Existing law, the Medical Marijuana Program, requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy specified requirements with respect to the use of medical marijuana. Existing law provides that the Medical Marijuana Program does not authorize a person with an identification card to smoke medical marijuana under specified circumstances, including in a location at which smoking is prohibited by law.

This bill would also state that the Medical Marijuana Program does not authorize the smoking of medical marijuana where smoking is prohibited by a landlord, as specified. The bill would authorize a landlord to restrict the smoking or vaporization of medical marijuana within or adjacent to a dwelling unit or other building on the property, provided that the landlord does not impose conditions or prohibitions that effectively deny a patient the ability to vaporize medical marijuana, as recommended by a physician, if the patient is under the care of a parent, guardian, or primary caregiver, as defined.

Existing law, the Medical Marijuana Program, requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy specified requirements with respect to the use of medical marijuana. Existing law provides that the Medical Marijuana Program does not authorize a person with an identification card to smoke medical marijuana under specified circumstances, including in a location at which smoking is prohibited by law.

This bill would also state that the Medical Marijuana Program does not authorize the smoking of medical marijuana where smoking is prohibited by a landlord, as specified.

Existing law, the Medical Marijuana Program, requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy specified requirements with respect to the use of medical marijuana. Existing law provides that the Medical Marijuana Program does not authorize a person with an identification card to smoke medical marijuana under specified circumstances, including in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence. in a location at which smoking is prohibited by law.

This bill would authorize a city council or a board of supervisors to prohibit the smoking of medical marijuana within 1 mile of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence. also state that the Medical Marijuana Program does not authorize the smoking of medical marijuana where smoking is prohibited by a landlord, as specified.

Existing law, the Medical Marijuana Program, requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy specified requirements with respect to the use of medical marijuana. Existing law provides that the Medical Marijuana Program does not authorize a person with an identification card to smoke medical marijuana under specified circumstances, including in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence.

This bill would authorize a city council or a board of supervisors to prohibit the smoking of medical marijuana within 1 mile of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence.

 THIRD READING  

Bill No: AB 2300

Author:

: 8/19/16 Senate

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/28/16

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

ASSEMBLY FLOOR: 77-0, 5/5/16 - See last page for vote

SUBJECT:

SOURCE: California Apartment Association

DIGEST: This bill specifies that participation in California’s Medical Marijuana Program does not authorize qualified patients to smoke medical marijuana in any location prohibited by a landlord, except as specified.

Senate Floor Amendments of 8/19/16 clarify conditions when a landlord may prohibit the smoking or vaporization of medical marijuana in residential tenancies.

ANALYSIS:

Existing law:

1. Declares in the Fair Employment and Housing Act it to be against public policy to discriminate on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations. (Gov. Code Sec. 12920.)
2. Declares that the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, genetic information, or any other specified basis is a civil right. (Gov. Code Sec. 12921.)
3. Declares it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code Sec. 12955.)
4. Regulates the terms and conditions of residential tenancies, and generally requires landlords to keep the rental units in a condition fit for occupancy. (Civ. Code Sec. 1940 et seq.)
5. Creates an implied covenant of quiet enjoyment in every lease, requiring that the tenant shall not be disturbed in his or her possession by the landlord. (Civ. Code Sec. 1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)
6. Authorizes the landlord of a residential dwelling unit, or his or her agent, to prohibit the smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, as specified. (Civ. Code Sec. 1947.5.)
7. Provides, in Proposition 215 of 1996, the Compassionate Use Act, that individuals have the right to obtain and use marijuana for medical purposes where medical use has been deemed appropriate and recommended by a physician because the person’s health would benefit from the use of marijuana in treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (Health & Saf. Code Sec. 11362.5(b)(1).)
8. Removes the criminal penalties for cultivation and possession of marijuana by qualified patients, who are persons with a physician’s written or oral recommendation or approval to use marijuana for medical use, or by their primary caregivers, and protects physicians from punishment for recommending marijuana to a patient for medical purposes. (Health & Saf. Code Sec. 11362.5(b), (c) and (d).)
9. Provides, in the Medical Marijuana Program Act, that participation in the Medical Marijuana Program shall not require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (Health & Saf. Code Sec. 11362.785(a).)
10. Specifies that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana under any of the following circumstances:

• in any place where smoking is prohibited by law;
• in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
• on a school bus;
• while in a motor vehicle that is being operated; or
• while operating a boat. (Health & Saf. Code Sec. 11362.79.)

This bill:

1. Provides that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana in any location prohibited by a landlord, as specified.
2. States that a landlord may restrict the smoking or vaporization of medical marijuana within or adjacent to a dwelling unit or other building on the property, provided that the landlord does not impose conditions or prohibitions that effectively deny a patient the ability to vaporize medical marijuana, as recommended by a physician for medical purposes, if the patient is under the care of a parent, guardian, or primary caregiver, as specified.

Background

In 1996, California voters passed Proposition 215, the Compassionate Use Act, “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” The Compassionate Use Act authorized individuals with chronic medical conditions and their caregivers to cultivate, possess, and use marijuana upon the recommendation of their physician. Several years after the passage of Proposition 215, the Legislature passed SB 420 (Vasconcellos, Chapter 875, Statutes of 2003), the Medical Marijuana Program Act, which established a program for the issuance of identification cards to patients qualified to use medical marijuana, and made numerous legal clarifications and statutory changes necessary to implement and enforce a statewide system of providing medical marijuana to chronically ill patients.

SB 420 settled several issues concerning the exercise of a qualified patient’s right to use medical marijuana. Among other things, the Medical Marijuana Program Act clarified that participation in the program would not require any accommodation for the use of medical marijuana on the property or premises of any place of employment, or during the hours of employment, or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (See Health & Saf. Code Sec. 11362.785.) The Act also clarified that participation in the program did not authorize (nor prohibit) a qualified patient to engage in the smoking of medical marijuana: in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat. (See Health & Saf. Code Sec. 11362.79.)

This bill expand the list of places neither authorized nor prohibited for a qualified patient to engage in the smoking of medical marijuana under the Medical Marijuana Program Act to include any location where smoking is prohibited by a landlord, except where such prohibitions effectively deny a patient the ability to vaporize medical marijuana, as specified.

Comments

The author writes:

In 1996, Proposition 215 (Compassionate Use Act) was passed by California voters to allow seriously ill patients to use marijuana for medical purposes. The Compassionate Use Act also requires a recommendation from a physician before a patient can begin using or obtaining the cannabis. Once a patient has a physician recommendation, the right to use and obtain medical marijuana is protected. A few years later, the Legislature passed and the Governor signed SB 420 (Vasconcellos, 2003) to ensure there was a proper structure in place to implement and enforce the Compassionate Use Act. SB 420 established a voluntary ID program for qualified patients that use medical marijuana while also making other statutory changes to protect the public. The bill prohibited medical marijuana patients from smoking cannabis near schools, while operating a car or boat, and any other place where smoking is prohibited by law.

In 2011, SB 332 (Padilla) codified in law that a landlord may prohibit smoking tobacco within their rental dwellings. The new law aligned with the already existing ban of smoking in the workplace, while also recognizing that secondhand smoke may cause death or serious illness. Secondhand smoke is especially problematic in multi-unit apartments and condos because the smoke can [easily travel] through windows, doors, and shared ventilation systems. Neighbors living in multi-family housing can be exposed to toxic, and unwanted, secondhand tobacco smoke. A University of California San Francisco (UCSF) study researched the effects of breathing secondhand marijuana smoke. The UCSF study, released in 2014, highlights that secondhand marijuana smoke can be as dangerous as secondhand tobacco smoke.

Current law already outlaws qualified patients from smoking medical marijuana at any place where smoking is prohibited, but further clarity in statute is needed to protect tenants, especially families living in multi-family housing, from unsolicited secondhand marijuana smoke. AB 2300 allows a landlord to prohibit the smoking of marijuana within their rental properties. The bill does not prohibit other forms of marijuana consumption, so qualified patients can still consume medical cannabis through other means, such as, edibles, oils, or other non-smoking alternatives.

Related/Prior Legislation

SB 332 (Padilla, Ch. 264, Stats. 2011) codified the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any residential dwelling unit.

AB 2279 (Leno, 2008) would have provided that an employee who is a qualified patient cannot be fired from a job because of his or her status as a qualified patient or for testing positive for marijuana, and would have provided that an employee who is a qualified patient cannot be discriminated against or penalized by an employer for marijuana status or positive testing during the hiring process. This bill was vetoed by Governor Schwarzenegger who asserted that the bill would interfere with employment decisions relating to marijuana use.

SB 420 (Vasconcellos, Ch. 875, Stats. 2003) See Background.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 08/22/16)

Apartment Association, California Southern Cities

Association of California Healthcare Districts

California Apartment Association (source)

California Association of Realtors

County Health Executives Association of California

East Bay Rental Housing Association

Apartment Association of Orange County

North Valley Property Owners Association

OPPOSITION: (Verified 08/22/16)

Greenbridge Corporate Counsel

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 77-0, 5/5/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Eggman, Beth Gaines, Quirk

Prepared by: Tobias Halvarson / JUD. / (916) 651-4113

8/22/16 20:37:53

**** END ****

 THIRD READING  

Bill No: AB 2300

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/28/16

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

ASSEMBLY FLOOR: 77-0, 5/5/16 - See last page for vote

SUBJECT:

SOURCE: California Apartment Association

DIGEST: This bill specifies that participation in California’s Medical Marijuana Program does not authorize qualified patients to smoke medical marijuana in any location prohibited by a landlord.

ANALYSIS:

Existing law:

1. Declares, in the Fair Employment and Housing Act, it to be against public policy to discriminate on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations. (Gov. Code Sec. 12920.)
2. Declares that the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, genetic information, or any other specified basis is a civil right. (Gov. Code Sec. 12921.)
3. Declares it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code Sec. 12955.)
4. Regulates the terms and conditions of residential tenancies, and generally requires landlords to keep the rental units in a condition fit for occupancy. (Civ. Code Sec. 1940 et seq.)
5. Creates an implied covenant of quiet enjoyment in every lease, requiring that the tenant shall not be disturbed in his or her possession by the landlord. (Civ. Code Sec. 1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)
6. Authorizes the landlord of a residential dwelling unit, or his or her agent, to prohibit the smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, as specified. (Civ. Code Sec. 1947.5.)
7. Provides, through Proposition 215 of 1996, the Compassionate Use Act, that individuals have the right to obtain and use marijuana for medical purposes where medical use has been deemed appropriate and recommended by a physician because the person’s health would benefit from the use of marijuana in treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (Health & Saf. Code Sec. 11362.5(b)(1).)
8. Removes the criminal penalties for cultivation and possession of marijuana by qualified patients, who are persons with a physician’s written or oral recommendation or approval to use marijuana for medical use, or by their primary caregivers, and protects physicians from punishment for recommending marijuana to a patient for medical purposes. (Health & Saf. Code Sec. 11362.5(b), (c) and (d).)
9. Provides, in the Medical Marijuana Program Act, that participation in the Medical Marijuana Program shall not require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (Health & Saf. Code Sec. 11362.785(a).)
10. Specifies that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana under any of the following circumstances:
    • in any place where smoking is prohibited by law;
    • in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
    • on a school bus;
    • while in a motor vehicle that is being operated; or
    • while operating a boat. (Health & Saf. Code Sec. 11362.79.)

This bill provides that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana in any location prohibited by a landlord, as specified.

Background

In 1996, California voters passed Proposition 215, the Compassionate Use Act, “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” The Compassionate Use Act authorized individuals with chronic medical conditions and their caregivers to cultivate, possess, and use marijuana upon the recommendation of their physician. Several years after the passage of Proposition 215, the Legislature passed SB 420 (Vasconcellos, Chapter 875, Statutes of 2003), the Medical Marijuana Program Act, which established a program for the issuance of identification cards to patients qualified to use medical marijuana, and made numerous legal clarifications and statutory changes necessary to implement and enforce a statewide system of providing medical marijuana to chronically ill patients.

SB 420 settled several issues concerning the exercise of a qualified patient’s right to use medical marijuana. Among other things, the Medical Marijuana Program Act clarified that participation in the program would not require any accommodation for the use of medical marijuana on the property or premises of any place of employment, or during the hours of employment, or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (See Health & Saf. Code Sec. 11362.785.) The Medical Marijuana Program Act also clarified that participation in the program did not authorize (nor prohibit) a qualified patient to engage in the smoking of medical marijuana: in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat. (See Health & Saf. Code Sec. 11362.79.)

This bill expands the list of places neither authorized nor prohibited for a qualified patient to engage in the smoking of medical marijuana under the Medical Marijuana Program Act to include any location where smoking is prohibited by a landlord.

Comments

The author writes:

In 1996, Proposition 215 (Compassionate Use Act) was passed by California voters to allow seriously ill patients to use marijuana for medical purposes. The Compassionate Use Act also requires a recommendation from a physician before a patient can begin using or obtaining the cannabis. Once a patient has a physician recommendation, the right to use and obtain medical marijuana is protected. A few years later, the Legislature passed and the Governor signed SB 420 (Vasconcellos, 2003) to ensure there was a proper structure in place to implement and enforce the Compassionate Use Act. SB 420 established a voluntary ID program for qualified patients that use medical marijuana while also making other statutory changes to protect the public. The bill prohibited medical marijuana patients from smoking cannabis near schools, while operating a car or boat, and any other place where smoking is prohibited by law.

In 2011, SB 332 (Padilla) codified in law that a landlord may prohibit smoking tobacco within their rental dwellings. The new law aligned with the already existing ban of smoking in the workplace, while also recognizing that secondhand smoke may cause death or serious illness. Secondhand smoke is especially problematic in multi-unit apartments and condos because the smoke can [easily travel] through windows, doors, and shared ventilation systems. Neighbors living in multi-family housing can be exposed to toxic, and unwanted, secondhand tobacco smoke. A University of California San Francisco (UCSF) study researched the effects of breathing secondhand marijuana smoke. The UCSF study, released in 2014, highlights that secondhand marijuana smoke can be as dangerous as secondhand tobacco smoke.

Current law already outlaws qualified patients from smoking medical marijuana at any place where smoking is prohibited, but further clarity in statute is needed to protect tenants, especially families living in multi-family housing, from unsolicited secondhand marijuana smoke. AB 2300 allows a landlord to prohibit the smoking of marijuana within their rental properties. The bill does not prohibit other forms of marijuana consumption, so qualified patients can still consume medical cannabis through other means, such as, edibles, oils, or other non-smoking alternatives.

Related/Prior Legislation

SB 332 (Padilla, Chapter 264, Statutes of 2011) codified the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any residential dwelling unit.

AB 2279 (Leno, 2008) would have provided that an employee who is a qualified patient cannot be fired from a job because of his or her status as a qualified patient or for testing positive for marijuana, and would have provided that an employee who is a qualified patient cannot be discriminated against or penalized by an employer for marijuana status or positive testing during the hiring process. The bill was vetoed by Governor Schwarzenegger who asserted that the bill would interfere with employment decisions relating to marijuana use.

SB 420 (Vasconcellos, Chapter 875, Statutes of 2003) See Background.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/28/16)

California Apartment Association (source)

Apartment Association, California Southern Cities

Association of California Healthcare Districts

California Association of Realtors

County Health Executives Association of California

East Bay Rental Housing Association

Apartment Association of Orange County

North Valley Property Owners Association

OPPOSITION: (Verified 6/28/16)

Greenbridge Corporate Counsel

Legal Services for Prisoners with Children

ASSEMBLY FLOOR: 77-0, 5/5/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Eggman, Beth Gaines, Quirk

Prepared by:

7/29/16 10:48:55

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2300 (Author:Wood)

Version: April 28, 2016

Hearing Date: June 28, 2016

Fiscal: No

Urgency: No

Consultant: TH

SUBJECT

Medical Marijuana

DESCRIPTION

Under existing law, participation in California’s Medical Marijuana Program does not authorize qualified patients to engage in the smoking of medical marijuana in certain locations, including in any place where smoking is prohibited by law.

This bill would specify that participation in California’s Medical Marijuana Program does not authorize qualified patients to smoke medical marijuana in any location prohibited by a landlord.

BACKGROUND

In 1996, California voters passed Proposition 215, the Compassionate Use Act, “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” The Compassionate Use Act authorized individuals with chronic medical conditions and their caregivers to cultivate, possess, and use marijuana upon the recommendation of their physician. Several years after the passage of Proposition 215, the Legislature passed SB 420 (Vasconcellos, Ch. 875, Stats. 2003), the Medical Marijuana Program Act, which established a program for the issuance of identification cards to patients qualified to use medical marijuana, and made numerous legal clarifications and statutory changes necessary to implement and enforce a statewide system of providing medical marijuana to chronically ill patients.

SB 420 settled several issues concerning the exercise of a qualified patient’s right to use medical marijuana. Among other things, the Medical Marijuana Program Act clarified that participation in the program would not require any accommodation for the use of medical marijuana on the property or premises of any place of employment, or during the hours of employment, or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (See Health & Saf. Code Sec. 11362.785.) The Act also clarified that participation in the program did not authorize (nor prohibit) a qualified patient to engage in the smoking of medical marijuana: in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat. (See Health & Saf. Code Sec. 11362.79.)

This bill would expand the list of places neither authorized nor prohibited for a qualified patient to engage in the smoking of medical marijuana under the Medical Marijuana Program Act to include any location where smoking is prohibited by a landlord.

CHANGES TO EXISTING LAW

Existing law, the Fair Employment and Housing Act, declares it to be against public policy to discriminate on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations. (Gov. Code Sec. 12920.)

Existing law declares that the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, genetic information, or any other specified basis is a civil right. (Gov. Code Sec. 12921.)

Existing law declares it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code Sec. 12955.)

Existing law regulates the terms and conditions of residential tenancies, and generally requires landlords to keep the rental units in a condition fit for occupancy. (Civ. Code Sec. 1940 et seq.)

Existing law creates an implied covenant of quiet enjoyment in every lease, requiring that the tenant shall not be disturbed in his or her possession by the landlord. (Civ. Code Sec. 1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)

Existing law authorizes the landlord of a residential dwelling unit, or his or her agent, to prohibit the smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, as specified. (Civ. Code Sec. 1947.5.)

Existing law, Proposition 215 of 1996, the Compassionate Use Act, provides that individuals have the right to obtain and use marijuana for medical purposes where medical use has been deemed appropriate and recommended by a physician because the person’s health would benefit from the use of marijuana in treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (Health & Saf. Code Sec. 11362.5(b)(1).)

Existing law removes the criminal penalties for cultivation and possession of marijuana by qualified patients, who are persons with a physician’s written or oral recommendation or approval to use marijuana for medical use, or by their primary caregivers, and protects physicians from punishment for recommending marijuana to a patient for medical purposes. (Health & Saf. Code Sec. 11362.5(b), (c) and (d).)

Existing law, the Medical Marijuana Program Act, provides that participation in the Medical Marijuana Program shall not require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (Health & Saf. Code Sec. 11362.785(a).)

Existing law specifies that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana under any of the following circumstances:

• in any place where smoking is prohibited by law;
• in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
• on a school bus;
• while in a motor vehicle that is being operated; or
• while operating a boat. (Health & Saf. Code Sec. 11362.79.)

This bill would provide that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana in any location prohibited by a landlord, as specified.

COMMENT

1. Stated need for the bill

The author writes:

In 1996, Proposition 215 (Compassionate Use Act) was passed by California voters to allow seriously ill patients to use marijuana for medical purposes. The Compassionate Use Act also requires a recommendation from a physician before a patient can begin using or obtaining the cannabis. Once a patient has a physician recommendation, the right to use and obtain medical marijuana is protected. A few years later, the Legislature passed and the Governor signed SB 420 (Vasconcellos, 2003) to ensure there was a proper structure in place to implement and enforce the Compassionate Use Act. SB 420 established a voluntary ID program for qualified patients that use medical marijuana while also making other statutory changes to protect the public. The bill prohibited medical marijuana patients from smoking cannabis near schools, while operating a car or boat, and any other place where smoking is prohibited by law.

In 2011, SB 332 (Padilla) codified in law that a landlord may prohibit smoking tobacco within their rental dwellings. The new law aligned with the already existing ban of smoking in the workplace, while also recognizing that secondhand smoke may cause death or serious illness. Secondhand smoke is especially problematic in multi-unit apartments and condos because the smoke can [easily travel] through windows, doors, and shared ventilation systems. Neighbors living in multi-family housing can be exposed to toxic, and unwanted, secondhand tobacco smoke. A University of California San Francisco (UCSF) study researched the effects of breathing secondhand marijuana smoke. The UCSF study, released in 2014, highlights that secondhand marijuana smoke can be as dangerous as secondhand tobacco smoke.

Current law already outlaws qualified patients from smoking medical marijuana at any place where smoking is prohibited, but further clarity in statute is needed to protect tenants, especially families living in multi-family housing, from unsolicited secondhand marijuana smoke. AB 2300 allows a landlord to prohibit the smoking of marijuana within their rental properties. The bill does not prohibit other forms of marijuana consumption, so qualified patients can still consume medical cannabis through other means, such as, edibles, oils, or other non-smoking alternatives.

1. Dangers associated with secondhand smoke

Since 1994, California has banned smoking in all workplaces, including all restaurants, and in 1998 this smoking ban was extended to bars. Current law prohibits public employees and members of the public from smoking a cigarette or tobacco product inside a public building or within 20 feet of any door, window, or air intake of any government building within the state, including buildings owned or occupied by any government entity, including public universities, or public buildings leased to private entities. Additionally, it is an infraction for a person to smoke within 25 feet of a playground or for a person to smoke in the presence of a minor while in a moving vehicle.

According to the California Environmental Protection Agency (CalEPA), secondhand smoke, which is defined as a mixture of the smoke from burning tobacco and the smoke exhaled from smokers, can cause or exacerbate a wide variety of adverse health effects, including asthma, cancer, and respiratory infections in persons of all ages. Because of the toxicity of secondhand smoke, the California Air Resources Board (CARB) identified it as a toxic air contaminant (TAC), so that secondhand smoke is now identified as an airborne toxic substance that may cause and/or contribute to death or serious illness.

Studies have shown that secondhand smoke can be particularly harmful to children. According to a 1997 study by the CalEPA, the effect on children from secondhand smoke annually causes 120 child deaths from sudden infant death syndrome; 1,200 to 2,200 low-weight births; 900 to 1,800 hospitalizations and 16 to 25 deaths from increased bronchitis, pneumonia, and middle ear infections; and 48,000 to 120,000 children experiencing more acute asthma.

According to recent research by the University of California at San Francisco (UCSF), “[b]reathing secondhand marijuana smoke could damage your heart and blood vessels as much as secondhand cigarette smoke.” The study notes that “[r]educed blood vessel function may raise the chances of developing atherosclerosis and could lead to a heart attack,” and states that “[a]therosclerosis is the disease process that causes plaque build-up in the arteries which narrows them and restricts blood flow.” According to a senior author of the study, “[m]ost people know secondhand cigarette smoke is bad for you, but many don’t realize that secondhand marijuana smoke may also be harmful.” (Stanton Glantz, Secondhand Marijuana Smoke May Damage Blood Vessels As Much As Tobacco Smoke, UCSF Center for Tobacco Control Research and Education (November 16, 2014) <https://tobacco.ucsf.edu/secondhand-marijuana-smoke-may-damage-blood-vessels-much-tobacco-smoke> [as of June 5, 2016].)

1. Landlord authority to prohibit smoking tobacco products

Under current law, landlords can prohibit the smoking of tobacco products on rented property and in residential dwelling units as a condition of a tenancy agreement. For many years, bans on smoking have been viewed as similar to other rules tenants must follow as a condition of their tenancy, such as observing specified quiet hours or not allowing pets to live in a unit. A landlord’s ability to prohibit or restrict smoking on a property helps the landlord protect his or her interest in the property, as well as maintain conditions that preserve the right of quiet enjoyment guaranteed to all tenants under California law.

In 2011, the Legislature codified the ability of a residential landlord to prohibit the smoking of tobacco products on a rented property or in any building or portion of a building, including in a residential dwelling unit. (See SB 332 [Padilla, Ch. 264, Stats. 2011].) This bill would codify that the Medical Marijuana Program Act does not authorize qualified patients to engage in the smoking of medical marijuana in any location prohibited by a landlord, and by cross reference to the applicable section of the Civil Code involving the smoking of tobacco products, would imply that landlords have the authority to prohibit the smoking of medical marijuana in rented accommodations or on rented property.

1. Impact to qualified patients

With the passage of Proposition 215 in 1996, the people of California recognized the smoking of marijuana to be medically beneficial in certain circumstances. Unlike the smoking of tobacco products which has limited, if any, health benefits, Proposition 215 declared that “Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana,” and identified the treatment of “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, [and] migraine” as illnesses for which marijuana may provide relief. (Health & Saf. Code Sec. 11362.5(b)(1).)

While the law recognizes that landlords can prohibit the smoking of tobacco products on rental property, it is unclear whether landlords have an unconditional power to prohibit the smoking of medical marijuana on these properties, particularly since Proposition 215 recognized a patient’s right of access to medical marijuana in certain circumstances. If, for example, a tenant smokes medical marijuana on the advice of his or her doctor to treat a terminal cancer, could a landlord unconditionally prohibit such activity without running afoul of the tenant’s right of access, particularly if the tenant was unable to easily move to an alternate location where smoking was permissible? If a tenant has a medical need to smoke marijuana for the treatment of a particular disability, would an unconditional ban on the smoking of medical marijuana conflict with a tenant’s right to be free from discrimination in housing accommodation under the Fair Employment and Housing Act?

While this bill does not explicitly authorize landlords to prohibit the smoking of medical marijuana in rented accommodations or on rented property, it would declare that the Medical Marijuana Program Act does not require a landlord to permit the medical use of marijuana on the landlord’s property or premises. Such a declaration raises the policy question of how a landlord should exercise whatever power he or she has to restrict the smoking of medical marijuana, particularly since other state laws may limit that power. From a policy standpoint, implementing restrictions on the use of medical marijuana in the rental housing context should balance the rights of the landlord (and other tenants) to prohibit activities that could damage real property and impact the health of surrounding tenants, while ensuring that tenants who have a recognized right to use medical marijuana are still able to exercise that right.

Suggested Amendment:

• restrict the ability of landlords to prohibit or condition the smoking of medical marijuana where such conditions or prohibitions effectively deny patient access to medical marijuana.

Support: Apartment Association, California Southern Cities; Association of California Healthcare Districts; California Association of Realtors; County Health Executives Association of California; East Bay Rental Housing Association; Apartment Association of Orange County; North Valley Property Owners Association

Opposition: Greenbridge Corporate Counsel; Legal Services for Prisoners with Children

HISTORY

Source: California Apartment Association

Related Pending Legislation: None Known

Prior Legislation:

SB 332 (Padilla, Ch. 264, Stats. 2011) codified the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any residential dwelling unit.

AB 2279 (Leno, 2008) would have provided that an employee who is a qualified patient cannot be fired from a job because of his or her status as a qualified patient or for testing positive for marijuana, and would have provided that an employee who is a qualified patient cannot be discriminated against or penalized by an employer for marijuana status or positive testing during the hiring process. This bill was vetoed by Governor Schwarzenegger who asserted that the bill would interfere with employment decisions relating to marijuana use.

SB 420 (Vasconcellos, Ch. 875, Stats. 2003) See Background.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2300 (Author:Wood)

Version: April 28, 2016

Hearing Date: June 21, 2016

Fiscal: No

Urgency: No

Consultant: TH

SUBJECT

Medical Marijuana

DESCRIPTION

Under existing law, participation in California’s Medical Marijuana Program does not authorize qualified patients to engage in the smoking of medical marijuana in certain locations, including in any place where smoking is prohibited by law.

This bill would specify that participation in California’s Medical Marijuana Program does not authorize qualified patients to smoke medical marijuana in any location prohibited by a landlord.

BACKGROUND

In 1996, California voters passed Proposition 215, the Compassionate Use Act, “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes.” The Compassionate Use Act authorized individuals with chronic medical conditions and their caregivers to cultivate, possess, and use marijuana upon the recommendation of their physician. Several years after the passage of Proposition 215, the Legislature passed SB 420 (Vasconcellos, Ch. 875, Stats. 2003), the Medical Marijuana Program Act, which established a program for the issuance of identification cards to patients qualified to use medical marijuana, and made numerous legal clarifications and statutory changes necessary to implement and enforce a statewide system of providing medical marijuana to chronically ill patients.

SB 420 settled several issues concerning the exercise of a qualified patient’s right to use medical marijuana. Among other things, the Medical Marijuana Program Act clarified that participation in the program would not require any accommodation for the use of medical marijuana on the property or premises of any place of employment, or during the hours of employment, or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (See Health & Saf. Code Sec. 11362.785.) The Act also clarified that participation in the program did not authorize (nor prohibit) a qualified patient to engage in the smoking of medical marijuana: in any place where smoking is prohibited by law; in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; on a school bus; while in a motor vehicle that is being operated; or while operating a boat. (See Health & Saf. Code Sec. 11362.79.)

This bill would expand the list of places neither authorized nor prohibited for a qualified patient to engage in the smoking of medical marijuana under the Medical Marijuana Program Act to include any location where smoking is prohibited by a landlord.

CHANGES TO EXISTING LAW

Existing law, the Fair Employment and Housing Act, declares it to be against public policy to discriminate on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations. (Gov. Code Sec. 12920.)

Existing law declares that the opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, genetic information, or any other specified basis is a civil right. (Gov. Code Sec. 12921.)

Existing law declares it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code Sec. 12955.)

Existing law regulates the terms and conditions of residential tenancies, and generally requires landlords to keep the rental units in a condition fit for occupancy. (Civ. Code Sec. 1940 et seq.)

Existing law creates an implied covenant of quiet enjoyment in every lease, requiring that the tenant shall not be disturbed in his or her possession by the landlord. (Civ. Code Sec. 1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)

Existing law authorizes the landlord of a residential dwelling unit, or his or her agent, to prohibit the smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, as specified. (Civ. Code Sec. 1947.5.)

Existing law, Proposition 215 of 1996, the Compassionate Use Act, provides that individuals have the right to obtain and use marijuana for medical purposes where medical use has been deemed appropriate and recommended by a physician because the person’s health would benefit from the use of marijuana in treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (Health & Saf. Code Sec. 11362.5(b)(1).)

Existing law removes the criminal penalties for cultivation and possession of marijuana by qualified patients, who are persons with a physician’s written or oral recommendation or approval to use marijuana for medical use, or by their primary caregivers, and protects physicians from punishment for recommending marijuana to a patient for medical purposes. (Health & Saf. Code Sec. 11362.5(b), (c) and (d).)

Existing law, the Medical Marijuana Program Act, provides that participation in the Medical Marijuana Program shall not require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (Health & Saf. Code Sec. 11362.785(a).)

Existing law specifies that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana under any of the following circumstances:

• in any place where smoking is prohibited by law;
• in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
• on a school bus;
• while in a motor vehicle that is being operated; or
• while operating a boat. (Health & Saf. Code Sec. 11362.79.)

This bill would provide that participation in the Medical Marijuana Program shall not authorize a qualified patient to engage in the smoking of medical marijuana in any location prohibited by a landlord, as specified.

COMMENT

1. Stated need for the bill

The author writes:

In 1996, Proposition 215 (Compassionate Use Act) was passed by California voters to allow seriously ill patients to use marijuana for medical purposes. The Compassionate Use Act also requires a recommendation from a physician before a patient can begin using or obtaining the cannabis. Once a patient has a physician recommendation, the right to use and obtain medical marijuana is protected. A few years later, the Legislature passed and the Governor signed SB 420 (Vasconcellos, 2003) to ensure there was a proper structure in place to implement and enforce the Compassionate Use Act. SB 420 established a voluntary ID program for qualified patients that use medical marijuana while also making other statutory changes to protect the public. The bill prohibited medical marijuana patients from smoking cannabis near schools, while operating a car or boat, and any other place where smoking is prohibited by law.

In 2011, SB 332 (Padilla) codified in law that a landlord may prohibit smoking tobacco within their rental dwellings. The new law aligned with the already existing ban of smoking in the workplace, while also recognizing that secondhand smoke may cause death or serious illness. Secondhand smoke is especially problematic in multi-unit apartments and condos because the smoke can [easily travel] through windows, doors, and shared ventilation systems. Neighbors living in multi-family housing can be exposed to toxic, and unwanted, secondhand tobacco smoke. A University of California San Francisco (UCSF) study researched the effects of breathing secondhand marijuana smoke. The UCSF study, released in 2014, highlights that secondhand marijuana smoke can be as dangerous as secondhand tobacco smoke.

Current law already outlaws qualified patients from smoking medical marijuana at any place where smoking is prohibited, but further clarity in statute is needed to protect tenants, especially families living in multi-family housing, from unsolicited secondhand marijuana smoke. AB 2300 allows a landlord to prohibit the smoking of marijuana within their rental properties. The bill does not prohibit other forms of marijuana consumption, so qualified patients can still consume medical cannabis through other means, such as, edibles, oils, or other non-smoking alternatives.

1. Dangers associated with secondhand smoke

Since 1994, California has banned smoking in all workplaces, including all restaurants, and in 1998 this smoking ban was extended to bars. Current law prohibits public employees and members of the public from smoking a cigarette or tobacco product inside a public building or within 20 feet of any door, window, or air intake of any government building within the state, including buildings owned or occupied by any government entity, including public universities, or public buildings leased to private entities. Additionally, it is an infraction for a person to smoke within 25 feet of a playground or for a person to smoke in the presence of a minor while in a moving vehicle.

According to the California Environmental Protection Agency (CalEPA), secondhand smoke, which is defined as a mixture of the smoke from burning tobacco and the smoke exhaled from smokers, can cause or exacerbate a wide variety of adverse health effects, including asthma, cancer, and respiratory infections in persons of all ages. Because of the toxicity of secondhand smoke, the California Air Resources Board (CARB) identified it as a toxic air contaminant (TAC), so that secondhand smoke is now identified as an airborne toxic substance that may cause and/or contribute to death or serious illness.

Studies have shown that secondhand smoke can be particularly harmful to children. According to a 1997 study by the CalEPA, the effect on children from secondhand smoke annually causes 120 child deaths from sudden infant death syndrome; 1,200 to 2,200 low-weight births; 900 to 1,800 hospitalizations and 16 to 25 deaths from increased bronchitis, pneumonia, and middle ear infections; and 48,000 to 120,000 children experiencing more acute asthma.

According to recent research by the University of California at San Francisco (UCSF), “[b]reathing secondhand marijuana smoke could damage your heart and blood vessels as much as secondhand cigarette smoke.” The study notes that “[r]educed blood vessel function may raise the chances of developing atherosclerosis and could lead to a heart attack,” and states that “[a]therosclerosis is the disease process that causes plaque build-up in the arteries which narrows them and restricts blood flow.” According to a senior author of the study, “[m]ost people know secondhand cigarette smoke is bad for you, but many don’t realize that secondhand marijuana smoke may also be harmful.” (Stanton Glantz, Secondhand Marijuana Smoke May Damage Blood Vessels As Much As Tobacco Smoke, UCSF Center for Tobacco Control Research and Education (November 16, 2014) <https://tobacco.ucsf.edu/secondhand-marijuana-smoke-may-damage-blood-vessels-much-tobacco-smoke> [as of June 5, 2016].)

1. Landlord authority to prohibit smoking tobacco products

Under current law, landlords can prohibit the smoking of tobacco products on rented property and in residential dwelling units as a condition of a tenancy agreement. For many years, bans on smoking have been viewed as similar to other rules tenants must follow as a condition of their tenancy, such as observing specified quiet hours or not allowing pets to live in a unit. A landlord’s ability to prohibit or restrict smoking on a property helps the landlord protect his or her interest in the property, as well as maintain conditions that preserve the right of quiet enjoyment guaranteed to all tenants under California law.

In 2011, the Legislature codified the ability of a residential landlord to prohibit the smoking of tobacco products on a rented property or in any building or portion of a building, including in a residential dwelling unit. (See SB 332 [Padilla, Ch. 264, Stats. 2011].) This bill would codify that the Medical Marijuana Program Act does not authorize qualified patients to engage in the smoking of medical marijuana in any location prohibited by a landlord, and by cross reference to the applicable section of the Civil Code involving the smoking of tobacco products, would imply that landlords have the authority to prohibit the smoking of medical marijuana in rented accommodations or on rented property.

1. Impact to qualified patients

With the passage of Proposition 215 in 1996, the people of California recognized the smoking of marijuana to be medically beneficial in certain circumstances. Unlike the smoking of tobacco products which has limited, if any, health benefits, Proposition 215 declared that “Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana,” and identified the treatment of “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, [and] migraine” as illnesses for which marijuana may provide relief. (Health & Saf. Code Sec. 11362.5(b)(1).)

While the law recognizes that landlords can prohibit the smoking of tobacco products on rental property, it is unclear whether landlords have an unconditional power to prohibit the smoking of medical marijuana on these properties, particularly since Proposition 215 recognized a patient’s right of access to medical marijuana in certain circumstances. If, for example, a tenant smokes medical marijuana on the advice of his or her doctor to treat a terminal cancer, could a landlord unconditionally prohibit such activity without running afoul of the tenant’s right of access, particularly if the tenant was unable to easily move to an alternate location where smoking was permissible? If a tenant has a medical need to smoke marijuana for the treatment of a particular disability, would an unconditional ban on the smoking of medical marijuana conflict with a tenant’s right to be free from discrimination in housing accommodation under the Fair Employment and Housing Act?

While this bill does not explicitly authorize landlords to prohibit the smoking of medical marijuana in rented accommodations or on rented property, it would declare that the Medical Marijuana Program Act does not require a landlord to permit the medical use of marijuana on the landlord’s property or premises. Such a declaration raises the policy question of how a landlord should exercise whatever power he or she has to restrict the smoking of medical marijuana, particularly since other state laws may limit that power. From a policy standpoint, implementing restrictions on the use of medical marijuana in the rental housing context should balance the rights of the landlord (and other tenants) to prohibit activities that could damage real property and impact the health of surrounding tenants, while ensuring that tenants who have a recognized right to use medical marijuana are still able to exercise that right.

Suggested Amendment:

• restrict the ability of landlords to prohibit or condition the smoking of medical marijuana where such conditions or prohibitions effectively deny patient access to medical marijuana.

Support: Apartment Association, California Southern Cities; Association of California Healthcare Districts; California Association of Realtors; County Health Executives Association of California; East Bay Rental Housing Association; Apartment Association of Orange County; North Valley Property Owners Association

Opposition: Greenbridge Corporate Counsel; Legal Services for Prisoners with Children

HISTORY

Source: California Apartment Association

Related Pending Legislation: None Known

Prior Legislation:

SB 332 (Padilla, Ch. 264, Stats. 2011) codified the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any residential dwelling unit.

AB 2279 (Leno, 2008) would have provided that an employee who is a qualified patient cannot be fired from a job because of his or her status as a qualified patient or for testing positive for marijuana, and would have provided that an employee who is a qualified patient cannot be discriminated against or penalized by an employer for marijuana status or positive testing during the hiring process. This bill was vetoed by Governor Schwarzenegger who asserted that the bill would interfere with employment decisions relating to marijuana use.

SB 420 (Vasconcellos, Ch. 875, Stats. 2003) See Background.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2300

Author:(Wood)

As Amended Ver:April 28, 2016

Majority vote

SUMMARY: Codifies a landlord's right to prohibit smoking of medical marijuana on the rental property. Specifically, this bill clarifies that existing law does not authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana in any location at which smoking is prohibited by a landlord pursuant to, and subject to the same restrictions set forth in, Civil Code Section 1947.5.

FISCAL EFFECT: None

COMMENTS: California already bans smoking of tobacco products in most public places, and restricts where medical marijuana may be used. According to the author, both landlords and marijuana user advocates have interpreted existing law to mean that rules restricting cigarette and tobacco smoking generally apply to the smoking of medical marijuana, as well. This bill, sponsored by the California Apartment Association (CAA), seeks to make clear that existing law gives landlords the authority to prohibit cigarette and tobacco smoking and also provides authority to prohibit smoking medical marijuana.

Landlords appear to already have the authority to prohibit the smoking of medical marijuana on their rental property, as this bill makes clear. According to CAA, landlords already have the authority to prohibit the smoking of medical marijuana on their rental property, although this authority is not yet specifically articulated in statute. First, they contend that a ban on smoking medical marijuana is similar to other contractual restrictions that landlords may place on tenants, including the imposition of "quiet hours," guest restrictions, pet restrictions and other limitations on the use of the dwelling unit—including the prohibition of cigarette or tobacco smoking. Prior to 2011, the law allowed landlords to prohibit cigarette smoking in their residential properties so long as the rules governing the prohibition were included as terms of the rental agreement. Then in 2011, the Legislature approved and the Governor signed SB 332 (Padilla) Chapter 264, which codified the authority of landlords to prohibit the smoking of cigarettes and other tobacco products on their rental properties. Secondly, proponents note that possession or use of marijuana, medical or otherwise, has always been and continues to be illegal under federal law. Virtually all leases in California require tenants to comply with local, state and federal laws, so proponents contend that virtually all leases in California already prohibit marijuana use. Finally, proponents note that there appear to be no laws or regulations preventing landlords from banning the smoking of medical marijuana on their rental properties, and no tenant has a legal right to smoke marijuana, medical or otherwise, in his or her apartment.

Marijuana user advocacy organizations, including Americans for Safe Access (ASA) and California National Organization for the Reform of Marijuana Laws (NORML), apparently acknowledge this point, and have officially adopted a neutral position on this bill. ASA states: "This bill upholds the status quo under state law. (We) acknowledge that property owners already have the authority to prohibit the smoking of medical cannabis in rental properties in the lease agreement." California NORML states: "We have generally advised consumers the non-smoking rules apply to medical marijuana, as implied by Health & Safety Code [HSC] Section 11362.79 (a)."

While this bill seeks to make clear that landlords may prohibit the smoking of medical marijuana, it does not purport to change the terms of any person's tenancy. Committee staff notes that the purpose of this bill is similar to the purpose of SB 332, legislation which successfully sought to codify the existing authority of landlords to prohibit cigarette and tobacco use in their rental properties. A review of the legislative history of SB 322 reveals that "the intent of the bill is to codify the landlord's ability to ban smoking so that, should this bill be enacted, a landlord would have the same authority as under existing law." (Senate Judiciary Committee analysis, April 26, 2011.) The Senate Judiciary analysis continues:

Although landlords may currently prohibit smoking in and around their rental units, the act of codifying that authority raises the policy question of how that ability should be exercised by a landlord. From a policy standpoint, the prohibition should balance the rights of the landlord (and community) to prohibit smoking that could damage real property and impact the health of surrounding tenants while ensuring that tenants addicted to smoking who are not currently subject to a smoking ban have a reasonable time to find new housing, quit smoking, or find an alternate area in which to smoke.

This bill seeks to address those issues by (1) requiring smoking restrictions to be in rental agreements, (2) providing that a smoking prohibition constitutes a change in terms of tenancy requiring adequate notice, and (3) clarifying that a landlord who exercises his or her power to prohibit smoking is subject to state and local notice requirements.

Committee staff notes that while SB 322 includes the above described protections to ensure due process for tenants who potentially face an adverse impact on their housing situation, it is not clear that this bill has similar protections in place. For example, while CAA states that this bill "cannot be used as an excuse to simply evict long-standing tenants in rent-controlled properties" (which was a concern of SB 322 before due process language was crafted in HSC Section 11362.7 (c) to address it), it is not clear that the current language of the bill carries out the author's intent.

CAA contends there are key differences between SB 322's approach and the approach of this bill, the key one being that smoking tobacco is not illegal under federal law, while smoking marijuana (medical or non-medical) has always been illegal under federal law. Consequently, CAA contends, codifying the landlord's authority to prohibit cigarette smoking, an otherwise legal activity, is different because doing so in many cases creates a change-in-tenancy that subsequently must be addressed by existing law that requires adequate notice to be given to affected tenants. Here, they argue, codifying the landlord's authority to prohibit smoking medical marijuana creates no change-in-tenancy because no California tenant has a legal right to smoke marijuana in the rental property. That conduct has always violated federal law and routine provisions of every lease that require compliance with all federal laws. If no change-in-tenancy is created, then due process protections to address potential concerns are not necessary. CAA cautions that the absence of an express prohibition against something should not be considered consent by the landlord to allow the smoking of marijuana on the premises. For example, no rental agreement calls out the fact that a tenant can't commit murder on the premises, but murder is still illegal and would be grounds for eviction under the lease, in addition to much greater liability. In short, CAA argues that this bill does not "pull the rug out from anyone" because the bill is not changing any existing rules or terms of tenancy.

For all of these reasons, the author and CAA make a strong case that landlords already possess the authority to prohibit the smoking of medical marijuana in their rental property. Accordingly, the bill seeks to make explicit what is implied by HSC Section 11362.79, and, as recently amended, provides that a qualified marijuana patient or a person with an identification card under the Medical Marijuana Program is not authorized to smoke medical marijuana in any location at which smoking is prohibited by a landlord pursuant to, and subject to the same restrictions set forth in, Civil Code Section 1947.5.

This bill does not appear to infringe upon a person's right to use medical marijuana under the Compassionate Use Act. In clarifying that a landlord may prohibit the smoking of medical marijuana in rental property, it could be argued that this bill may infringe on the rights of marijuana patients who rent their homes to take their medicine under Proposition 215 (also known as the Compassionate Use Act of 1996). According to the author, this bill does not infringe upon those rights because it does not prohibit other forms of marijuana consumption, including edibles, oils or other non-smoking means. Only smoking, which produces secondhand smoke that may affect the health of others, of marijuana may be prohibited by the landlord under this bill. Proposition 215 clearly states that it is intended "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" -- but does not specifically mention the right to smoke marijuana. The author notes that patients will still be able to exercise their right to obtain and use medical marijuana under the provisions of this bill, but they will need to obtain and use it in forms other than smoking.

Proponents argue that the bill already accommodates medical marijuana patients by allowing them to take marijuana in other forms on the rental premises. Committee staff research did not reveal any case law holding that a landlord is entitled to provide a reasonable accommodation to a person who for medical reasons must smoke marijuana rather than take it in some other form. Under the federal Fair Housing Act (FHA), housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. However, courts have not yet found that a reasonable accommodation must be made for a patient who smokes medical marijuana because the FHA specifically excludes the use of a controlled substance from protection under federal law, and marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

The bill is opposed by Greenbridge Corporate Counsel, lawyer advocates for medical cannabis patients. Greenbridge contends that there is, in fact, a subcategory of marijuana patients who, because of their particular health condition, need to inhale cannabis rather than taking it in edible form. This group of patients, while still facing the same legal obstacles posed by the FHA and Controlled Substances Act in claiming reasonable accommodations, would nonetheless face the unenviable predicament of having to choose between their medicine or their home under this bill should it become law. Greenbridge explains that many patients need to inhale cannabis, meaning either smoke or vaporize, rather than ingest it via eating it. Patients who use cannabis for acute or severe symptoms, such as cachexia or nausea, need fast-acting relief. Inhalation takes less than a minute to deliver this symptom relief, whereas ingestion of edible medical cannabis products can take over an hour. Patients suffering from gastrointestinal distress, experiencing nausea or vomiting, may use medical cannabis in order to be able to eat, and may be unable to consume baked goods or liquid preparations. (Citation omitted) Furthermore, People whose symptoms vary day-to-day may need more or less cannabis to relieve their symptoms than they did yesterday. Inhalation's quick onset makes it possible to titrate the dose (i.e. decide whether more or less is needed), whereas ingestion takes much longer before knowing whether increasing the dose is necessary. Greenbridge therefore is in discussion with the author about potential amendments that would clarify that vaporization of cannabis would not be banned by the prohibition on smoking of marijuana.

Should landlords who prohibit medical marijuana also be required to prohibit tobacco smoking? User advocates, including Americans for Safe Access and California NORML, are neutral on the bill, but state that "they believe current scientific evidence shows that secondhand marijuana smoke does not pose the same kind of health dangers as tobacco." Proponents of the bill, by contrast, cite the need to reduce potentially harmful secondhand smoke exposure from marijuana smoke to neighboring tenants and families as one of the main justifications for the bill. The author cites a recent study by University of California, San Francisco (UCSF) researchers indicating that breathing secondhand marijuana smoke could damage the heart and blood vessels as much as secondhand cigarette smoke. In this preliminary study, researchers found that lab rats exposed to secondhand marijuana smoke had a 70% drop in blood vessel function, similar to the cardiovascular effects produced by secondhand tobacco smoke. ("Secondhand marijuana smoke may damage blood vessels as much as tobacco smoke", UCSF Center for Tobacco Control Research and Education (November 16, 2014.).) Furthermore, the California Association of Realtors, writing in support, states that "for the purposes of rental housing, [AB 2300] seeks to treat all smoking the same, regardless of the substance." It therefore stands to reason that if a landlord is to prohibit marijuana smoking in rental property, then cigarette and tobacco smoking should also be prohibited by the landlord in that property, given the stated goal of the bill to protect public health.

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0002837

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended

SUBJECT: : RENTAL PROPERTY: PROHIBITION

KEY ISSUE: SHOULD the state codify a landlord's right to prohibit the smoking of medical marijuana on the premises of rental property?

SYNOPSIS

California currently bans smoking of tobacco products in most public places, and restricts where medical marijuana may be used. According to the author, both landlords and marijuana user advocates agree that under existing law, rules restricting cigarette smoking generally apply to the smoking of medical marijuana, as well. This bill, sponsored by the California Apartment Association (CAA), seeks to make clear that existing law giving landlords the authority to prohibit cigarette and tobacco smoking also extends to the smoking of medical marijuana. As proposed to be amended, the bill clarifies that the prohibition of smoking of medical marijuana in any location where cigarette or tobacco smoking is prohibited by a landlord is pursuant to and subject to the same restrictions set forth in Civil Code Section 1947.5 (as enacted by SB 322 (2011), codifying landlord authority to prohibit tobacco smoking in rental property.) These restrictions are intended to ensure greater due process to tenants who might be impacted by enforcement of a new policy or changes in the terms of their tenancy.

Proposition 215, the Compassionate Use Act of 1996, states that the Act is intended "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes", but does not specifically mention the right to smoke marijuana. According to the author, this bill does not infringe upon a person's rights to use medical marijuana under Proposition 215 because it prohibits only the smoking of marijuana, but not the use of other forms of marijuana, including edibles, oils or other non-smoking means of ingesting medical cannabis. The bill is supported by landlord groups, the Realtors, and county health executives. Marijuana use advocates, including Americans for Safe Access and California NORML, are neutral on the bill, as they agree with supporters that this bill simply codifies existing law that already gives landlords the authority to prohibit medical marijuana in rental property. The bill is opposed by other user advocates who, among other things, want vaporizing to be exempted from the definition of "smoking" since there is no combustion or burning of cannabis involved in that method of using medicinal marijuana.

SUMMARY: Codifies a landlord's right to prohibit smoking of medical marijuana on the rental property. Specifically, this bill clarifies that existing law does not authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana in any location at which smoking is prohibited by a landlord pursuant to, and subject to the same restrictions set forth in, Section 1947.5 of the Civil Code.

EXISTING LAW:

1. Pursuant to the Medical Marijuana Program (MMP), requires the State Department of Public Health to establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy specified requirements with respect to the use of medical marijuana. (Article 2.5 of Chapter 6 of Division 10 of the Health & Safety Code, commencing with Section 11362.7.)
2. Clarifies that nothing in the MMP authorizes a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances: (a) In any place where smoking is prohibited by law; (b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence; (c) On a school bus; (d) While in a motor vehicle that is being operated; (e) While operating a boat. (Health & Safety Code Section 11362.79.)
3. Permits a landlord of a residential dwelling unit, or his or her agent, to prohibit the smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located. (Civil Code 1947.5 (a).)
4. Provides that a landlord who exercises the above authority to prohibit smoking shall be subject to federal, state, and local requirements governing changes to the terms of a lease or rental agreement for tenants with leases or rental agreements that are in existence at the time that the policy limiting or prohibiting smoking is adopted. (Civil Code 1947.5 (c).)
5. Provides that a limitation or prohibition of the use of any tobacco product shall not affect any other term or condition of the tenancy, nor shall these provisions be construed to require statutory authority to establish or enforce any other lawful term or condition of the tenancy. (Civil Code 1947.5 (e).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: California already bans smoking of tobacco products in most public places, and restricts where medical marijuana may be used. According to the author, both landlords and marijuana user advocates have interpreted existing law to mean that rules restricting cigarette and tobacco smoking generally apply to the smoking of medical marijuana, as well. This bill, sponsored by the California Apartment Association (CAA), seeks to make clear that existing law gives landlords the authority to prohibit cigarette and tobacco smoking and also provides authority to prohibit smoking medical marijuana. CAA states:

In 2011, the State Legislature overwhelmingly passed legislation to allow rental property owners to prohibit the smoking of tobacco within rental properties. AB 2300 would extend that same authority to medicinal marijuana smoking.

The smoking of marijuana is a major source of conflict between smoking and non-smoking tenants, with landlords getting caught in the middle. In multi-family housing, secondhand smoke can easily travel into neighboring units through windows, doors, shared ventilation systems and walls. Families living in rental housing are exposed to potentially harmful secondhand smoke from their neighbor's smoking. In addition, smoking in rental units causes significant damage to the walls, carpets, drapes and upholstery. Smoking substantially increases the risk of fire and the potential for property damage or personal injury.

Landlords appear to already have the authority to prohibit the smoking of medical marijuana on their rental property, as this bill makes clear. According to CAA, landlords already have the authority to prohibit the smoking of medical marijuana on their rental property, although this authority is not yet specifically articulated in statute. First, they contend that a ban on smoking medical marijuana is similar to other contractual restrictions that landlords may place on tenants, including the imposition of “quiet hours," guest restrictions, pet restrictions and other limitations on the use of the dwelling unit—including the prohibition of cigarette or tobacco smoking. Prior to 2011, the law allowed landlords to prohibit cigarette smoking in their residential properties so long as the rules governing the prohibition were included as terms of the rental agreement. Then in 2011, the Legislature approved and the Governor signed SB 332 (Padilla) Ch. 264, Stats. 2011, which codified the authority of landlords to prohibit the smoking of cigarettes and other tobacco products on their rental properties. Secondly, proponents note that possession or use of marijuana, medical or otherwise, has always been and continues to be illegal under federal law. Virtually all leases in California require tenants to comply with local, state and federal laws, so proponents contend that virtually all leases in California already prohibit marijuana use. Finally, proponents note that there appear to be no laws or regulations preventing landlords from banning the smoking of medical marijuana on their rental properties, and no tenant has a legal right to smoke marijuana, medical or otherwise, in his or her apartment.

Marijuana user advocacy organizations, including Americans for Safe Access and California NORML, apparently acknowledge this point, and have officially adopted a neutral position on this bill. ASA states: "This bill upholds the status quo under state law. (We) acknowledge that property owners already have the authority to prohibit the smoking of medical cannabis in rental properties in the lease agreement." California NORML states: "We have generally advised consumers the non-smoking rules apply to medical marijuana, as implied by Health & Safety Code Section 11362.79 (a)."

For all of these reasons, the author and CAA make a strong case that landlords already possess the authority to prohibit the smoking of medical marijuana in their rental property. Accordingly, the bill seeks to make explicit what is implied by HSC Section 11362.79, and amends that section to provide that a qualified marijuana patient or a person with an identification card under the Medical Marijuana Program "is not authorized to smoke medical marijuana in any location at which smoking is prohibited by a landlord pursuant to Section 1947.5 of the Civil Code."

While this bill seeks to make clear that landlords may prohibit the smoking of medical marijuana, it does not purport to change the terms of any person's tenancy. Committee staff notes that the purpose of this bill is similar to the purpose of SB 332 (2011), legislation which successfully sought to codify the existing authority of landlords to prohibit cigarette and tobacco use in their rental properties. A review of the legislative history of SB 322 reveals that "the intent of the bill is to codify the landlord’s ability to ban smoking so that, should this bill be enacted, a landlord would have the same authority as under existing law." (Senate Judiciary Committee analysis, April 26, 2011.) The Senate Judiciary analysis continues:

Although landlords may currently prohibit smoking in and around their rental units, the act of codifying that authority raises the policy question of how that ability should be exercised by a landlord. From a policy standpoint, the prohibition should balance the rights of the landlord (and community) to prohibit smoking that could damage real property and impact the health of surrounding tenants while ensuring that tenants addicted to smoking who are not currently subject to a smoking ban have a reasonable time to find new housing, quit smoking, or find an alternate area in which to smoke.

This bill seeks to address those issues by (1) requiring smoking restrictions to be in rental agreements, (2) providing that a smoking prohibition constitutes a change in terms of tenancy requiring adequate notice, and (3) clarifying that a landlord who exercises his or her power to prohibit smoking is subject to state and local notice requirements.

Committee staff notes that while SB 322 includes the above described protections to ensure due process for tenants who potentially face an adverse impact on their housing situation, it is not clear that this bill has similar protections in place. For example, while CAA states that this bill "cannot be used as an excuse to simply evict long-standing tenants in rent-controlled properties" (which was a concern of SB 322 before due process language was crafted in HSC 11362.7 (c) to address it), it is not clear that the current language of the bill carries out the author's intent.

CAA contends there are key differences between SB 322’s approach and the approach of this bill, the key one being that smoking tobacco is not illegal under federal law, while smoking marijuana (medical or non-medical) has always been illegal under federal law. Consequently, CAA contends, codifying the landlord's authority to prohibit cigarette smoking, an otherwise legal activity, is different because doing so in many cases creates a change-in-tenancy that subsequently must be addressed by existing law that requires adequate notice to be given to affected tenants. Here, they argue, codifying the landlord's authority to prohibit smoking medical marijuana creates no change-in-tenancy because no California tenant has a legal right to smoke marijuana in the rental property. That conduct has always violated federal law and routine provisions of every lease that require compliance with all federal laws. If no change-in-tenancy is created, then due process protections to address potential concerns are not necessary. CAA cautions that the absence of an express prohibition against something should not be considered consent by the landlord to allow the smoking of marijuana on the premises. For example, no rental agreement calls out the fact that a tenant can't commit murder on the premises, but murder is still illegal and would be grounds for eviction under the lease, in addition to much greater liability. In short, CAA argues that this bill does not "pull the rug out from anyone" because the bill is not changing any existing rules or terms of tenancy.

Proposed amendment: Setting aside the open question of whether codifying a landlord's authority under this bill potentially changes, or otherwise impacts, the terms of tenancies by thousands of renters who currently use medical marijuana at home, the author and sponsor have indicated that, out of an abundance of caution, it may be clarified that the protections of Section 11362.7, which go hand in hand with the statutory authority to prohibit smoking cigarettes, shall also apply to this bill. Accordingly, the author proposes the following amendment:

On page 2, line 7, strike “pursuant to” and insert “pursuant to, and subject to the same restrictions set forth in,”

This bill does not appear to infringe upon a person's right to use medical marijuana under the Compassionate Use Act. In clarifying that a landlord may prohibit the smoking of medical marijuana in rental property, it could be argued that this bill may infringe on the rights of marijuana patients who rent their homes to take their medicine under Proposition 215 (also known as the Compassionate Use Act of 1996). According to the author, this bill does not infringe upon those rights because it does not prohibit other forms of marijuana consumption, including edibles, oils or other non-smoking means. Only smoking, which produces secondhand smoke that may affect the health of others, of marijuana may be prohibited by the landlord under this bill. Proposition 215 clearly states that it is intended "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes” -- but does not specifically mention the right to smoke marijuana. The author notes that patients will still be able to exercise their right to obtain and use medical marijuana under the provisions of this bill, but they will need to obtain and use it in forms other than smoking.

Proponents argue that the bill already accommodates medical marijuana patients by allowing them to take marijuana in other forms on the rental premises. Committee staff research did not reveal any case law holding that a landlord is entitled to provide a reasonable accommodation to a person who for medical reasons must smoke marijuana rather than take it in some other form. Under the federal Fair Housing Act (FHA), housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. However, courts have not yet found that a reasonable accommodation must be made for a patient who smokes medical marijuana because the FHA specifically excludes the use of a controlled substance from protection under federal law, and marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

The bill is opposed by Greenbridge Corporate Counsel, lawyer advocates for medical cannabis patients. Greenbridge contends that there is, in fact, a subcategory of marijuana patients who, because of their particular health condition, need to inhale cannabis rather than taking it in edible form. This group of patients, while still facing the same legal obstacles posed by the FHA and Controlled Substances Act in claiming reasonable accommodations, would nonetheless face the unenviable predicament of having to choose between their medicine or their home under this bill should it become law. Greenbridge explains the medical factors as follows:

Over two million medical cannabis patients reside in California, and most are tenants. Many of these two million patients need to inhale cannabis, meaning either smoke or vaporize, rather than ingest it via eating it. Patients who use cannabis for acute or severe symptoms, such as cachexia or nausea, need fast-acting relief. Inhalation takes less than a minute to deliver this symptom relief, whereas ingestion of edible medical cannabis products can take over an hour. Patients suffering from gastrointestinal distress, experiencing nausea or vomiting, may use medical cannabis in order to be able to eat, and may be unable to consume baked goods or liquid preparations. (See “Gastrointestinal Disorders and Medical Marijuana” by Americans for Safe Access, at safeaccessnow.org/ gastrointestinal_disorders_booklet.)

Further, a major advantage of inhalation is dose titration. People whose symptoms vary day-to-day may need more or less cannabis to relieve their symptoms than they did yesterday. Inhalation’s quick onset makes it possible to titrate the dose (i.e. decide whether more or less is needed), whereas ingestion takes much longer before knowing whether increasing the dose is necessary.

According to a [recent article] in Forbes: "One of the issues lies in how the two forms of the drug are absorbed and metabolized, and how quickly the high comes on. 'The major difference is in the absorption of the [edible] product into the blood stream,' says Kari Franson, PharmD, PhD, Clinical Pharmacologist and Associate Dean for Professional Education, Department of Clinical Pharmacy, at University of Colorado Skaggs School of Pharmacy. 'Once it is in the blood, it quickly goes to and has an effect on the brain. With smoking, the peak blood levels happen within 3-10 minutes, and with eating, it’s 1-3 hours.' ("Is Eating Marijuana Really Riskier Than Smoking It?" Forbes Magazine, (June 4, 2014).)

Thus, ingesting medical cannabis, by virtue of its less rapid onset, provides inferior symptom relief for patients seeking to address acute symptoms as rapidly as possible.

Should landlords who prohibit medical marijuana also be required to prohibit tobacco smoking? User advocates, including Americans for Safe Access and California NORML, are neutral on the bill, but state that "they believe current scientific evidence shows that secondhand marijuana smoke does not pose the same kind of health dangers as tobacco." Proponents of the bill, by contrast, cite the need to reduce potentially harmful secondhand smoke exposure from marijuana smoke to neighboring tenants and families as one of the main justifications for the bill. The author cites a recent study by UCSF researchers indicating that breathing secondhand marijuana smoke could damage the heart and blood vessels as much as secondhand cigarette smoke. In this preliminary study, researchers found that lab rats exposed to secondhand marijuana smoke had a 70 percent drop in blood vessel function, similar to the cardiovascular effects produced by secondhand tobacco smoke. ("Secondhand marijuana smoke may damage blood vessels as much as tobacco smoke", UCSF Center for Tobacco Control Research and Education (November 16, 2014.).) Furthermore, the California Association of Realtors, writing in support, states that "for the purposes of rental housing, [AB 2300] seeks to treat all smoking the same, regardless of the substance."

The Committee agrees with this simple principle and believes that if a landlord is to prohibit marijuana smoking in rental property, then cigarette and tobacco smoking should also be prohibited by the landlord in that property, without exception. The evidence that secondhand tobacco smoke injures health is more established and documented than that for secondhand marijuana smoke, a relatively new subject of academic study. Thus, it makes no sense to permit a landlord to prohibit marijuana smoking while allowing tobacco smoking on the same rental property given the stated goal of the bill to protect public health. Accordingly, the author may wish to consider a simple amendment to require landlords to prohibit tobacco smoking whenever medical marijuana smoking is prohibited under this bill. While there is more than one way to craft such an amendment, one possible way would be to add subdivision (f) to Civil Code Section 1947.5, stating:

Civil Code 1947.5.

. . .

(f) A limitation or prohibition of smoking medical marijuana may not be included in the lease or rental agreement unless there is a similar limitation or prohibition of the smoking of cigarettes or other tobacco products in accordance with this section.

ARGUMENTS IN SUPPORT: The bill is supported by the Association of California Healthcare Districts (ACHD), who represents 78 healthcare districts throughout the state that offer a variety of services to improve community health. ACHD believes that current research shows that secondhand marijuana smoke is harmful and therefore appropriate to be banned from rental housing. ACHD states:

Healthcare districts are vitally concerned with public health issues. The effect of exposure to secondhand marijuana smoking is an increasing public health concern. A recent study from UC San Francisco found that similar to tobacco smoke, marijuana smoke reduces blood vessel function. Impaired blood vessel function can increase the risk of heart attack and atherosclerosis—a major risk factor for heart disease. The researchers stated, "There's no reason to think marijuana smoke is better than tobacco smoke. Avoid them both."

Many studies have documented the negative effects that marijuana may have on health, including poor memory and changes in brain function similar to those found in patients with schizophrenia, while other research found that marijuana may cause sleep problems.

ARGUMENTS IN OPPOSITION: The bill is opposed unless amended by Greenbridge Corporate Counsel. Greenbridge seeks amendments to ensure that vaporizing medical marijuana does not fall under the definition of "smoking" medical marijuana under this bill. They write:

The Legislature's stated purpose in allowing landlords to prohibit tobacco smoking was reducing the harms of secondhand smoke. Thus AB 2300 could be amended to exempt vaporizing from the activities that landlords may prohibit. This could be accomplished as simply as defining the term "smoking" to include combustion, so that vaporizing (releasing cannabis vapors by heating cannabis above its activation temperature but below its combustion point) would remain legal for medical cannabis patients who are tenants. If this bill were amended to exempt vaporizing from this new prohibition on patients who are renters, we would remove our opposition.

The bill is also opposed by Legal Services for Prisoners with Children (LSPC), who believe the bill has negative criminal justice implications. LSPC writes: "People smoke in their own homes in order to do so privately. This bill would make it more likely that people who have been prescribed marijuana (and therefore need to use it) will have to smoke in public spaces—increasing their risk of being arrested and prosecuted."

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association (sponsor)

Apartment Association, California Southern Cities

Apartment Association of Orange County

Association of California Healthcare Districts

California Association of Realtors

County Health Executives Association of California (CHEAC)

East Bay Rental Housing Association

North Valley Property Owners Association

Western Manufactured Housing Communities Association (support if amended)

Neutral

Americans for Safe Access

National Organization for the Reform of Marijuana Laws (NORML), CA Chapter

Opposition

Greenbridge Corporate Counsel (oppose unless amended)

Legal Services for Prisoners with Children

Analysis Prepared by: