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CC 2016-03-08_11a Development of Revised Medical Marijuana Ordinance MEMORANDUM TO: CITY COUNCIL FROM: TERESA MCCLISH, COMMUNITY DEVELOPMENT DIRECTOR STEVEN ANNIBALI, POLICE CHIEF DAVID HIRSCH, ASSISTANT CITY ATTORNEY SUBJECT: CONSIDERATION OF DEVELOPMENT OF A REVISED ORDINANCE RELATING TO MEDICAL MARIJUANA DATE: MARCH 8, 2016 RECOMMENDATION: It is recommended that the City Council provide direction regarding the development of a revised 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: On October 9, 2015, Gov. Jerry Brown signed a comprehensive package of bills to establish a regulatory structure for medical marijuana. Together, AB 266, AB 243, and SB 643 comprise the Medical Marijuana Regulation & Safety Act (MMRSA). On November 24, 2015, the City Council considered implications of the MMRSA regarding local control and directed staff to prepare an ordinance prohibiting cultivation, delivery and all commercial medical marijuana uses. On December 1, 2015 the Planning Commission held a public hearing and on a 3-2 vote, adopted Resolution No. 15-2241 recommending that the City Council adopt an ordinance adding Chapter 16.62 to Title 16 of the Arroyo Grande Municipal Code relating to medical marijuana dispensaries, cooperatives and collectives, cultivation of medical marijuana, and deliveries of medical marijuana or medical cannabis products. On January 12, 2016 and January 24, 2016 respectively, the Council introduced and adopted the proposed ordinance acknowledging that alternatives may be considered in the future but that the ordinance provided an opportunity to maintain local control given the language in the legislation pertaining to a March 1, 2016 effective deadline. Item 11.a. - Page 1 CITY COUNCIL CONSIDERATION OF DEVELOPMENT OF A REVISED ORDINANCE RELATING TO MEDICAL MARIJUANA PAGE 2 ANALYSIS OF ISSUES: To ensure clarity and consistency for purposes of enforcement, and to ensure local control in consideration of evolving legislation, the ordinance expressly made clear that cultivation and all medical marijuana dispensaries, cooperatives and collectives are prohibited on all parcels in the City. Enforcement of the Ordinance is on a complaint basis through the Neighborhood Services Division. In addition, the MMRSA also contains language that provides that in order to prohibit delivery of medical marijuana it must be explicitly prohibited by local ordinance. Since the City had previously prohibited mobile medical marijuana dispensaries, prohibition of deliveries was also included in the ordinance in order to satisfy the requirements of the new statute. The ordinance also provided an opportunity to clean up definitions related to dispensaries that would include cooperatives and collectives, consistent with State law. Enforcement provisions are broadly worded to address recent court rulings, while still permitting use of other enforcement mechanisms, including nuisance abatement procedures. The City may pursue misdemeanor penalties for situations in which persons other than qualified patients or caregivers cultivate or deliver medical marijuana. Concerns regarding the severity of the ordinance continue to be raised by som e residents who advocate for medical marijuana and by delivery entities outside the City that wish to conduct delivery services here to address a stated need. Alternatively, concerns had been previously 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 included the public nuisances caused by medical marijuana cultivation and deliveries, and associated safety concerns in their neighborhoods. As such there are four criteria that have been developed to help evaluate potential revisions to the adopted ordinance: 1. Provide some opportunity for residents to legally obtain or grow medical cannabis in the City limits for the purposes of medical application; 2. Maintain local control instead of state regulation over the long term; 3. Ensure regulations do not impact enforcement capabilities; 4. Ensure regulations are unambiguous and legally defensible. Four options to revise the ordinance have been identified, and each has been evaluated against the above criteria. ALTERNATIVES: Option 1: Do not modify existing ordinance and maintain a total ban on medical marijuana within City limits. This option would allow the City to maintain clear and enforceable regulations and local control while the state rules continue to evolve through the political and legal landscape. The November ballot may include a state initiative regarding recreational use and the Item 11.a. - Page 2 CITY COUNCIL CONSIDERATION OF DEVELOPMENT OF A REVISED ORDINANCE RELATING TO MEDICAL MARIJUANA PAGE 3 courts are continually ruling on cases involving medical marijuana. However, this option does not allow members of the community to legally obtain medical marijuana inside City limits. It should be noted that this option does not prevent members of the community from legally obtaining medical marijuana outside the City limits, much like those who choose to purchase pharmaceuticals at Costco or other entities outside the City. This option also allows the City to more effectively address neighborhood nuisance issues related to noise, odor, lights, and traffic issues associated with collective and/or cooperative operations. Option 2: Permit limited cultivation of medical. Some cities have addressed the issue of cultivation by permitting very limited growing of marijuana. A tentative draft ordinance has been developed for this option that provides for a limitation to a 50 sq. ft. area with a 10 ft. height limit within a single family residence, and is attached for reference. The tentative draft ordinance for this alternative has been crafted to include other restrictions in an attempt to avoid ambiguity and problems with potential neighborhood nuisance issues. However, by allowing personal growing operations the Police Department would expect enforcement issues to increase with residents who may continue to exceed the limitations of the ordinance. For example, Cities that have restricted plants to a limited area without height restrictions have had enforcement problems arise from multi-story growing operations. The 50 sq. ft. limitation is recommended, however, since such an approach is consistent with restrictions from a land use and zoning perspective. While a limit on the number of plants that may be grown might also be considered, the City Attorney’s office has indicated there may be an issue with such an approach since subdivision (a) of Health and Safety Code Section 11362.77 permits qualified patients to maintain six mature or twelve immature plants. While this provision was actually held to be invalid by the State Supreme Court in a case involving a criminal prosecution, the Court expressly declined to hold it invalid for other purposes (People v Kelly 47 Cal.4th 1008 (2010)). Subsection (c) of Section 11362.77 provides that “Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).” Based on this language, the concern is that a medical marijuana advocacy group could take the view that the ability of a City to restrict the number of plants is limited, and challenge any such limitation. If the Council wishes to revise the ordinance, the option contained in the tentative draft ordinance is recommended. The revised ordinance would require Planning Commission review and recommendation prior to Council consideration. Option 3: Revise ordinance to potentially allow deliveries of medical marijuana. Deliveries are not expressly prohibited by some jurisdictions and as such, may be interpreted to mean that they are allowed. Delivery services currently operate in a legal gray area, and through the fiction that they are cooperatives or collectives and are just delivering to members/participants in the cooperative or collective. In this respect the marijuana can only be delivered to a qualified patient. Under the new MMRSA, Item 11.a. - Page 3 CITY COUNCIL CONSIDERATION OF DEVELOPMENT OF A REVISED ORDINANCE RELATING TO MEDICAL MARIJUANA PAGE 4 however, at some point the concept of medical marijuana collectives and cooperatives will eventually be eliminated from the law, when the new laws are implemented by the State. This isn’t expected until approximately January, 2018. Until that time delivery services will continue to operate as they currently do. When the new Bureau of Medical Marijuana begins to issue licenses, delivery would be permitted by such licensed businesses unless prohibited by the City. It is also anticipated that the State will issue regulations to implement the MMSRA, but at this point in time it is unclear how such regulations will address the issue of delivery. Allowing unregulated deliveries within the City raise concerns of increased neighborhood nuisance issues. One option that may be explored if the Council wishes to allow limited deliveries, is to regulate a small number of delivery services through a permit system not unlike taxi services. In this respect, applicants may be screened and regulations applied and more easily enforced. However, this would take a substantial effort to develop and it would not address the problem and inherent ambiguity in the legal status of delivery services. Moreover, such a regulatory scheme may be breaking new ground, as far as approaches being used by cities to regulate marijuana. While staff is continuing to research this issue, so far only one city , Goleta, has been identified that has adopted a medical marijuana delivery regulatory scheme, and that ordinance was just adopted in January. We also are aware of another city, Oceanside, that is currently considering adopting regulations pertaining to delivery. Given the aggressive approach taken by medical marijuana advocacy groups, such innovative approaches could subject cities to new legal challenges. If Council wished to modify the current ordinance to allow for delivery, a revised ordinance would need to be prepared and would require Planning Commission review and recommendation prior to Council consideration. Option 4: Allow a medical marijuana dispensary. A “brick and mortar” dispensary would allow residents and non -residents to legally obtain medical marijuana within the City limits. Although many such operations are located in urbanized areas of the state, there are few in the region of the Central Coast and none within the County. . Some dispensaries have been opened and then shut down due to enforcement issues. If allowed by ordinance, this option would maintain local control and be legally defensible; however, it is likely to create incompatibility issues depending on its location which may be further exasperated since it would be the only operation in the County, which may create some unintended consequences. If Council wished to modify the current ordinance to allow for dispensaries, a revised ordinance would need to be prepared and would require Planning Commission review and recommendation prior to Council consideration. Item 11.a. - Page 4 CITY COUNCIL CONSIDERATION OF DEVELOPMENT OF A REVISED ORDINANCE RELATING TO MEDICAL MARIJUANA PAGE 5 ADVANTAGES: Direction to develop a revised ordinance would provide some opportunity for residents to legally obtain or grow medical cannabis in the City limits for the purposes of medical application. DISADVANTAGES: Adoption of a revised ordinance may impact the City’s local control and create ambiguity in regulations and increase enforcement matters. ENVIRONMENTAL REVIEW: None required. PUBLIC NOTIFICATION: The Agenda was posted in front of City Hall on Thursday, March 3, 2016. The Agenda and report were posted on the City’s website on Friday, March 4, 2016. Attachments: 1. Draft revised ordinance amending Chapter 16.62 to Title 16 of the Arroyo Grande Municipal Code allowing limited cultivation of medical marijuana Item 11.a. - Page 5 ATTACHMENT 1 – Alternative DRAFT ordinance for limited cultivation ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE AMENDING CHAPTER 16.62 TO TITLE 16 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO MEDICAL MARIJUANA DISPENSARIES, COOPERATIVES AND COLLECTIVES, CULTIVATION OF MEDICAL MARIJUANA, AND DELIVERIES OF MEDICAL MARIJUANA OR MEDICAL CANNIBIS PRODUCTS WHEREAS, in 1996, the voters of the State of California approved Proposition 215, "The Compassionate Use Act of 1996" relating to medical marijuana, and in 2003, the Legislature enacted Senate Bill 420, also known as the Medical Marijuana Program (MMP). Neither Proposition 215 nor the MMP confer on qualified patients who use medical marijuana and their caregivers the unfettered right to cultivate or dispense marijuana anywhere they choose. Nor do they require or impose an affirmative duty or mandate upon local governments, such as the City of Arroyo Grande, to allow, authorize or sanction marijuana cultivation or the operation and establishment of facilities dispensing medical marijuana within its jurisdiction; and WHEREAS, in the case City of Riverside v. lnland Empire Patients Health & Wellness Center, lnc., 56 Cal.4th 729 (2013), the California Supreme Court ruled unanimously that Proposition 215 and the MMP do not preempt local ordinances that completely and permanently ban medical marijuana dispensaries. ln reaching this conclusion, the Supreme Court recognized that the local police power, which derives from California Constitution, article Xl, Section 7, "includes broad authority to determine, for purposes of public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders...." 56 Cal.4th at 738; and WHEREAS, the City Council of the City of Arroyo Grande has previously adopted Chapter 16.62 of Title 16 of the Arroyo Grande Municipal Code relating to medical marijuana dispensaries, cooperatives and collectives, cultivation of medical marijuana, and deliveries of medical marijuana or medical cannabis products; and WHEREAS, concerns have previously 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; and WHEREAS, on November 26, 2013 the Court of Appeal decided and published Maral v. City of Live Oak, 221 Cal.App.4th 975 (2013), and on March 26, 2014 the State Supreme Court denied review of that decision. Maral held that cities have authority to prohibit cultivation of all medical marijuana city-wide. Like the Supreme Court’s decision in the City of Riverside case, the Maral court 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; and WHEREAS, the City Council desires to amend Chapter 16.62 of the Arroyo Grande Municipal Code to permit limited cultivation of medical marijuana as further set forth in this ordinance; and WHEREAS, the City Council of the City of Arroyo Grande hereby makes the following findings regarding the unregulated cultivation of medical marijuana within the boundaries of the City: A. The unregulated cultivation of medical marijuana can adversely affect the health, safety and well-being of the City and its residents. Unregulated medical marijuana cultivation increases the risk of criminal activity, degradation of the natural environment, excessive use of Item 11.a. - Page 6 ORDINANCE NO. PAGE 2 electricity which may overload standard electrical systems, and damage to buildings in which cultivation occurs, including improper and dangerous electrical alterations and use, increased risk of fire and fire-related hazards, inadequate ventilation, increased occurrences of home- invasion robberies and similar crimes. Medical marijuana cultivation also creates increased nuisance impacts to neighboring properties because of the strong, malodorous, and potentially noxious odors which come from the plants. Further, the indoor and outdoor cultivation of medical marijuana in or near residential zones increases the risk of such activity and intrudes upon residential uses. Accordingly, except for limited indoor cultivation as provided in this ordinance, it is the intent of the City County to prohibit the cultivation of medical marijuana in the City of Arroyo Grande. B. Marijuana plants grown outdoors, as they begin to flower and for a period of two (2) months or more during the growing season, produce an extremely strong odor that is offensive to many people and detectable far beyond property boundaries. This strong smell may create an attractive nuisance, alerting persons to the location of the marijuana plants, thereby creating a risk of burglary, robbery, armed robbery, assault, attempted murder, and murder. C. Fertilizers and pesticides, both legal and illegal, used when marijuana is grown outdoors may unreasonably increase the concentration of such chemicals in storm water runoff thereby impacting local creeks, streams and rivers. Such pollution may negatively affect water quality for downstream users, harm ecosystems, and impact threatened or endangered species. D. Water for marijuana grown outdoors may be illegally diverted from local creeks, streams, and rivers, thereby unreasonably depriving downstream users of beneficial water sources. Such diversions may also impact water supply, harm ecosystems, and negatively affect threatened or endangered species; and WHEREAS, marijuana remains an illegal substance under the federal Controlled Substances Act (21 U.S.C. Section 801 et seq.) and it is classified as a Schedule I drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, transport, or possess with intent to manufacture, distribute or dispense marijuana. The federal Controlled Substances Act does not exempt the cultivation, manufacture, distribution, dispensation, transportation, or possession of marijuana for medical purposes; and WHEREAS, three bills have recently been enacted by the State of California Legislature and were signed by the Governor on October 9, 2015, that comprise the Medical Marijuana Regulation and Safety Act (MMRSA): AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes of 2015); and SB 643 (Chapter 719, Statures of 2015); and WHEREAS, the 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; and WHEREAS, the MMRSA contains language that requires delivery services to be expressly prohibited by local ordinance, if the City wishes to do so. The MMRSA is silent as to whether the City must prohibit other types of commercial medical marijuana activities; and WHEREAS, while the City Council believes that cultivation and all commercial medical marijuana uses are prohibited under the City’s permissive zoning regulations, it desires to enact Item 11.a. - Page 7 ORDINANCE NO. PAGE 3 this ordinance to expressly make clear that all such uses are prohibited in all zones throughout the City, except for limited indoor cultivation as provided herein; and WHEREAS, the Planning Commission held a duly noticed public hearing on _______, 2016 at which time it considered all evidence presented, both written and oral and at the end of the hearing voted to adopt a resolution recommending that the City Council adopt this Ordinance; and WHEREAS, the City Council held a duly noticed public hearing on this Ordinance on _____, 2016, at which time it considered all evidence presented, both written and oral. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES ORDAIN AS FOLLOWS: SECTION 1. The above recitals and findings are true and correct and are incorporated herein by this reference. SECTION 2. Chapter 16.62 of Title 16 of the Arroyo Grande Municipal Code is hereby amended in its entirety to read as follows: 16.62.010 Purpose and findings. A. It is the purpose and intent of this chapter to prohibit medical marijuana dispensaries, cooperatives and collectives, including mobile dispensaries, as well as prohibit delivery and limit cultivation of medical marijuana pursuant to the City of Arroyo Grande’s authority under Section 7 of Article XI of the California Constitution, in order to promote the health, safety, and general welfare of the residents and businesses within the City of Arroyo Grande and prevent adverse impacts which such activities may have on nearby properties and residents, as recognized by the Courts (reference City of Riverside v. lnland Empire Patients Health & Wellness Center., lnc., 56 Cal.4th 729 (2013) and Maral v. City of Live Oak, 221 Cal.App.4th 975 (2013)) and as provided in the Medical Marijuana Regulation and Safety Act (AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes of 2015); and SB 643 (Chapter 719, Statures of 2015)). B. Pursuant to the City of Arroyo Grande’s police powers authorized in Article XI, Section 7 of the California Constitution, the City has the power to regulate permissible land uses within its boundaries and to enact regulations for the preservation of public health, safety and welfare of its residents and community. Further, pursuant to Government Code Sections 38771 through 38775, municipalities also have the power through the City Council to declare actions and activities that constitute a public nuisance. C. The City Council finds that Proposition 215, "The Compassionate Use Act of 1996", Senate Bill 420 enacted in 2003, also known as the Medical Marijuana Program and the Medical Marijuana Regulation and Safety Act (AB 243 (Chapter 688, Statutes of 2015); AB 266 (Chapter 689, Statutes of 2015); and SB 643 (Chapter 719, Statures of 2015) do not preempt the City’s exercise of its traditional police powers in enacting land use regulations, such as this chapter, for preservation of public health, safety and welfare, by prohibiting medical marijuana dispensaries, cooperatives and collectives, and deliveries of medical marijuana, and regulating and limiting the cultivation of marijuana within the City. 16.62.020 Application. The provisions of this chapter shall apply generally to all property within the boundaries of the City wherein any of the conditions herein specified are found to exist. However, nothing in this Item 11.a. - Page 8 ORDINANCE NO. PAGE 4 chapter is intended, nor shall it be construed, to burden any defense to criminal prosecution under the CUA or MMP. 16.62.030 Administration. The Chief of Police, or the Chief’s designee and/or the Director of Community Development, or the Director’s designee, are charged with the responsibility of administering this chapter and exercising the authority conferred thereby. 16.62.040 Definitions. As used herein, the following definitions shall govern the construction of this chapter: “Collective” or “cooperative” means any association, cooperative, affiliation, group, or collective of persons organized or associated to cultivate, store and/or dispense marijuana for medical purposes pursuant to the CUA or MMP and as provided in Health and Safety Code Section 11362.775. “Cultivation” shall have the meaning as set forth in Business and Professions Code Section19300.5 (l) and also means the planting, growing, harvesting, drying, processing or storage of one (1) or more marijuana plants or any part thereof in any location, indoor or outdoor, including a fully enclosed and secure building. “Delivery” shall have the meaning as set forth in Business and Professions Code Section19300.5 (m). “Dispensary” shall have the meaning as set forth in Business and Professions Code Section19300.5(n) and also means any facility, location, establishment or similar entity that cultivates, distributes, delivers, supplies or processes marijuana for medical purposes relating to a qualified patient or primary caregiver, pursuant to the CUA and MMP in accordance with Health and Safety Code Section 11362.5 et seq. A dispensary shall include a dispensing collective or cooperative and shall include a mobile dispensary and delivery services. “Marijuana” means all parts of the plant genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin, and includes “cannabis”, “medical cannabis”, “cannabis product” and “medical cannabis product” as defined in Business and Professions Code Sections 19300.5(f) and (ag). “Primary Caregiver”. This shall have the meaning set forth in Health and Safety Code Section 11362.7(d). “Qualified Patient”. This shall have the meaning set forth in Health and Safety Code Section 11362.7(f). 16.62.050 Cultivation. A. Except for limited indoor cultivation as provided in subsection C herein, no person or persons owning, leasing, occupying, or having charge or possession of any parcel in the City of Arroyo, including primary caregivers and qualified patients, collectives, cooperatives or dispensaries, shall allow such parcel to be used for the cultivation of marijuana. Cultivation of marijuana in violation of this chapter within the City of Arroyo Grande for any purpose is prohibited, and is expressly declared to be a public nuisance. B. The prohibition contained in this section is intended to constitute an express prohibition on cultivation as it relates to the provisions of Health and Safety Code Section 11362.777(b)(3), which provides that a person or entity shall not submit an application for a state license to cultivate marijuana under the Department of Food and Agriculture’s Medical Cannabis Cultivation Program if the proposed cultivation of marijuana will violate the provisions of a local ordinance or regulation, or if medical marijuana is prohibited by the city. Item 11.a. - Page 9 ORDINANCE NO. PAGE 5 C. The limited indoor cultivation of marijuana in the City of Arroyo Grande is permitted subject to the following restrictions and standards: 1. The marijuana is cultivated by a qualified patient for his or her personal use. 2. The marijuana is cultivated inside a detached single family dwelling on property where the qualified patient resides on a full-time basis. 3. No more than fifty (50) contiguous square feet of the interior of the dwelling, shall be devoted to the cultivation of medical marijuana. The medical marijuana cultivation area shall not exceed 10 feet in height. These restrictions apply regardless of how many qualified patients are residing on the property. 4. The area used for cultivation complies with California Building, Electrical and Fire Codes as adopted by City of Arroyo Grande. 5. The marijuana cultivation is concealed so that it is not visible from the exterior of the property, the public right-of-way, and/or neighboring properties. 6. All medical marijuana cultivated pursuant to this section shall be for the personal use only of a qualified patient residing on the property and may not be distributed to any other person, collective or cooperative. The qualified patient shall not participate in medical marijuana cultivation in any other residential location within the City of Arroyo Grande. 7. The lighting for the cultivation shall not exceed 1200 watts. The use of flammable or combustible products, including but not limited to, propane and butane for cultivation and processing is prohibited. 8. The cultivation of marijuana shall not take place in a kitchen, bathroom or occupied bedroom of the dwelling. 9. The marijuana cultivation shall not adversely affect the health or safety of the occupants of other property in the vicinity by creating dust, glare, heat, noise, noxious gasses, odor, smoke, traffic, vibration or other impacts and shall not be maintained in a manner so as to constitute a hazard due to use or storage of materials, processes, products or wastes. 10. Nothing in this subsection is intended, nor shall it be construed, to preclude any landlord from limiting or prohibiting medical marijuana cultivation by tenants. 16.62.060 Medical Marijuana Collectives, Cooperatives and Dispensaries Prohibited A. Medical marijuana collectives, cooperatives and dispensaries, including mobile dispensaries, are not permitted in or upon any premises in the City of Arroyo Grande. B. A medical marijuana dispensary shall not include the following uses, so long as such uses comply with this code, Health and Safety Code Section 11362.5 et seq., and other applicable law: 1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code. 2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code. Item 11.a. - Page 10 ORDINANCE NO. PAGE 6 3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code. 4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code. 5. A hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code. 16.62.070 Deliveries Prohibited It shall be unlawful for any person to deliver medical marijuana or medical cannabis products or engage in activities that constitute delivery of medical marijuana or medical cannabis products anywhere within the boundaries of the City of Arroyo Grande. This prohibition is intended to constitute an express prohibition on deliveries, as provided for in Business and Professions Code Section 19340. 16.62.080 Violations and penalties. A. Any person that violates any provision of this chapter shall be guilty of a separate offense for each and every day during any portion of which any such person commits, continues, licenses, or causes a violation thereof, and shall be punished accordingly. B. A violation of any provision of this chapter shall be subject to any enforcement remedies available under the law and/or the Arroyo Grande Municipal Code. In addition, the City may enforce a violation of this chapter by means of civil enforcement through a restraining order, a preliminary or permanent injunction, nuisance abatement procedures, or by any other means authorized by law. Notwithstanding any other provision of this Code, no conduct which is protected from criminal prosecution pursuant to the Compassionate Use Act (Health and Safety Code Sections 11362.5) and/or the Medical Marijuana Program Act (Health and Safety Code Sections 11362.7-11362.83) shall be made subject to criminal prosecution by this Code. SECTION 4. This ordinance is exempt from CEQA pursuant to CEQA Guidelines Section15061(b)(3) which is the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment and CEQA does not apply where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. SECTION 5. A summary of this Ordinance shall be published in a newspaper published and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted in the office of the City Clerk. Within fifteen (15) days after adoption of the Ordinance, the summary with the names of those City Council members voting for and against the Ordinance shall be published again, and the City Clerk shall post a certified copy of the full text of such adopted Ordinance. This Ordinance shall take effect and be in full force and effect thirty (30) days after its passage. SECTION 6. This Ordinance shall take effect and be in full force and effect thirty (30) days after its passage. SECTION 7. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Item 11.a. - Page 11 ORDINANCE NO. PAGE 7 Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. On motion by Council Member ______, seconded by Council Member _______, and by the following roll call vote to wit: AYES: NOES: ABSENT: the foregoing Ordinance was adopted this ____ day of _______, 2016. Item 11.a. - Page 12 ORDINANCE NO. PAGE 8 ___________________________________ JIM HILL, MAYOR ATTEST: ___________________________________ KELLY WETMORE, CITY CLERK APPROVED AS TO CONTENT: ________________________________ DIANNE THOMPSON, CITY MANAGER APPROVED AS TO FORM: ___________________________________ HEATHER K. WHITHAM, CITY ATTORNEY Item 11.a. - Page 13 THIS PAGE INTENTIONALLY LEFT BLANK Item 11.a. - Page 14