BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session SB 129 (Leno) As Introduced Hearing Date: March 29, 2011 Fiscal: No Urgency: No TW SUBJECT Medical Marijuana: Qualified Patients: Employment Discrimination DESCRIPTION This bill would prohibit employment discrimination on the basis of a person's status as a qualified patient (medical marijuana user) or on the basis of the person's positive drug test for marijuana, provided the person is a qualified patient and the medical use of marijuana does not occur at the place of employment or during hours of employment. This bill contains an exception to the prohibition when an employer hires a person in a safety-sensitive position, as specified. This bill would create, for a person who has suffered discrimination as described above, a civil action for damages, injunctive relief, attorney's fees and costs, and any other appropriate equitable relief to protect the peaceable exercise of the right or rights secured. Finally, this bill contains a savings clause that states nothing in the section shall prohibit the employer from terminating the employment, or taking other corrective action against a person who is impaired on the property or premises of the place of employment or during hours of employment because of the medical use of marijuana. BACKGROUND In 1996, California voters passed Proposition 215, the Compassionate Use Act, "to ensure that seriously ill (more) SB 129 (Leno) Page 2 of ? Californians have the right to obtain and use marijuana for medical purposes." Following passage of the proposition, several issues arose, including the establishment of a qualified patient's right to use medical marijuana outside the workplace. SB 420 (Vasconcellos, Ch. 875, Stats. 2003), the Medical Marijuana Program Act, was enacted to clearly prohibit the use of medical marijuana by qualified patients on the property or premises of any place of employment or during the hours of employment. (Health & Saf. Code Sec. 11362.785.) In September 2001, Gary Ross, a 45-year old disabled Air Force veteran, was fired after failing an employer-mandated drug test. He was using medical marijuana on his doctor's recommendation outside the workplace and had informed his employer of that fact. He sued for unlawful discrimination based on disability under the Fair Employment and Housing Act (FEHA) and for wrongful termination in violation of public policy. The trial court sustained a demurrer as to both causes of action. The court of appeal affirmed, and upon further appeal, the California Supreme Court ruled that: (1) nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees; and (2) FEHA does not protect the employment rights of persons who test positive for illegal drugs (which includes marijuana under state and federal law). (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 933.) As a result of the Ross ruling, employers and employees alike are uncertain as to what, if any, rights a qualified patient has in maintaining a job that may require periodic marijuana testing. In 2008, AB 2279 (Leno, 2008) attempted to clarify this ambiguity by providing 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. AB 2279 also 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. After passing both houses, AB 2279 was vetoed by Governor Schwarzenegger who asserted that the bill would interfere with employment decisions relating to marijuana use. (See Comment 7.) This bill, which is substantially similar to AB 2279, would clarify the law regarding the employment rights of medical marijuana users, in light of the Supreme Court's decision in SB 129 (Leno) Page 3 of ? Ross v. RagingWire. CHANGES TO EXISTING LAW Existing law , Proposition 215 of 1996, the Compassionate Use Act, provides the individual 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 provides that employment having no specified term may be terminated at the will of either party on notice to the other. (Labor Code Sec. 2922.) Existing law provides that it shall be an unlawful employment practice to discriminate based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. (Fair Employment and Housing Act (FEHA), Gov. Code Sec. 12940 et seq.) FEHA requires employers in their hiring decisions to take into account the feasibility of making reasonable accommodations to a person with a disability or medical condition. (Gov. Code Sec. 12940(a)(2).) This bill would make it unlawful for an employer to discriminate against a person in hiring, termination, or any term of employment or otherwise penalize a person, based on (1) the person's status as a qualified patient or (2) the qualified patient's positive drug test where the medical use of marijuana does not occur on the property or premises of the employer or during the hours of employment. This bill would establish a civil cause of action by a qualified patient who suffered discrimination for damages and injunctive relief, attorney's fees and costs, and other equitable relief to SB 129 (Leno) Page 4 of ? protect the peaceable exercise of the right or rights secured. This bill would not apply when the employer employs a person in a safety-sensitive position, which would include: a position in which medical cannabis-affected performance would clearly endanger the health and safety of others, as defined; a position involving carrying a firearm; or a position involving the operation, maintenance, or dispatch of federal service vehicles. This bill would expressly provide that an employer would not be prohibited from terminating the employment of or taking corrective action against a person who is impaired on the workplace premises or who is impaired during working hours. COMMENT 1. Stated need for the bill The author writes: On January 24, 2008 the California Supreme Court ruled in Ross v. RagingWire Telecommunications that an employee using medical marijuana with a doctor's recommendation as permitted by California law may be fired solely because of their status as a medical cannabis patient. SB 129 would make it unlawful to discriminate in employment practices based on an employee's legal use of medical marijuana outside the work place and not during working hours. In its ruling the California Supreme Court ignored the will of the voters and the legislature by invalidating the rights of over 250,000 patients to be free from discrimination in employment. Most concerning was the fact that Gary Ross was not employed in a safety-sensitive position, did not use medical marijuana at the workplace, and was not under the influence of marijuana at work. In essence, the Court said that Ross could be fired simply because of his status as a patient using doctor recommended medication. In denying Ross certain protections from employment discrimination, the High Court did invite the legislature to clarify its intent with respect to the employment rights of medical cannabis patients. SB 129 will provide the clarification requested by the Court SB 129 (Leno) Page 5 of ? and reverse a decision that puts every medical cannabis patient in jeopardy of losing their job without due cause. By amending the Health and Safety Code to prevent discrimination against patients in hiring, termination, or any term of employment, except in the case of safety-sensitive positions, SB 129 clearly establishes that medical marijuana patients have a right to work. This bill does not require an employer to accommodate marijuana impairment or use in the workplace, and does not require the employer to violate any state or federal laws. The policy of this state should be to encourage gainful employment for those patients who are able to work. In addition to being an issue of basic human fairness, medical marijuana patients who lose their jobs could become an additional burden for state general assistance, MediCal, and other social service programs that are already stressed by chronic funding shortages. SB 129 is a reasonable solution that protects patients, employers, and public safety. 2. The Compassionate Use Act and federal law remain in conflict This bill would provide clarity to the conflict currently existing in California law between California employers and employees regarding the ability of employees to utilize the provisions of the Compassionate Use Act. California voters enacted the Compassionate Use Act in 1996 in order to permit the use of marijuana for medical purposes by persons deemed qualified by their physicians. Marijuana was then, and still is, an illegal drug both under federal and state law, and its use, possession, distribution, cultivation, or sale carries criminal penalties. However, under federal law, possession of marijuana, even by medical users, continues to be a crime: the federal Controlled Substances Act provides that, except as provided, it is unlawful for any person knowingly or intentionally?to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance. (21 U.S.C. Sec. 841(a).) The only exception provided in the Controlled Substances Act for marijuana, a Schedule 1 drug, is for its use in government-controlled research projects. Lawsuits filed by the United States against "medical cannabis dispensaries" have resulted in the complete rebuke of efforts by supporters of medical marijuana use to create a "medical SB 129 (Leno) Page 6 of ? necessity" exception to the Controlled Substances Act's prohibition on manufacturing and distributing marijuana. (United States v. Oakland Cannabis Buyers' Cooperative et al. (2001) 532 U.S. 483, 491-485.) Proponents of this bill, however, contend that federal law does not stand as an obstacle to SB 129, as further discussed in Comment 4b. 3. Ross v. RagingWire Telecommunications, Inc: FEHA does not provide protection to medical marijuana users at work This bill would provide protections for California employees who qualify for medical marijuana under the provisions of the Compassionate Use Act. In Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, the California Supreme Court revisited the ballot arguments proffered by supporters of Proposition 215 (the initiative that enacted the Compassionate Use Act) and declared that "Ýn]othing in the act's text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees." (Id. at p. 932.) Further, the court said, an examination of the ballot arguments did not put defendant employer (and other employers) on notice that employers would thereafter be required under FEHA to accommodate the use of marijuana. (Id.) Gary Ross, the Ross plaintiff, also contended that the Legislature's passage of SB 420 that enacted Health and Safety Code Section 11362.785 evidences the legislative intent of the Compassionate Use Act to require employers to accommodate employees' use of medical marijuana at home. That section provides: Nothing in this article shall 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 and Saf. Code Sec. 11362.785(a).) Answering plaintiff's argument that Health and Safety Code Section 11362.785 at least inferred a requirement of accommodation under FEHA, the court said, "Ýe]ven without SB 129 (Leno) Page 7 of ? inferring a requirement of accommodation, the statute can be given literal effect as negating any expectation that the immunity to criminal liability for possessing marijuana granted in the Compassionate Use Act gives medical users a civilly enforceable right to possess the drug at work or in custody?In any event, ?we do not believe that Health and Safety Code section 11362.785, subdivision (a), can reasonably be understood as adopting such a requirement silently and without debate." (Ross v. RagingWire Telecommunications, Inc., supra, 42 Cal.4th at p. 931.) 4. SB 129 would prohibit discrimination in employment based on status as a medical marijuana user This bill would protect California employees using medical marijuana during non-working hours from discrimination by employers on the basis of the employee's status as a qualifying patient. Under existing law, the Compassionate Use Act does 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 and Saf. Code Sec. 11362.785.) Proponents read this provision as current law prohibiting use of medical marijuana by qualified patients at the workplace or during working hours. Based on the Court's holding in Ross v. RagingWire that Health and Safety Code Section 11362.785 does not infer that an accommodation under FEHA is required, this bill would create a standalone statute prohibiting discrimination in employment based on status as a qualified medical marijuana user or on the basis of a positive marijuana drug test when use of marijuana occurred outside the employment workplace or during non-working hours. a. Discrimination on the basis of status SB 129 would prohibit an employer from discriminating against a person in hiring, termination, or in any term or condition of employment, or otherwise penalizing a person on the basis of that person's status as a qualified patient (medical marijuana user). Gary Ross and other medical marijuana users are protected under the Compassionate Use Act because the voters decided, in SB 129 (Leno) Page 8 of ? passing Proposition 215, to disagree with Congress' assessment that marijuana has a "high potential for abuse," that it lacks any "currently accepted medical use in treatment in the United States," and that it lacks "accepted safety for use?under medical supervision." (Id. at p. 927, citing 21 U.S.C. Sec. 812(b)(1) and Gonzales v. Raich (2005) 545 U.S. 1, 14.) Instead, the voters viewed the possibility of beneficial medical use of marijuana as sufficient basis for exempting from criminal liability under state law patients whose physicians recommend the drug. Proponents contend that it does not make sense to allow a person to use medical marijuana to control pain, for example, and be immune from criminal liability, just to be deprived of the opportunity to work and be self-supporting because the Compassionate Use Act did not mention employment law in the findings and declarations that precede the Act's operative provisions. And since it was the California Supreme Court's view that the follow up legislation, SB 420, did not clearly state legislative intent to protect the employment rights of medical marijuana users, SB 129 is the author's and proponents' response to the call for clarity. b. Discrimination on the basis of positive marijuana drug test Under SB 129, an employer also may not discriminate against a qualified patient who tests positive for marijuana, as long as the medical use of marijuana does not occur on the premises of the place of employment or during the hours of employment. FEHA does not require employers to accommodate the use of illegal drugs. (Ross v. RagingWire, supra, citing Loder v. City of Glendale (1997) 14 Cal.4th 846). In Loder, the California Supreme Court concluded that an employer can require prospective employees to undergo testing for illegal drugs and alcohol and an employer can have access to test results, without violating California's Confidentiality of Medical Information Act. (Civil Code Sec. 56 et seq.) Thus, the Loder court declared that employers may deny employment to persons who test positive for illegal drugs and confirmed in Ross that FEHA was unavailable as a source of protection for the employment rights of medical marijuana users. Proponents contend, however, that except for the federal 1991 Omnibus Transportation Employee Testing Act that requires SB 129 (Leno) Page 9 of ? employers to test all workers who apply for or currently hold "safety sensitive" positions in the transportation industry, there are no state or federal laws that require private businesses to have drug testing programs. Even the 1988 Drug-Free Workplace Act that requires companies with federal contracts in excess of $25,000 to show they have made appropriate efforts to maintain a drug-free workplace does not require drug testing of job applicants or current employees. In fact, a report by the American Civil Liberties Union, "Drug Testing: A Bad Investment" (September 1999) states that while no court has held an employer legally liable for not having a drug testing program, employers have incurred substantial legal costs defending their drug testing programs against workers' claims of wrongful dismissal. Proponents argue that the federal Drug-Free Workplace Act does not place any general obligation on employers to drug test their employees, much less to fire them for a positive drug test for marijuana (citing Parker v. Atlanta Gas Light Co. (S.D. Ga. 1993) 818 F.Supp. 345, 347), but acknowledge that under the Omnibus Transportation Employee Testing Act, regulations of the federal Department of Transportation do require employers to drug test employees in safety sensitive positions and to remove them from such positions if they test positive for the illegal use of drugs. SB 129 would provide that no employer may discriminate against a qualified patient who tests positive for marijuana use, so long as the medical use of marijuana occurs outside the property or premises of work or during non-working hours. In other words, a worker who is a medical marijuana user may use it anyplace but work and anytime but working hours. The only question left would be whether the use of medical marijuana impairs the ability of the employee who is a qualified patient to perform his or her work. That question is resolved below. c. No protection from employment discrimination if employee is impaired because of medical use of marijuana This bill contains a savings clause that states nothing in the section shall prohibit an employer from terminating the employment of, or taking other corrective action against, a person who is impaired on the property or premises of the place of employment or during hours of employment because of the medical use of marijuana. SB 129 (Leno) Page 10 of ? With this provision, the author and proponents are cognizant of the possible effects of marijuana on the performance of an employee, and thus provide employers with the right to exercise their business judgment in taking corrective action when that employee is impaired and cannot function at an acceptable level. It should be noted that the employer's prerogative to drug test for illicit drugs to determine whether an employee is impaired due to drug use is applicable to all employees, not just to those who are impaired due to medical marijuana use, and that the employer's right to exercise business judgment in taking corrective action, including termination, applies to all employees. d. No prohibition against discrimination on the basis of a positive drug test for marijuana where employment is for a safety sensitive position The protection established by SB 129 for a person who tests positive for marijuana where the medical use of the drug occurs outside of the employment premises or during nonworking hours would not be available in "safety sensitive" jobs. As described in the federal Omnibus Transportation Employee Testing Act, these safety sensitive jobs originally were those associated with aviation, railroad, and mass transportation employees. Under this bill, a "safety-sensitive" position means a position in which medical cannabis-affected performance could clearly endanger the health and safety of others, and shall have the following general characteristics: Its duties involve a greater than normal level of trust, responsibility for, or impact on the health and safety of others. Errors in judgment, inattentiveness, or diminished coordination, dexterity, or composure while performing its duties could clearly result in mistakes that would endanger the health and safety of others. An employee in a position of this nature works independently, or performs tasks of a nature that it cannot safely be assumed that mistakes like those described above could be prevented by a supervisor or another employee. SB 129 (Leno) Page 11 of ? A "safety-sensitive" position also includes a position that involves the performance of a "safety-sensitive function," which is specified as described in: (1) Section 655.4 of Title 49 of the Code of Federal Regulations: Operating a revenue service vehicle; Operating a nonrevenue service vehicle, when required to be operated by a holder of a commercial driver's license; Controlling dispatch or movement of a revenue service vehicle; Maintaining (including repairs, overhaul, and rebuilding) a revenue service vehicle or equipment used in revenue service, with exception for specified employers; and Carrying a firearm for security purposes. (2) Section 13951(d) of the Government Code, the following law enforcement personnel: every district attorney, municipal police department, sheriff's department, district attorney's office, county probation department, and social services agency, the Department of Justice, the Department of Corrections, the Department of the Youth Authority, the Department of the California Highway Patrol, the police department of any campus of the University of California, California State University, or community college, and every agency of the State of California expressly authorized by statute to investigate or prosecute law violators. In short, employers hiring for all of the above jobs may not only require drug testing but also refuse to hire or take adverse employment action against a person who tests positive for marijuana, even if the person is a qualified medical marijuana user whose use of medical marijuana occurs any place but the work location or any time but working hours. However, under this bill, an employer would still be prohibited from discriminating against the above "safety sensitive" employees or potential employees on the basis of the person's status as a qualified patient, i.e., a medical marijuana user. 5. Civil action for damages based on discrimination against qualified patient SB 129 (Leno) Page 12 of ? This bill would establish a civil action for a person who suffered discrimination prohibited by the bill, i.e., for a qualified patient (a medical marijuana user), to seek damages, injunctive relief, reasonable attorney's fees and costs, and "any other appropriate equitable relief to protect the peaceable exercise of the right or rights secured." Under the state's employment discrimination laws, an employee may file a complaint of unlawful employment practice with the Department of Fair Employment and Housing (DFEH) or seek relief directly in superior court for wrongful termination or adverse employment action. Filing a complaint with the DFEH has the advantage of a state agency investigating allegations of discriminatory action by the employer and getting the benefit of the state agency's findings before going to court pursuant to a right to sue letter issued by the agency. 6. Opponents' concerns Opponents of this bill raise numerous concerns with this bill. a. Proposition 19 Opponents contend that this bill is similar to Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010 (Act). Opponents argue that "this bill seeks to usurp the voice of the voters. . . . In November 2010, the voters overwhelmingly rejected Proposition 19, which would have provided marijuana users with similar protections in the workplace." The Act would have made marijuana use and possession legal, as specified, "Ýp]rovided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected." (Prop. 19, Sec. 11304(c).) The Act failed to pass, with 53.5 percent of California voters voting against passage and 46.5 percent voting in favor of passage. In response, the author argues that the voters rejected legalizing marijuana for non-medical use, but they did not indicate a change in support for the legal use of medical marijuana in accordance with state law. This bill does not authorize employees to use or possess medical marijuana at the workplace but rather provides an exemption to employee protections under this bill if medical marijuana use occurs on workplace property or during the hours of employment. SB 129 (Leno) Page 13 of ? b. Effect on California employers with federal contracts or grants Opponents also maintain that this bill is in direct conflict with the federal Drug-Free Workplace Act, which they claim "requires federal contractors and grantees to provide a drug free workplace, which includes implementing a policy that prohibits the use or possession of marijuana." The Drug-Free Workplace Act requires employers to notify employees that "the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the grantee's workplace" and that actions may be taken against employees for violating this prohibition. (U.S.C., tit. 41, sec. 702.) In response, the author argues that other states with medical marijuana protections, i.e., Arizona, Maine, and Rhode Island, have not reported losing federal contracts as a result of these employment discrimination protections. As discussed in Comment 6a, this bill does not authorize employees to use or possess medical marijuana at work, and exempts from protection under this bill an employee's use of medical marijuana at the workplace. Federal regulations regarding use and possession of medical marijuana at work still would apply. c. Chilling effect on employers Opponents assert that under this bill "an employer could smell the odor of marijuana and observe the employee's red eyes . . . Ýh]owever, the employer would have to wait to do anything until the employee showed clear signs that the marijuana was affecting or 'impairing' the employee's performance. The subjective nature of the term 'impairment', coupled with the private right of action . . . for any alleged violation, would make employers hesitant to take any action until there was objective evidence of impairment, such as an industrial accident or injury." In response, the author argues that this bill does not require employers to do anything unprecedented. This bill provides an exemption to employee protections if the employee is impaired at work. If marijuana odor and red eyes are observed, the employer should investigate whether the employee's work performance is impaired rather than potentially mistake marijuana odor and red eyes as evidence of the employee's medical marijuana use. The California Hospital Association (CHA) has similar concerns regarding the impairment provision in this bill. "While CHA SB 129 (Leno) Page 14 of ? is sympathetic to the needs of patients who use medical marijuana, hospitals are in a very different role when faced with an applicant who has tested positive for marijuana use. Patients, health care workers and our communities expect hospitals to screen out applicants who may appear for work in an impaired state. Requiring hospitals to hire individuals who have tested positive for marijuana use undermines their ability to ensure the highest quality of care. ? The question of whether an employee is 'impaired' is fact specific and the law requires employers to have probable cause before seeking a drug test." Staff notes that although impairment is one exemption to the protections provided to qualified patient employees under this bill, persons involved in the delivery of health care also may fall within the more general definition of safety-sensitive positions excluded from the scope of SB 129. d. Exemption of safety-sensitive positions Opponents raise concerns that the exemption to exclude medical marijuana users from safety-sensitive positions is too narrow and subjective, rendering the exemption useless to employers. "Specifically, a position is considered 'safety-sensitive' and exempt from the protections of SB 129, only if (1) it requires a 'level of trust and responsibility' higher than normal; (2) a 'clear' risk of health and safety to others is created if there are errors in judgment, inattentiveness, diminished coordination, or composure; and (3) the employee works independently or performs work where mistakes cannot likely be prevented by a supervisor or other employeeÝs]. "As such, the opponents believe the safety-sensitive exemption would lead to differing opinions between employees and employers as to which positions would fall under the safety-sensitive exemption. In response, the author argues that rather than provide a detailed list of professions that would qualify as safety-sensitive positions and inadvertently omit critical positions that should be exempt from the provisions of SB 129, the bill provides a list of considerations to be used in order to determine the safety-sensitive nature of the position. 7. Governor's veto of AB 2279 This bill is substantially similar to the enrolled version of AB 2279 (Leno, 2008). In vetoing AB 2279, the governor stated: This bill attempts to shield qualified medical marijuana SB 129 (Leno) Page 15 of ? patients employed in non safety-sensitive positions from employment discrimination. However, I am concerned with interference in employment decisions as they relate to marijuana use. Employment protection was not a goal of the initiative as passed by voters in 1996. Support : American Academy of Cannabinoid Medicine; California Communities United Institute; California Public Defenders Association; Crusaders for Patients Rights; Drug Policy Alliance; Law Enforcement Against Prohibition; Lawmen Protecting Patients; National Lawyers Guild; National Organization for the Reform of Marijuana Laws; San Francisco AIDS Foundation Opposition : Agricultural Council of California; Apartment Association, California Southern Cities; Associated General Contractors; CalChamber; California Association of Bed & Breakfast Inns; California Association of Health Facilities; California Association of Joint Powers Authority; California Attraction and Parks Association; California Chapter of the American Fence Association; California Farm Bureau Federation; California Fence Contractors' Association; California Grocers Association; California Hospital Association; California Hotel & Lodging Association; California Independent Grocers Association; California Narcotic Officers' Association; California New Car Dealers Association; California Police Chiefs Association; California Retailers Association; Engineering Contractors' Association; Flasher Barricade Association; Marin Builders' Association; Orange County Apartment Association; Western Electrical Contractors Association HISTORY Source : Americans for Safe Access Related Pending Legislation : None Known Prior Legislation : See Background. ************** SB 129 (Leno) Page 16 of ?