The city council finds and declares the following:
A. The
Control, Regulate and Tax Adult Use of Marijuana Act (the "AUMA"),
was approved by the voters of the state of California on November
8, 2016. The AUMA adds Section 11362.1 to the
Health and Safety Code,
which makes it "lawful under state and local law" for persons twenty-one
years of age or older to "possess, process, transport, purchase, obtain,
or give away to persons twenty-one years of age or older without any
compensation whatsoever" up to twenty-eight and one-half grams of
marijuana not in the form of concentrated cannabis or up to eight
grams of marijuana in the form of concentrated cannabis. The provisions
of the AUMA related to the possession, use, and cultivation of marijuana
became effective on November 9, 2016.
B. To regulate
the commercial use of non-medical marijuana, the AUMA adds Division
10 (Marijuana) to the
Business and Professions Code, Sections 26000
et seq., which grants state agencies the authority to create, issue,
renew, discipline, suspend, or revoke licenses for marijuana businesses.
The AUMA provides that the state shall begin issuing licenses to marijuana
businesses under Division 10 of the
Business and Professions Code
by January 1, 2018.
C. Business
and Professions Code Section 26055(e) provides that a state licensing
authority shall not approve an application for a state license for
commercial non-medical marijuana activity, if approval of the state
license will violate the provisions of any local ordinance.
D. The
AUMA permits cities to: (1) adopt and enforce local ordinances to
regulate non-medical marijuana businesses, including, but not limited
to, local zoning and land use requirements, business license requirements,
and requirements related to reducing exposure to secondhand smoke;
or (2) completely prohibit the establishment or operation of marijuana
businesses within its jurisdiction.
E. The
AUMA allows for the planting, cultivation, harvesting, drying and
processing ("cultivation activities") of up to six marijuana plants
in, or upon the grounds of, a private residence, as well as the possession
of any marijuana produced by the plants. The AUMA authorizes a city
to enact and enforce an ordinance that reasonably regulates cultivation
activities, and to completely prohibit cultivation activities outdoors
upon the grounds of a private residence unless the California Attorney
General determines that non-medical use of marijuana is lawful in
the state under federal law.
F. On October
9, 2015, Governor Brown signed Assembly Bill No. 243, Assembly Bill
No. 266, and Senate Bill 643 into law, which are now collectively
known as the Medical Cannabis Regulation and Safety Act (hereinafter
"MCRSA"). The MCRSA establishes a state licensing scheme for commercial
medical marijuana uses, while protecting local control by requiring
that all such businesses must have a local license or permit to operate
in addition to a state license. The MCRSA allows a city to completely
prohibit commercial medical marijuana activities, including the cultivation
of medical marijuana.
G. In 1996,
the voters of the state of California approved Proposition 215 (codified
as California
Health and Safety Code Section 11362.5, and entitled
"The Compassionate Use Act of 1996" or "CUA"). The intent of Proposition
215 was to enable persons who are in need of marijuana for medical
purposes to use it without fear of criminal prosecution under limited,
specified circumstances. The proposition further provides that "nothing
in this section shall be construed to supersede legislation prohibiting
persons from engaging in conduct that endangers others, or to condone
the diversion of marijuana for non-medical purposes." The ballot arguments
supporting Proposition 215 expressly acknowledged that "Proposition
215 does not allow unlimited quantities of marijuana to be grown anywhere."
H. In 2004,
the Legislature enacted Senate Bill 420 (codified as California Health
and Safety Code sections 11362.7, et seq., and referred to as the
"Medical Marijuana Program" or "MMP") to clarify the scope of Proposition
215, and to provide qualified patients and primary caregivers who
collectively or cooperatively cultivate marijuana for medical purposes
with a limited defense to certain specified state criminal statutes.
Assembly Bill 2650 (2010) and Assembly Bill 1300 (2011) amended the
Medical Marijuana Program to expressly recognize the authority of
counties and cities to "[a]dopt local ordinances that regulate the
location, operation, or establishment of a medical marijuana cooperative
or collective" and to civilly and criminally enforce such ordinances.
I. In City of Riverside v. Inland Empire Patients Health and Wellness Center,
Inc. (2013) 56 Cal. 4th 729, the California Supreme Court
held that "[n]othing in the CUA or the MMP expressly or impliedly
limits the inherent authority of a local jurisdiction, by its own
ordinances, to regulate the use of its land..." Additionally, in Maral v. City of Live Oak (2013) 221 Cal. App.4th 975, the
Court of Appeal held that "there is no right—and certainly no
constitutional right—to cultivate medical marijuana…"
The Court in Maral affirmed the ability of a local
governmental entity to prohibit the cultivation of marijuana under
its land use authority.
J. The
Federal Controlled Substances Act, 21 U.S.C. Section 801, et seq.,
classifies marijuana 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,
or possess with intent to manufacture, distribute or dispense, marijuana.
The Federal Controlled Substances Act contains no exemption for the
cultivation, manufacture, distribution, dispensation, or possession
of marijuana for any purposes.
K. Cities
in California have reported negative effects of marijuana cultivation,
processing and distribution activities, including offensive odors,
illegal sales and distribution of marijuana, trespassing, theft, violent
robberies and robbery attempts, fire hazards, and problems associated
with mold, fungus, and pests. Furthermore, as marijuana plants begin
to flower, and for a period of two months or more, the plants produce
a strong, unique odor, offensive to many people, and detectable far
beyond property boundaries if grown outdoors. This odor can have the
effect of encouraging theft by alerting persons to the location of
the valuable plants, and creating a risk of burglary, robbery or armed
robbery of the plants and creating the potential for violent acts
related to such criminal activity.
L. Marijuana
cultivation in the city can adversely affect the health, safety, and
well-being of city residents, visitors and workers. Regulating marijuana
cultivation in the city is proper and necessary to avoid the risks
of criminal activity, degradation of the natural environment, and
malodorous smells that may result from unregulated marijuana cultivation,
and that are especially significant if the amount of marijuana cultivated
on a single premises is not regulated and substantial amounts of marijuana
are thereby allowed to be concentrated in one place.
M. The
justification for regulating or banning commercial marijuana cultivation
pursuant to the city's police power includes, but is not limited to:
(1) The increased risk to public health and safety, based on the value
of marijuana plants and flowers and the accompanying threat of break-ins,
robbery and theft, and attendant violence and injury; (2) the strong
"skunk like" malodorous fumes emitted from mature plants which can
interfere with the use and enjoyment of neighboring properties by
their occupants; and (3) the potential for theft and use by school
age children where marijuana is cultivated in a visible location,
particularly where such location is close to schools.
N. As recognized
by the Attorney General's August 2008 Guidelines for the security
and non-diversion of marijuana grown for medical use, marijuana cultivation
or other concentration of marijuana in any location or premises without
adequate security increases the risk that surrounding homes or businesses
may be negatively impacted by nuisance activity such as loitering
or crime.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
This chapter is adopted pursuant to the authority granted by
Article XI, Section 7 of the California Constitution, Health and Safety
Code Section 11362.83,
Government Code Sections 25845 and 53069.4,
the MCRSA, the AUMA, and other applicable law.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
As used in this chapter the following specific terms shall have
the following meanings:
"AUMA"
means the Control, Regulate and Tax Adult Use of Marijuana
Act approved by the voters on November 8, 2016, as the same may be
amended from time to time.
"Child care center"
means any licensed child care center, daycare center, child
care home, or any preschool.
"Community center"
means any facility open to the public at which classes, social
activities, recreational activities, educational activities, support
and public information are offered for all residents of the community.
"Commercial marijuana activity"
means the cultivation, possession, manufacture, distribution,
processing, storing, laboratory testing, labeling, transportation,
delivery, or sale of marijuana and marijuana products, whether or
not for profit. "Commercial marijuana activity" also includes the
activities of any business licensed by the state or other government
entity under Division 8 or 10 of the
Business and Professions Code,
as they may be amended from time to time.
"Cultivation"
means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of marijuana.
"Delivery"
means the commercial transfer of marijuana or marijuana products
to a customer. "Delivery" also means the use by a retailer of any
technology platform owned and controlled by the retailer, or independently
licensed under California law, that enables customers to arrange for
or facilitate the commercial transfer by a licensed retailer of marijuana
or marijuana products.
"Distribution"
means the procurement, sale, and transport of marijuana and
marijuana products between entities licensed under Division 8 or 10
of the
Business and Professions Code, as they may be amended from
time to time.
"Fully enclosed and secure structure"
means a space within a building, greenhouse or other structure
which has a complete roof enclosure supported by connecting walls
extending from the ground to the roof, which is secure against unauthorized
entry, provides complete visual screening, and which is accessible
only through one or more lockable doors and inaccessible to minors.
The fully enclosed and secure structure must maintain a minimum ten-foot
setback from any property line. Such setback distance shall be measured
in a straight line from the fully enclosed and secure structure in
which the marijuana plants are cultivated. The ten-foot setback requirement
does not apply to cultivation occurring in a garage.
"Marijuana"
means parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof;
the resin, whether crude or purified, extracted from any part of the
plant; and every compound, manufacture, salt, derivative, mixture,
or preparation of the plant, its seeds, or resin. "Marijuana" also
means the separated resin, whether crude or purified, obtained from
marijuana, and any product containing marijuana. It does not include:
2.
The weight of any other ingredient combined with marijuana to
prepare topical or oral administrations, food, drink, or other product.
Marijuana also includes "cannabis" as defined in Business and
Professions Code Section 19300.5(f), as the same may be amended from
time to time.
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"Marijuana cultivation"
means the planting, growing, harvesting, drying, processing,
or storage of one or more marijuana plants or any part thereof in
any location, indoor or outdoor, fixed or mobile, for medical, non-medical
or other uses.
"MCRSA"
means the Medical Cannabis Regulation and Safety Act as contained,
codified, enacted, and signed into law on October 9, 2015, as Assembly
Bill No. 243, Assembly Bill No. 266, and Senate Bill 643, and as amended
by Assembly Bill 21 in 2016, as the same may be amended from time
to time.
"Person"
means any individual, firm, co-partnership, joint venture,
association, collective, cooperative, corporation, limited liability
company, non-profit, estate, trust, business trust, receiver, syndicate,
or any other group or combination acting as a unit, and the plural
as well as the singular.
"Private residence"
means a house, an apartment unit, a mobile home, or other
similar dwelling that is lawfully used as a residence.
"School"
means an institution of learning for minors, whether public
or private, offering a regular course of instruction required by the
California
Education Code. This definition includes a nursery school,
kindergarten, elementary school, middle or junior high school, senior
high school, or any special institution of education, but it does
not include a home school, vocational or professional institution
of higher education, including a community or junior college, college,
or university.
"Youth-oriented facility"
means any facility that caters to or provides services primarily
intended for minors, or the individuals who regularly patronize, congregate
or assemble at the establishment are predominantly minors.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
A. Commercial
marijuana activity for medical, non-medical or other purposes is expressly
prohibited everywhere in the city including all zoning districts,
specific plan areas, overlay zones and planned development zones.
No person shall establish, operate, maintain, conduct or allow commercial
marijuana activity for medical, non-medical or other purposes anywhere
within the city. No application for a building permit, conditional
use permit, business license, or any other entitlement authorizing
the establishment, operation, maintenance, development, or construction
of any use that allows for commercial marijuana activity for medical,
non-medical, or other purposes, shall be approved by the city.
B. A property
owner shall not rent, lease or otherwise permit any business that
engages in commercial marijuana activity to occupy real property in
the city. A property owner shall not allow any person or business
to establish, operate, maintain, conduct, or engage in commercial
marijuana activity on any real property owned or controlled by that
property owner that is located in the city.
C. This
section shall prohibit all activities for which a state license is
required pursuant to the AUMA or the MCRSA. Accordingly, the city
shall not issue any permit, license or other entitlement for any activity
for which a state license is required under the AUMA or the MCRSA.
The city shall also not issue any local license to a non-profit entity
pursuant to
Business and Professions Code Section 26070.5.
D. Except
for deliveries to primary caregivers or qualified patients, as defined
in this chapter, all deliveries of marijuana or marijuana products
to or from any location in the city are expressly prohibited. Except
for deliveries to primary caregivers or qualified patients, as defined
in this chapter, no person shall conduct or perform any delivery of
any marijuana or marijuana products, which delivery either originates
or terminates within the city. This subsection shall not prohibit
any person from transporting marijuana or marijuana products on public
roads by a person licensed under either Chapter 3.5 of Division 8
or Division 10 of the California
Business and Professions Code.
E. The
prohibition in this section shall not prohibit a person twenty-one
years of age or older from: (1) possessing, processing, purchasing,
transporting, obtaining or giving away to persons twenty-one years
of age or older, without compensation whatsoever, not more than twenty-eight
and one-half grams of marijuana not in the form of concentrated cannabis
or up to eight grams in the form of concentrated cannabis; (2) smoking
or ingesting marijuana or marijuana products; (3) possessing, transporting,
purchasing, obtaining, using, manufacturing, or giving away marijuana
accessories to persons twenty-one years of age or older without compensation
whatsoever, to the extent that such activities are authorized by Health
and Safety Code Section 11362.1; or (4) engaging in the indoor cultivation
of six or fewer live marijuana plants within a single private residence
or inside an accessory structure located upon the grounds of a private
residence that is fully enclosed and secured, to the extent such cultivation
is authorized by
Health and Safety Code Sections 11362.1 and 11362.2.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
A. Marijuana cultivation, outdoors, for medical, non-medical or other purposes, is prohibited everywhere in the city including all zoning districts, specific plan areas, overlay zones and planned development zones and is hereby declared to be unlawful and a public nuisance, except as otherwise provided in Section
8.52.060. No person owning, renting, leasing, occupying or having charge or possession of any parcel shall cause or allow such parcel to be used for cultivating marijuana outdoors. The foregoing prohibition shall be imposed regardless of the number of qualified patients or primary caregivers residing at the premises or participating directly or indirectly in the cultivation. Further, this prohibition shall be imposed notwithstanding any assertion that the person or persons cultivating marijuana are the primary caregiver or caregivers for qualified patients or that such person or persons are collectively or cooperatively cultivating marijuana. There is a limited exemption from enforcement of this subsection as set forth in Section
8.52.060.
B. Marijuana cultivation, indoors, for medical purposes is prohibited. There is a limited exemption from enforcement of this subsection as set forth in Section
8.52.060.
C. Marijuana
cultivation, indoors, for non-medical purposes will be allowed consistent
with state law. As required by state law, no more than six live marijuana
plants may be planted, cultivated, harvested, dried, or processed
within a single private residence or inside an accessory structure
located upon the grounds of a private residence that is fully enclosed
and secured. Any marijuana cultivation for non-medical marijuana purposes
that exceeds the limits set forth in this subsection is hereby declared
to be unlawful and a public nuisance.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
A. The city is committed to making efficient and rational use of its limited investigative and prosecutorial resources. There shall be a limited exemption from enforcement for violations of this chapter by primary caregivers and qualified patients for small amounts of marijuana cultivation for their own medical use in zone classifications identified in Section
17.06.030 on which a single-family detached dwelling exists when all of the following conditions and standards are complied with:
1. The
premises shall contain a legally permitted single-family detached
dwelling.
2. Cultivation
of no more than twelve marijuana plants per qualified patient. In
the event a qualified patient has a primary caregiver cultivating
marijuana plants for the qualified patient, only one primary caregiver
may cultivate no more than twelve marijuana plants for that qualified
patient at any one time. In no circumstances shall a qualified patient
have multiple primary caregivers cultivating marijuana plants for
the qualified patient at the same time in the city.
3. Two
qualified patient limit to aggregate marijuana plant count for a maximum
total of twenty-four marijuana plants per premises.
4. At
least one qualified patient or one primary caregiver, acting on behalf
of the qualified patient pursuant to subsection (A)(2), must live
on the premises.
5. All
marijuana plants must be reasonably secured to prevent theft and access
to the plants by persons under the age of twenty-one, to a standard
satisfactory to the enforcement official.
6. All marijuana cultivation outside of any building must be fully enclosed by an opaque fence at least six feet in height. The fence must be adequately secured to prevent unauthorized entry. Bushes, hedgerows, plastic sheeting, tarps, or cloth material shall not constitute an adequate fence under this subsection. Premises larger than five acres are exempt from this fencing provision so long as all other standards and conditions of subsection
A of this section are complied with and any barriers used are otherwise consistent with this code.
7. Each
building or outdoor area in which the marijuana plants are cultivated
shall be set back at least ten feet from all boundaries of the premises.
Such setback distance shall be measured in a straight line from the
building in which the marijuana plants are cultivated, or, if the
marijuana plants are cultivated in an outdoor area, from the fence
required by subsection (A)(6) to the boundary line of the premises.
8. The
designated marijuana cultivation area must not be visible from any
public right-of-way.
9. If
the person cultivating marijuana plants on any premises is not the
owner of the premises, such person shall submit a letter from the
owner(s) consenting to the marijuana cultivation on the parcel. An
original of this letter shall be submitted to and retained by the
community development department. The city shall prescribe forms for
such letters.
10. Parolees or probationers shall not live on the premises unless the
parolees or probationers have received written confirmation from the
court that he or she is allowed to use medical marijuana while on
parole or probation pursuant to
Health and Safety Code Section 11362.795
which shall be subject to verification by the enforcement official.
11. Qualified patients for whom the marijuana plants are being cultivated
shall have valid medical marijuana identification cards issued by
the Riverside County department of public health. Any primary caregiver
cultivating marijuana plants for a qualified patient shall have a
copy of the qualified patient's valid medical marijuana identification
card issued by the Riverside County department of public health which
shall be kept on the premises.
12. The address for the premises must be posted and plainly visible from
the public right-of-way.
13. The marijuana cultivation shall not be within a building containing
two or more dwelling units.
14. The marijuana cultivation shall not be upon any premises located
within one thousand feet of any school, community center, or park.
15. The marijuana cultivation shall not be upon any premises containing
a child care center, church (religious facility), or youth-oriented
facility.
B. Any marijuana cultivation for medical purposes that does not comply with all of the standards and conditions in subsection
A of this section is a public nuisance and shall be subject to penalties and abatement as provided in Title
1 and Chapters
8.12 and
8.52 this code.
(Ord. 16-01 § 1; Ord. 17-02 § 1)
Nothing in this chapter shall be construed as a limitation on
the city's authority to abate any nuisance which may otherwise exist
from the planting, growing, harvesting, drying, processing or storage
of marijuana plants or any part thereof from any location, indoor
or outdoor, including from within a fully enclosed and secure building,
as long as such abatement is consistent with state law.
(Ord. 16-01 § 1; Ord. 17-02 § 1)