CC 2016-01-12_10c PP Presentation Introduction of Ordinance_Medical MarijuanaItem 10.c.. Consideration of AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE 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
City Council Meeting January 12, 2016
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Background
1996 – CA Proposition 215 “Compassionate Use Act”
2003 – CA Medical Marijuana Program Act, provided clarifications
Uncertainty due to federal law that categorizes marijuana as a controlled substance
2008 & 2012 -City Council adopted Ord. 599 prohibiting dispensaries, and Ord. 647 including mobile dispensaries in the definition of medical marijuana dispensaries
2013 – CA Supreme Court ruled that local governments have the power to ban dispensaries and Sate Court of Appeals held local authority to prohibit cultivation
2015 - October, Gov. Brown signed AB266, AB 243 and SB 643 – Medical Marijuana Regulation and Safety Act (MMRSA)
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Analysis
MMRSA expressly preserves the authority of a City’s zoning power and police power under the State Constitution.
Includes extensive provisions relating to cultivation and contains language that provides that if a city does not have land use regulations or ordinances regulating or prohibiting the
cultivation of marijuana by March 1, 2016 the State will become the sole licensing authority.
City may have specific regulations or rely on permissive zoning but some areas may be unclear.
On November 24, 2015 the City Council directed the preparation of an ordinance to prohibit cultivation of marijuana to ensure clarity and consistency for purposes of enforcement, and
to ensure local control (legislation is still evolving).
On December 1, 2015 the Planning Commission recommended that the Council adopt the proposed ordinance prohibiting medical marijuana dispensaries, cooperatives and collectives, cultivation
of medical marijuana, and deliveries of medical marijuana or medical cannabis products.
Adopting an ordinance that expressly makes clear that cultivation and all commercial medical marijuana uses are prohibited would provide an opportunity to reduce enforcement issues
relating to cultivation operations and preserves local control.
Clean up language inserted regarding delivery services consistent with our existing ordinance.
Testimony received at Council and PC regarding demonstrated significant nuisance issues as well as requests for regulation instead of prohibition for cultivation. Although there are
widely recognized benefits to medical marijuana.. The regulatory landscape is fluid and evolving. Adoption of the ord. does not preempt our ability to modify the ordinance in the
future should changes at the ballot or courts or regulatory schemes precipitate another look.
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Proposed Ordinance
16.62.010 Purpose and findings
..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.
16.62.020 Application
16.62.030 Administration
16.62.040 Definitions
16.62.050 Cultivation prohibited
Includes a provision for landlords to be held accountable
16.62.060 Medical Marijuana Collectives, Cooperatives and Dispensaries Prohibited
16.62.070 Deliveries Prohibited
16.62.080 Violations and penalties
Modified to delete originally drafted misdemeanor penalty provisions for other enforcement mechanisms including nuisance abatement procedures.
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Recommendation
It is recommended 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.
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Other jurisdictions in the County
County
Urgency ordinance being drafted by staff for complete ban, no date set for return to board of supervisors.
Delivery technically allowed, but no licenses issued.
SLO
Resolution clarifying zoning code implicitly does not allow marijuana dispensaries by not including them within the code.
Delivery not explicitly banned, but has not issued a license for mobile delivery as of yet
ordinance in place about offensive smells wafting over property lines due to outdoor grow operation
Atascadero
Planning commission recommended complete ban – standard ordinance, going to city council on Jan 14.
Mobile delivery is banned
Morro
City council scheduled to discuss both ordinance and a resolution regarding regulations Jan 12.
Allows delivery
Grover
Standard ordinance approved banning cultivation except personal allowed by state law
Allows delivery
Pismo
Complete ban – standard ordinance
Allows delivery
Paso Robles
Complete ban – standard ordinance
Allows delivery
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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.
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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.
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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.
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“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.
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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 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.
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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).
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16.62.050 Cultivation prohibited.
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 within the City of Arroyo Grande for any purpose is prohibited,
and is expressly declared to be a public nuisance.
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.
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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.
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.
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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 in 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.
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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.
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Alternative
16.62.050 Cultivation prohibited.
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.
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Alternative, cont.
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 occupents 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 constute 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.
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