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 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 1
3/2/2018 Licensed commercial cultivation ■ 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 2
3/2/2018 Licensed transportation and distribution ■ 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 No license needed for personal medical cultivation or collectives ■ 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 on of a of a sell 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 3
3/2/2018 No license needed for allowed adult use cultivation or possession ■ 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 Unlawful cultivation ■ 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) 4
3/2/2018 Enforcement Options ■ 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, on public or private property. – 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 What to expect in 2018 ■ “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 5
3/2/2018 Relevant Sections of the MAUCRSA to Consider… 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 6
3/2/2018 Business and Professions Code Section 26055 – Licensing, generally ■ (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 ordinance or regulation. 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 habitat. Conditions shall include, but not be limited to, the principles and guidelines 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. 7
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