BILL NUMBER: SB 1098 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Migden
JANUARY 14, 2008
An act to add Section 11362.84 to the Health and Safety Code, and
to add Article 1.7 (commencing with Section 7067) to Chapter 8 of
Part 1 of Division 2 of the Revenue and Taxation Code, relating to
medical marijuana.
LEGISLATIVE COUNSEL'S DIGEST
SB 1098, as introduced, Migden. Medical marijuana.
Existing law creates a legal defense for a patient and a patient's
primary caregiver against criminal charges of possession or
cultivation of marijuana, as specified. Existing law also establishes
a medical marijuana program which exempts persons with an
identification card and the person's designated primary caregiver
from arrest for possession, transportation, delivery, or cultivation
of medical marijuana, as specified.
This bill would declare that the Court of Appeal of California,
3rd Appellate District, made certain findings in a specified decision
with respect to those provisions. This bill would require the
medical marijuana program to be applied consistently with the opinion
of the appellate court as stated in that decision.
Existing law imposes specified taxes, including sales and use
taxes that are administered by the State Board of Equalization, and
requires the State Board of Equalization to administer tax amnesty
programs, during specified periods.
This bill would require the State Board of Equalization to
administer a tax amnesty program, as specified, for medical cannabis
dispensaries, as defined.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that on September
12, 2005, the Court of Appeal of California, Third Appellate
District, in the matter of People v. Urziceanu (2005) 132 Cal.App.4th
747, stated the following:
(a) With respect to the Compassionate Use Act (Section 11362.5 of
the Health and Safety Code), approved by voters in 1996 as
Proposition 215:
(1) The Compassionate Use Act is a narrowly drafted statute
designed to allow a qualified patient and his or her primary
caregiver to possess and cultivate marijuana for the patient's
personal use despite the penal laws that outlaw these two acts for
all others.
(2) Further, the enactment of the Compassionate Use Act did not
alter the statutory prohibitions related to marijuana, including
those that bar the transportation, possession for sale, and sale of
marijuana. When the people of this state passed this act, they
declined to decriminalize marijuana on a wholesale basis.
(3) As a result, the courts have consistently resisted attempts by
advocates of medical marijuana to broaden the scope of these limited
specific exceptions, instead directing the proponents of this
approach back to the Legislature to address the perceived
shortcomings with the Compassionate Use Act.
(b) With respect to the Medical Marijuana Program (Article 2.5
(commencing with Section 11362.7) of Chapter 6 of Division 10 of the
Health and Safety Code), enacted by the Legislature pursuant to
Senate Bill 420 (Chapter 875 of the Statutes of 2003):
(1) The Medical Marijuana Program represents a dramatic change in
the prohibitions on the use, distribution, and cultivation of
marijuana for persons who are qualified patients or primary
caregivers.
(2) This law has abrogated the limits expressed in cases that took
a restrictive view of the activities allowed by the Compassionate
Use Act.
(3) The Legislature has exempted those qualifying patients and
primary caregivers who collectively or cooperatively cultivate
marijuana for medical purposes from criminal sanctions for possession
for sale, transportation, or furnishing marijuana, maintaining a
location for unlawfully selling, giving away, or using controlled
substances, managing a location for the storage, distribution of any
controlled substance for sale, and the laws declaring the use of
property for these purposes a nuisance.
(4) The Legislature expressly stated that it intended to enhance
the access of patients and caregivers to medical marijuana through
collective, cooperative cultivation projects, and to address
additional issues that were not included within the Compassionate Use
Act, and that must be resolved in order to promote the fair and
orderly implementation of that act. Further, the Medical Marijuana
Program set forth the new affirmative defense allowing collective
cultivation of marijuana, expands the defense to penal sections not
identified by the Compassionate Use Act, and contains no savings
clause. These facts lead to the conclusion that the Medical Marijuana
Program must be retroactively applied.
SEC. 2. Section 11362.84 is added to the Health and Safety Code,
to read:
11362.84. The provisions of this article shall not be applied
inconsistently with the opinion of the California Court of Appeal,
Third Appellate District, in the matter of People v. Urziceanu (2005)
132 Cal.App.4th 747, including, but not limited to, its holding that
the Medical Marijuana Program's specific itemization of the
marijuana sales law indicates that the act contemplates the formation
and operation of medicinal marijuana cooperatives that would receive
reimbursement for marijuana and the services provided in conjunction
with the provision of that marijuana.
SEC. 3. Article 1.7 (commencing with Section 7067) is added to
Chapter 8 of Part 1 of Division 2 of the Revenue and Taxation Code,
to read:
Article 1.7. Tax Amnesty
7067. (a) Notwithstanding any other law, a medical cannabis
dispensary engaged in business in this state of selling marijuana for
medical purposes that has failed to file a return or report or pay
the tax or amount due as required by this part, shall be relieved of
liability for tax, additions to tax, interest, and penalty on its
sales of tangible personal property made prior to October 1, 2005, if
both of the following occur:
(1) The dispensary applies for voluntary disclosure relief in a
form, as prescribed by the board, no later than March 31, 2009.
(2) The dispensary begins prospective compliance under this part.
For purposes of this article, a dispensary begins prospective
compliance when the dispensary makes a good faith effort to comply
with the provisions of this part, including obtaining a seller's
permit and filing returns and remitting amounts due, subsequent to
the effective date of this article. A dispensary has made a good
faith effort to comply with the provisions of this part when the
dispensary makes a reasonable and honest effort to fulfill its duties
and obligations as a seller of tangible personal property and does
not intentionally or purposefully misrepresent its tax obligations to
the board.
(b) If the board finds that the dispensary has failed to make a
good faith effort to comply with the provisions of this part, the
board may disallow the relief provided by this article. The board
shall retain the right to audit dispensaries and assess any tax,
penalty, and interest that may be determined to be due in accordance
with this part.
(c) Nothing in this article shall be construed to allow for a
refund to a dispensary of any tax, interest, or penalty paid prior to
the effective date of the article, unless otherwise allowed by law.
(d) The relief provided by this article shall not apply to any
dispensary that has collected sales tax reimbursement prior to
October 1, 2005.
(e) The board shall separately identify in its records marijuana
cannabis dispensaries that apply for voluntary disclosure relief
pursuant to this article.
(f) For purposes of this article, "medical cannabis dispensary" or
"dispensary" means any person or entity that engages in retail sales
of marijuana for medical purposes to qualified patients or patients'
primary caregivers pursuant to Sections 11362.5 to 11362.83,
inclusive, of the Health and Safety Code, commonly referred to as the
Compassionate Use Act of 1996 and the Medical Marijuana Program.