Analysis of Ammiano Bill
California Assemblyman Tom Ammiano has introduced a bill for the legalization of marijuana in his state.[1] The bill had been slated for a hearing before committee on March 31, 2009[2] but this has been postponed to sometime "early" in 2010, to give time to build support.[3]
AB 390 is a reasonable model for changes to other state laws regarding cannabis, except for a few omissions, errors, annoying compromises, and dangerous missteps.
The prologue to the bill summarizes the changes to be made:
"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."
Note that it states "and federal law permits possession and sale consistent with the program." However, Section 1, subsection g clearly bans state assistance in enforcing Federal laws inconsistent with this law. So it would seem that as soon as the law is passed, the state will do nothing to enforce Federal law, but the production, wholesale and retail aspects of the law will not take effect until after Federal law is changed.
(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.
Currently there's no reason to believe that the state would benefit by treating adult US citizens aged 18 to 20 differently from other adult US citizens. Since alcohol is so much more dangerous than marijuana, it would seem more reasonable to legalize marijuana for all adults 18 years and older. This might preferentially drive young adults to consume marijuana rather than alcohol, which would be safer for everyone.
However, this kind of language may be necessary for passage of the bill, and can be changed later.
(c) To ensure that the proper regulatory apparatus for marijuana sale and cultivation is ready when permitted by the federal government.
This regulatory apparatus is solely to regulate who may work in producing and distributing marijuana, and so ensure marijuana is not consumed on premises. It's not about regulating marijuana to ensure a safe, healthy, and unadulterated product.
(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.
This is more compromise language to assuage the fears of those who harbor an hysterical fear of drugs.
(e) To impose a set of regulations and laws concerning marijuana comparable to those imposed on alcohol.
Again, compromise language for those who are not knowledgable about the differences in marijuana and 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.
This would seem to be one of the more powerful subsections of this law. It would seem that even if the Federal government does not change its laws after this bill passes, no California agency will be allowed to help the Federal Government enforce its laws.
(i) To encourage the federal government to reconsider its policies concerning marijuana, and to change its laws accordingly.
According to the Controlled Substances Act, any US citizen or agency can petition the DEA to reconsider scheduling of any scheduled substance.
For purposes of this chapter, “marijuana” means all parts of the plant Cannabis sativa L., [etc.]
This could be a sticking point, as some biologists recognize three species of the genus Cannabis: sativa L., indica Lam., and ruderalis Janisch. Others say there is only sativa, and the others are subspecies. Probably better to just specify the genus Cannabis.
(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.
This law makes no attempt to legalize home grown Cannabis. The fees and the regulations on growing also preclude the growth of marijuana for personal consumption.
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:
This section assumes tha marijuana is a public health problem, and that it will continue to be as valuable after legalization as it is when prohibited. Rather than regulating the product itself, ensuring that it is unadulterated and safe for consumption, Ammiano's idea of regulation is that marijuana is a dangerous drug that needs to be kept out of the hands of unauthorized people by means approved by the state.
(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.
The safeguards here seem excessive and based on the assumption that marijuana is a dangerous substance. This treatment is probably seen as necessary to passage of the bill in the face of hardline opposition.
(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.
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.
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.
The rest of the document consists of amendments to current laws to remove mention of marijuana as a controlled substance, until SEC. 21. Division 10.3 (commencing with Section 11720) is added to the Health and Safety Code, to read:
For purposes of this division, “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.
It is lawful and not a violation of California law for a person 21 years of age or older to possess or transport marijuana.
(a) It is lawful and not a violation of California law to sell marijuana to a person 21 years of age or older as provided in Chapter 14.5 (commencing with Section 25400) of Division 9 of the Business and Professions Code. Any sale of marijuana by a person not licensed as provided therein after the date determined by Section 25406 of the Business and Professions Code is a violation of this division.
(b) Until the date specified by subdivision (a), it is lawful and not a violation of California law to sell marijuana to a person 21 years of age or older.
(a) It is lawful and not a violation of California law for a person 21 years of age or older to smoke or ingest marijuana in one’s home, or in any private residence, or upon the grounds of that home or residence not visible from any public place or neighboring property, with the consent of a resident 21 years of age or older.
(b) It is an infraction to smoke or ingest marijuana in a public place.
It seems a little strange to require that smoking or ingesting should be invisible to public or neighbors. The stipulation against smoking or ingesting in a public place seems excessive. Better to have the rules similar to smoking tobacco.
(a) It is lawful and not a violation of California law, except as provided in subdivision (f) of Section 647 of the Penal Code, or in Section 11729, for a person 21 years of age or older to be under the influence of marijuana.
It is unlawful for a person not licensed pursuant to Chapter 14.5 (commencing with Section 25400) of Division 9 of the Business and Professions Code to cultivate marijuana, except in compliance with the following requirements:
(a) Marijuana may be cultivated only by persons 21 years of age or older.
(b) Marijuana may be cultivated only in a location in the home or yard in which the marijuana is not visible from any public place. For purposes of this paragraph, “public place” does not include air space, or any place from which a viewer would violate the cultivator’s legitimate expectation of privacy.
(c) Each person 21 years of age or older may have in cultivation no more than 10 mature plants at any given time.
(d) A licensed nursery may cultivate seedlings for sale to persons 21 years of age or older, but shall destroy any seedling if it has not been purchased by a consumer before it reaches maturity.
(e) Aside from the sale of seedlings by a licensed nursery, marijuana cultivated pursuant to this section may not be sold.
(f) The presence of persons younger than 21 years of age in a household does not affect the lawfulness of the cultivation of marijuana under this division.
This bill allows a personal grow of up to 10 plants, which should provide three to eight ounces per year. It may be grown in the presence of minors and must be restricted from public view.
(a) Unlawful cultivation of marijuana is an infraction, punishable by a fine of up to one hundred dollars ($100).
(b) Providing or selling marijuana to, or purchasing or cultivating marijuana for a person under 21 years of age is an infraction, punishable by a fine of up to one hundred dollars ($100). However, this division is not intended to preclude prosecution under Section 272 of the Penal Code, or any similar provision, where appropriate.
(c) Possession or use of marijuana by a person under 21 years of age is an infraction, punishable by a fine of up to one hundred dollars ($100).
(d) Any other violation of this division is an infraction, punishable by a fine of up to one hundred dollars ($100).
All these provisions seem reasonably mild. If production must be controlled this strictly, at least the laws prohibiting illicit production do not reflect the current hysteria of the Drug War.
Notwithstanding any other law, it is lawful and not a violation of California law to possess, transport, or sell the mature stalks of the plant Cannabis sativa L., 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, which is regulated as marijuana), fiber, oil, or cake, or the sterilized seed of the plant that is incapable of germination.
State or local funds may not be expended on, and state or local law enforcement or other personnel may not assist in, the enforcement of any federal or other laws that are inconsistent with this division, or provide for greater sanctions for conduct prohibited by this division.
This division may not be construed to affect or limit any criminal statute that forbids impairment while engaging in dangerous activities like driving, or that penalizes bringing marijuana to a school enrolling pupils in kindergarten or any of grades 1 to 12, inclusive.
Rules concerning marijuana use and driving should be re-examined with new research done to determine the nature and extent of impairment, and how to measure it.
This division may not be construed to affect the rights of employers concerning employees who use marijuana.
Part 14.6 (commencing with Section 34001) is added to Division 2 of the Revenue and Taxation Code, to read:
It is the intent of the people in enacting this part to discourage drug use and to raise revenue for drug education and drug awareness programs by enacting a supplemental fee on marijuana.
This part shall be known and may be cited as the “Marijuana Supplemental Fee Law.”
Except where the context otherwise requires, the definitions set forth in Part 1 (commencing with Section 6001) govern the construction of this part.
For purposes of this part:
(a) “Marijuana” includes all marijuana, concentrated cannabis, and their derivatives, except that marijuana containing less than one-half of 1 percent tetrahydrocannabinol by weight is not subject to this supplemental fee. However, no fee shall be imposed under this part on marijuana used medicinally with a doctor’s recommendation as specified in Section 11362.5 of the Health and Safety Code.
(b) “Retailer” means any retailer licensed pursuant to Section 23394.1 of the Business and Professions Code who sells marijuana at retail.
Until a different fee is determined pursuant to Section there is hereby imposed a fee of fifty dollars ($50) per ounce (avoirdupois) for the sale of marijuana sold at retail in this state on or after the date determined by Section 25406 of the Business and Professions Code.
To the extent feasible or practicable, the provisions of Chapter 5 (commencing with Section 6451), Chapter 6 (commencing with Section 6701), Chapter 7 (commencing with Section 6901), and Chapter 8 (commencing with Section 7051) of Part 1 shall govern returns and payments, determinations, collections of fees, overpayments and refunds, and administration under this part.
The board shall enforce this part and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement of this part. The board may prescribe the extent to which any ruling and regulation shall be applied without retroactive effect.
Any amount required to be paid to the state under this part shall be paid to the board in the form of a remittance payable to the State Board of Equalization. The board shall transmit the payments to the Treasurer to be deposited in the Drug Abuse Prevention Supplemental Funding Account, which is hereby created in the General Fund. Upon appropriation by the Legislature, the moneys in the fund shall be expended exclusively for drug education, awareness, and rehabilitation programs under the jurisdiction of the Department of Alcohol and Drug Programs, or any successor to that agency.
The fee imposed pursuant to Chapter 2 shall be annually reviewed by the Department of Alcohol and Drug Programs, or any successor to that agency, to determine whether a fee less than that specified in Chapter 2 will provide sufficient resources to support its drug education, awareness, and rehabilitation programs. Based on this annual review, the Department of Alcohol and Drug Programs shall adjust that fee to an amount not to exceed fifty dollars ($50) per ounce (avoirdupois) of marijuana that is necessary to fund its drug education, awareness, and rehabilitation programs, and that amount shall be collected in place of the fee specified in Chapter 2.