CC 2015-11-24_12a Direction_Medical Marijuana;:~.r· , _,,
TO:
FROM:
MEMORANDUM
CITY COUNCIL
TERESA MCCus$oMMUNITY DEVELOPMENT DIRECTOR
STEVEN ANNIBALI, POLICE CHIEF
DAVID HIRSCH, ASSISTANT CITY ATTORNEY
SUBJECT: CONSIDERATION OF DEVELOPMENT OF AN ORDINANCE
RELATING TO MEDICAL MARIJUANA
DATE: NOVEMBER 24, 2015
RECOMMENDATION:
It is recommended that the City Council provide direction regarding the development of
a medical marijuana ordinance.
FINANCIAL IMPACT:
There is no identified direct impact to financial and .personnel resources. Depending on
the direction provided by the City Council, there may be implications regarding staff
resources relating to enforcement of regulations. This item is not identified in the critical
Needs Action Plan.
BACKGROUND:
In 1996, California voters approved Proposition 215, the Compassionate Use Act
(CUA), which decriminalized marijuana use for medical purposes. In 2003, the Medical
Marijuana Program Act (MMP) clarified the CUA -which includes issuing identification
cards· for qualified patients and allowing patients and their primary caregivers to
collectively or cooperatively cultivate medical marijuana. Neither law regulated or
restricted local zoning requirements for medical marijuana dispensaries. However,
uncertainty remained as federal law continued to categorize marijuana as a controlled
substance. On May 27, 2008, the City Council adopted Ordinance 599 that prohibited
the establishment of medical marijuana dispensaries in the City. On October 9, 2012,
the City Council adopted Ordinance 647, relating to the definition of medical marijuana
dispensaries to include mobile dispensaries. In 2013, the California Supreme Court
unanimously ruled that local governments have the power to ban medical marijuana
dispensaries (City of Riverside v. Inland Empire Patients Health & Wellness Center,
Inc.). Also in 2013 the State Court of Appeals decided a case that held that cities have
authority to prohibit cultivation of all medical marijuana city-wide (Maral v. City of Live
Oak ). In both cases, the courts similarly found that the Proposition 215 and the MMP
do not preempt a city's regulatory authority to prohibit all cultivation in the city, if the city
so chooses.
Item 12.a. - Page 1
CITY COUNCIL
CONSIDERATION OF DEVELOPMENT OF AN ORDINANCE RELATING TO MEDICAL
MARIJUANA
PAGE2
On October 9, 2015, (3ov. Jerry:Brown ·signed a c9rnprehensive· pack~ge-:of :bills to
establish a xegu-latory .structure 'for .medical .marijuana. Together, AB 266, AB-243, and
SB :643-compl"ise -the Medical ·Marijuana Hegulation & -Safety .Act , (MMRSA): For a
summary· of each bill please refer to Attachment 1.
ANALYSIS OF ISSUES:
MMRSA expressly preserves the authority of cities with regard to their zoning powers
and local actions taken in accordance with the police power under the State
Constitution. MMRSA includes extensive provisions relating to cultivation and contains
language that provides that if 1a city does not have land use regulations or ordinances
regulating or prohibiting the cultivation of marijuana by March 1, 2016, either expressly
or otherwise under the principles of permissive zoning, then the State will become the
sole licensing authority. Permissive zoning prohibits uses for which it ,does not
expressly allow by a list of permitted uses. The City may rely on the principles of
permissive zoning and find that cultivation and all commercial medical marijuana uses
are prohibited as they are not listed as a permitted use, however, since the City permits
backyard gardening activities as an accessory use without distinguishing between what
is grown, this approach may not be a clear way to prohibit cultivation of marijuana.
Accordingly, to_ ensure clarity and consistency for purposes of enforcement, and to
ensure local control in consideration of evolving legislation, staff is recommending that if
the City Council wants to address cultivation, the City enact an ordinance to expressly
make clear that cultivation and all commercial medical marijuana uses are prohibited in
all zones throughout the City. The MMRSA also contains language that requires
delivery services to be expressly prohibited by local ordinance, if the City wishes to do
so. Adoption of an ordinance is strongly recommended as opposed to relying on
permissive zoning, which ultimately may lead to ambiguities in interpretation over time.
It should be noted that concerns have recently been expressed by residents regarding
medical marijuana cultivation in the City by a group growing medical marijuana
"collectively" (reference Health and Safety Code Sections 11362.5 et. seq.) The
concerns expressed by residents include the potential public nuisances caused by
medical marijuana cultivation, as well as safety concerns in their neighborhoods. While
some cities have addressed the issue of cultivation by permitting very limited growing of
marijuana, the Police Department is recommending that the ordinance provide for a
complete prohibition. In this respect, enforcement issues would be reduced with the
enactment of an ordinance that expressly made clear that cultivation and all commercial
medical marijuana uses are prohibited.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
1. Provide direction to staff to prepare an ordinance that cultivation, delivery and all
commercial medical marijuana uses are prohibited.
Item 12.a. - Page 2
CITY COUNCIL
CONSIDERATION OF DEVELOPMENT OF AN ORDINANCE RELATING TO MEDICAL
MARIJUANA
PAGE3
2. Direct staff to prep·are an ordinance that provides limited uses and/or cultivation
of medical marijuana.
3. Provide other direction to staff.
ADVANTAGES:
Direction to develop an ordinance to expressly make clear that all cultivation and
commercial medical marijuana uses are prohibited in all zones throughout the City will
preserve the City's local control and avoid ambiguity in enforcement matters. In
addition, under the new statutes an express prohibition on delivery is necessary if such
activities are to be prohibited.
DISADVANTAGES:
Development of an ordinance to expressly prohibit cultivation, delivery and all
commercial medical marijuana uses will impact staff time and resources.
ENVIRONMENTAL REVIEW:
None required.
PUBLIC NOTIFICATION:
The Agenda was posted in front of G_ity Hall on Thursday, November 19, 2015. The
Agenda and report were posted on the City's website on Friday, November 20, 2015.
Attachments:
1. Summary of AB. 243, AB 266. and SB ·643, _passed by Governor Brown on
October 9, 2015 to establish a regulatory structure for medical marijuana
(proyided by the l.:.eagµ~ of California Cities).
Item 12.a. - Page 3
ATTACHMENT 1
Summary of bills passed by Governor Brown on October 9, 2015 to establish a
regulator}r structure for-medical marijuana (provided by the League-of California
Cities):
AB 243 (Wood) Medical Marijuana
--
• Places-the Department of Food and Agriculture ,(DFA) in charge -of licensing and-regulation of
indoor and outdoor cultivation site:;. Creates a Medical Cannabis Cultivation-_Prog'ram within the
department.
--
• Mandates the Department of Pesticide Regulation (DPR) to develop standards for pesticides in
marijuana cul~ivation, and maximum tolerances for pesticides and other foreign object residue. _
• Mandates -the Department of Public Health (DPH) to develop standards fc;>r production and
labelling of all edible medical cannabis products. ·
• Assigns' joint responsibility to DFA, Departmen:t of Fish and Wildlife (DFW), and the State Water
-Res~urce~ C~_ntrol Board (SWRCB) to prevent illegal water diversion associc;ited with marijuana
cultivation from adversely affec~ing California fish population.
• Specifies that "DPR, in consultation with SWRCB, is to develop _regulations-for application of
_pesticides in all-culti_vation. _
-' • Specifi~s various types of cultivation-licenses'.
• Directs the-multi-ag~ncy task force headed by DFW and SWRCB to expand its -existing
--_enforcement efforts to a-statewide level to reduce adverse impacts of marijuana cultivation,
' '
i_ncluding-environmental impacts-such as illegal dis~harge _ i_nto waterways and _poisoning_ of
· marine life and habitats.
AB 266 (Bonta, Cooley, Jones-Sawyer, Lackey, Wood) Medical Marijuana
• _Protects local control as it establishes a,statewide regulatory scheme, headed by the_ Bureau of
Medical Marijuana Regulation-(BMMR) within the Depart_ment of Consumer Affairs (DCA).
•. -Provides for dual' licensing: state will issue licenses, and local governme_nts wil_I issue permits or
licenses to operate-marijuana businesses, according to local ordinances. State licenses will be
issued beginning in January 2018.
• Revocation of a local license or permit will unilaterally terminate t~e ability of the business to
operate in that jurisdktion.
Item 12.a. - Page 4
• Expressly protects local licensing practices, zoning ordinances, and local constitutional police
power.
• Caps total cultivation for a single licensee at four acres statewide, subject to local ordinances.
• Requires local jurisdictions that wish to prevent delivery services from operating within their
borders to enact an ordinance affirmatively banning this activity. No specific operative date for
the ban is specified.
• Specifies that DCA will issue the following licenses: Dispensary, Distributor, Transport, and
Special Dispensary Status for licensees who have a maximum of three dispensaries. Specifies
various sub-categories of licensees (indoor cultivation, outdoor cultivation, etc.)
• Limits cross-licensing to holding a single state license in up to two separate license categories, as
specified. Prohibits medical marijuana licenseesJrom also holding licenses to sell alcohol.
• {jrandfathers in vertically integrated businesses (i.e. businesses that operate and control their
own cultivation, manufacturing, and dispensing operations) if a local ordinance allowed or
required such a business model and was ena~ted on or before July 1, 2015. Also requires such
~usin~sses to have operated, in compliance with local ordinances, and to have been engaged in
all the covered activities on July 1, 2015.
• Requires establishment of uniform health and safety standards, testing standards, and security
requirements at dispensaries antj during transport of the product.
e Specifies a standard for certification of testing labs, and specified minimum testing
requirements. Prohibits testirig lab operators from being licensees in any other category, and
from holding a financial or ownership interest in any other category of licensed business.
• Includes a labor peace agreement under which unions agree not to engage in strikes, work
stoppages, etc. and employers agree to provide unions reasonable access to employees for the
purpose of organizing them. Specifies that such an agreement does not mandate a particular
method of election.
• Provides for civil penalties for·unlicensed activity, and specifies that applicable criminal penalties
under existing law will continue to apply.
• Specifies that patients and primary caregivers are exempt from the state licensing requirement, . .
and provides that their information is not to be disclosed and is confidential under the California
Public Records Act.'
·• Phases out the existing model of marijuana cooperatives and collectives one year after DCA
announces that state licensing has begun.
• Preserves enforcement authority of the city of Los Angeles with respect to Measure D, the local
regulatory structure for medical marijuana within the city limits.
SB 643 (McGuire) Medical Marijuana
• Directs the California Medical .Board to prioritize investigation of excessive recommendations by
physicians.
Item 12.a. - Page 5
o , Imposes· fines ($5000.00) against physicians_ for violating prohibition against having a financial
--
interest in a marijuana b':Jsiness.
' '
• -Recqmrnenqation for cannabis without a prior examination constitutes unprofessional conduct.
• -Impose~ restrictio.ns ~m adve~ising for physician recommendations.
• Places DFA -in charge of cultivation regulations -and licensing, and requires a track and trace
_program._
~ Codifies dual Hcen~ing-(state· license ,an9 local license or_ perf!lit), and-itemizes disqualifying
· felonies for state licensure.
• -Places~ DPR Jn ·charge of-pesticide regulation; DPH-in charge of production anti labelling of
. -edibles.· -.
-,'
• , Upholds local-power to levy fees and taxes.'
i i ' ' ' '
Item 12.a. - Page 6