.

Marijuana advocates take a dimmer view of Calderon’s bill, the “Cannabis and Cannabis Product Certification Act” (SB 626), which is a re-run of a bill from the last legislature aimed at regulating marijuana like tobacco through the state Board of Equalization. Unlike the Correa bill, SB 626 would leave current criminal laws intact, exposing collectives and growers to the continued risk of criminal prosecution for sales, cultivation, transportation, etc.

The bill would require all growers, processors, transporters, wholesalers, and retailers to register with the Board of Equalization and keep records of every sale, transfer or delivery of cannabis products. Wholesalers would be required to pre-pay a portion of the sales taxes whenever they transfer the product to retailers through a complicated regulatory scheme. Police and BOE agents would be authorized to conduct inspections, and felons would be ineligible for a license.

Industrial Hemp Bill
A bill to legalize industrial hemp, SB 676, has been introduced by Sen. Mark Leno. The bill would redefine “marijuana” so as to exclude industrial hemp. Hemp would be defined to include non-psychoactive fiber or oilseed crops with no more than 0.3% THC. Manufacturers would be required to test the crop to demonstrate that it was within the legal limit of THC.

“The time is long overdue for California farmers to be allowed to grow this sustainable and profitable crop once again,” said Sen. Leno, The passage of SB 676 will create new jobs and economic opportunities for many farmers and manufacturers through out the state.”

Leno authored two prior hemp bills, both of which were vetoed by Gov. Schwarzenegger. The last bill would have simply set up a demonstration research program. Unlike that bill, SB 676 would effectively legalize production of hemp in California. Nonetheless, hemp would remain illegal under federal law, exposing farmers to the risk of federal busts.

The bill places no restrictions on where hemp could be grown. This could pose a problem to marijuana growers, since cannabis pollen can carry as far as 100 miles. The presence of nearby hemp could therefore spoil the outdoor sinsemilla crop by fertilizing the buds.

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