O 675 ORDINANCE NO. 675
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 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 (MMF). 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. Inland Empire Patients Health & Wellness Center,
Inc., 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. In reaching this conclusion, the Supreme Court recognized
that the local police power, which derives from California Constitution, article XI, 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
9.26 of the Arroyo Grande Municipal Code prohibiting medical marijuana dispensaries in the
City, including mobile facilities; and
WHEREAS, 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; 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
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PAGE 2
WHEREAS, the City Council of the City of Arroyo Grande hereby makes the following findings
regarding the cultivation of medical marijuana within the boundaries of the City:
A. The cultivation of medical marijuana can adversely affect the health, safety and well-
being of the City and its residents. Medical marijuana cultivation increases the risk of .
criminal activity, degradation of the natural environment, excessive use of 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.
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, I
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.
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
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- PAGE 3
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 the city to prohibit cultivation uses by
March 1, 2016 either expressly or otherwise under the principles of permissive zoning, or the
State will become the sole licensing authority. The MMRSA also 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.
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
this ordinance to expressly make clear that all such uses are prohibited in all zones throughout
the City.
WHEREAS, the Planning Commission held a duly noticed public hearing on December 1, 2015
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.
WHEREAS, the City Council held_ a duly noticed public hearing on this Ordinance on January
12, 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 9.26 of the Arroyo Grande Municipal Code is hereby repealed.
SECTION 3. Chapter 16.62 is hereby added to Title 16 of the Arroyo Grande Municipal Code 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
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. Inland Empire Patients Health & Wellness Center.,
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PAGE 4
Inc., 56 Cal.4th 729 (2013) and Mara! 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.
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.
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 (I) and also means the planting, growing, harvesting, drying, processing or
ORDINANCE NO. 675.
PAGE 5
storagd 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 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.
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. -
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PAGE 6
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.
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. .
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 Section
15061(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
ORDINANCE NO. 675 -
PAGE 7
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
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 Guthrie, seconded by Council Member Barneich, and by the
following roll call vote to wit:
AYES: Council Members Guthrie, Barneich, Harmon, and Mayor Hill
NOES: Council Member Brown
ABSENT: None
the foregoing Ordinance was adopted this 26th day of January, 2016.
ORDINANCE NO. 675
PAGE 8
JI HILL, MAYOR
ATTEST:
/./J AJ 1L_%
KELLY ET,' ORE, CITY CLERK
APPROVED AS TO CONTENT:
/ AA/_4A. 411116i
DIANNE THOMPSONO MANAG R
APPROVED AS TO FORM:
H ATHER K. WHITHAM, CITY ATTORNEY
f '
OFFICIAL CERTIFICATION
I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San
Luis Obispo, State of California, do hereby certify under penalty of perjury, that
the attached Ordinance No. 675 which was introduced at a regular meeting of the
City Council on January 12, 2016; was passed and adopted at a regular meeting
of the City Council on the 26th day of January 2016; and was duly published in
accordance with State law (G.C. 40806).
WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 27th
day of January 2016.
KELL WEI'MORE, CITY CLERK
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