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CC 2016-06-14_10b MMDeliveryPresentation Item 10.b. DEVELOPMENT CODE AMENDMENT CASE NO. 16-002 AMENDING TITLES 5 AND 16 OF THE ARROYO GRANDE MUNICIPAL CODE RELATING TO MEDICAL MARIJUANA CULTIVATION AND MEDICAL MARIJUANA DELIVERY SERVICES City Council Meeting June 14, 2016 1 Background October 2015, Gov. Brown signed AB266, AB 243 and SB 643 – Medical Marijuana Regulation and Safety Act (MMRSA) November 2015, 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   December 2015, 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 to expressly make clear that all cultivation and medical marijuana collectives, cooperatives and dispensaries, including mobile dispensaries are prohibited in all zones throughout the City to preserve the City’s local control and avoid ambiguity in enforcement matters January 2016 the Council introduced and adopted the ordinance March 8, 2016, the Council directed staff to revise the ordinance to allow limited amounts of personal cultivation and limited delivery services May 31, 2016 The Planning Commission recommended that the Council adopt the proposed ordinance. 2 Cultivation Both concerns and requests expressed related to the ability to legally grow marijuana for medical use. Provisions are intended to allow reasonable area and restrictions yet reduce potentially significant nuisance issues that may remain a concern for community residents. it is for the personal use of a qualified patient; it is located inside a detached single family dwelling but not within a kitchen, bathroom or occupied bedroom. Not in a garage. an area no more than 50 sq. ft. and 10 ft. in height may be devoted for cultivation; there is compliance with the California building codes; it is not visible from the exterior of the property; lighting for the use is limited; flammable or combustible materials are prohibited for its use; and it shall not adversely affect the health or safety of the occupants of other property in the vicinity and shall not be maintained in a manner so as to constitute a hazard. Landlords may prohibit medical marijuana cultivation by tenants. The enforcement will remain on a complaint basis. 3 Deliveries MMRSA addresses delivery of marijuana to qualified patients by dispensaries that will be licensed under the new regulations likely 2018. Requires persons who deliver to carry a copy of the dispensary’s license(s) and to maintain a copy of the patient’s request for delivery in compliance with federal and state laws regarding protecting confidential medical information. There are a number of considerations: First, under current law a primary caregiver may deliver medical marijuana to a qualified patient. Primary caregivers, however, are narrowly defined by the courts - must be actively involved in a patients care and not just providing marijuana. Could permit from marijuana dispensaries operating lawfully. There are no legal dispensaries in the San Luis Obispo area. Medical marijuana delivery services operate in a legal gray area – as “cooperatives or collectives” and are just delivering to members/participants in the cooperative or collective -qualified patient. 4 Deliveries, cont. Permit scheme allows the City to control who engages in delivery of marijuana, both through issuing a permit, and revoking a permit, if necessary. The proposed ordinance will provide for procedures to select up to three delivery services They must meet standards to protect the health and safety Drivers who deliver medical marijuana receive permits after appropriate background checks conducted by the Arroyo Grande Police Department Fairly rigorous criteria that applicants must address including their experience, safety procedures, recordkeeping, quality of their product including testing, labeling and packaging Provisions for insurance and revocation procedures Included delivery time restriction to allow deliveries only from 10am -7pm and restricting the location of deliveries to areas outside a radius of 1,000 ft. from schools, public libraries, day care or youth facilities or park and recreations facilities. 5 Planning Commission Discussed general operations and safety regarding deliveries If 1,000 ft. radius from any public or private school, public library, park, etc. is too strict? Should minimum age of delivery service driver (currently proposed at 18 yrs.) be 21 yrs. Vote was 3-2 to recommend the ordinance adoption. 6 7 Recommendation The Planning Commission recommends that the City Council adopt an ordinance amending Sections 16.62.010 and 16.62.050 of Title 16 of the Arroyo Grande Municipal Code relating to medical marijuana cultivation and amending Section 16.62.070 and adding Chapter 5.95 to Title 5 relating to deliveries of medical marijuana or medical cannabis products. 8 AB 243 (Wood) Medical Marijuana Places the Department of Food and Agriculture (DFA) in charge of licensing and regulation of indoor and outdoor cultivation sites. Creates a Medical Cannabis Cultivation Program within the department. Mandates the Department of Pesticide Regulation (DPR) to develop standards for pesticides in marijuana cultivation, and maximum tolerances for pesticides and other foreign object residue. Mandates the Department of Public Health (DPH) to develop standards for production and labelling of all edible medical cannabis products.  Assigns joint responsibility to DFA, Department of Fish and Wildlife (DFW), and the State Water Resources Control Board (SWRCB) to prevent illegal water diversion associated with marijuana cultivation from adversely affecting California fish population. Specifies that DPR, in consultation with SWRCB, is to develop regulations for application of pesticides in all cultivation. Specifies various types of cultivation licenses. Directs the multi-agency task force headed by DFW and SWRCB to expand its existing enforcement efforts to a statewide level to reduce adverse impacts of marijuana cultivation, including environmental impacts such as illegal discharge into waterways and poisoning of marine life and habitats. 9 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 Department of Consumer Affairs (DCA). Provides for dual licensing: state will issue licenses, and local governments will 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 the ability of the business to operate in that jurisdiction. 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 licensees from also holding licenses to sell alcohol. Grandfathers 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 enacted on or before July 1, 2015. Also requires such businesses 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 and during transport of the product. Specifies a standard for certification of testing labs, and specified minimum testing requirements. Prohibits testing 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. 10 SB 643 (McGuire) Medical Marijuana Directs the California Medical Board to prioritize investigation of excessive recommendations by physicians. Imposes fines ($5000.00) against physicians for violating prohibition against having a financial interest in a marijuana business. Recommendation for cannabis without a prior examination constitutes unprofessional conduct. Imposes restrictions on advertising for physician recommendations. Places DFA in charge of cultivation regulations and licensing, and requires a track and trace program. Codifies dual licensing (state license and local license or permit), and itemizes disqualifying felonies for state licensure. Places DPR in charge of pesticide regulation; DPH in charge of production and labeling of edibles. Upholds local power to levy fees and taxes.  11 “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 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 the cultivation of marijuana within the City. 12 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). 13 Recommendations from ElitecareSF Allow (2 – 4) delivery-only dispensaries, with no on-site sales -Review operation, twice annually -The City Staff shall have access to the entities books, records, accounts and any and all data relevant to its permitted activities for the purpose of conducting an audit or examination. -No sale shall be within 1000 feet of the following: - public or private schools - public libraries - daycares - youth centers (serving youth under 18) - parks & recreation facilities -Delivery Hours 10a – 7p - All medicine shall be Lab tested -Submit Seller’s Permit -Submit Ownership Information - Articles of Incorporation - Collective/cooperative agreement - Membership forms -Submit Insurance Verification -Submit owners, managers, & driver’s valid medical cannabis recommendation Permit Fees (based on Goleta, CA fees and population averages) -$65 for a Delivery Service License - $65 for each driver who must obtain a special license 14