The city council of the city of Lathrop finds and declares as follows:
In 1996, the voters of the state of California approved Proposition 215 (codified as California Health and Safety Code Section 11362.5 and titled the "Compassionate Use Act of 1996").
The intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to be able to obtain and use it without fear of criminal prosecution under limited, specified circumstances.
In 2004, Senate Bill 420 was enacted (codified as California Health and Safety Code Section 11362.7 et seq., and titled the "Medical Marijuana Program Act") to clarify the scope of the Compassionate Use Act of 1996. The Medical Marijuana Program Act allows cities to adopt and enforce rules and regulations consistent with its provisions.
In 2011, Assembly Bill 2650 was enacted (codified as California Health and Safety Code Section 11362.768). This law affirms that cities can adopt ordinances that restrict the location and establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.
The Supreme Court of California held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal. 4th 729, 753 ("Inland Empire") that the objectives of the Compassionate Use Act of 1996 and Medical Marijuana Program Act were modest and that those acts did not create a broad right to access medical marijuana.
Inland Empire states that neither the Compassionate Use Act of 1996 nor the Medical Marijuana Program Act "expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude" the distribution of medical marijuana. (Id. at p. 762.)
On November 8, 2016, the people of the state of California passed Proposition 64 (also known as the Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA")), legalizing the possession, use and cultivation of marijuana by adults 21 years of age and older, subject to certain limitations.
The AUMA requires local jurisdictions to allow adults 21 years of age and older to cultivate up to six cannabis plants per household indoor for personal use but permits local governments to regulate the cultivation of marijuana or cannabis within their jurisdiction, subject to state law limitations.
The city of Lathrop is interested in regulating the cultivation of marijuana or cannabis to promote health, safety, and welfare of the community.
Marijuana cultivation creates offensive and irritating odor, especially when the plants are flowering.
Grows often use chemicals and pesticides, many of which are illegal and extremely toxic to people and wildlife and which may pollute soil, ground water, and/or nearby water sources.
Investigations of marijuana grows are time consuming and dangerous for Lathrop police services. Marijuana cultivation attracts crime and associated violence; in this city has been a magnet for thefts, robberies, illegal firearms, shootings, and homicides.
Cultivation is very visible and may be easily accessible to the public, including children and youths.
Marijuana cultivation requires large amounts of water, which is sometimes illegally diverted from farms, homes, or waterways.
Marijuana cultivation requires extensive energy consumption, which is often illegally consumed and/or wired in an improper and dangerous manner.
Marijuana cultivation sites may contain armed guards and/or booby trap devices that threaten severe bodily harm or death to those who attempt to access them. Such devices may be a threat to any person that enters the area of the grow, but are often designed specifically to injure law enforcement personnel. Especially during harvest and processing season there is an immediate threat of violent crime depending on the size, location, gang/drug trafficker involvement, and monetary value of these medical marijuana grows. Reasonable regulations on cultivation are necessary to minimize likelihood of danger to law enforcement officials.
Eradication of marijuana grows may be dangerous and labor intensive for law enforcement officials because of the potential of armed suspects, booby traps, and varying conditions of the grow. Reasonable regulations on cultivation are necessary to minimize likelihood of danger to law enforcement officials.
Marijuana cultivation creates an increased likelihood of criminal activity. Reasonable regulations on cultivation are necessary to minimize likelihood of criminal activity.
Marijuana cultivation is harmful to the welfare of residents, creates a nuisance, and threatens the safety and premises of nearby land owners and their families. Reasonable regulations on cultivation are necessary to minimize such negative effects.
Marijuana cultivation poses an urgent and immediate threat to the public peace, health, and safety. Reasonable regulations on cultivation are necessary to minimize such negative effects.
If marijuana cultivation is not regulated then large quantities of marijuana may be introduced into the local market and will bring with it increasing threats to public peace, health, and safety.
The city of Lathrop has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses, in preventing the establishment of nuisances, while also allowing the consumption of medical marijuana for ill residents pursuant to Compassionate Use Act of 1996 and the Medical Marijuana Program Act.
Nothing in this chapter shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 841 or to license any activity that is prohibited under the act except as mandated by state law. The AUMA requires local jurisdictions to allow adults 21 years of age and older to cultivate up to six cannabis plants per household indoor for personal use but permits local governments to regulate the cultivation of marijuana or cannabis within their jurisdiction, subject to state law limitations.
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 medical purposes. The AUMA requires local jurisdictions to allow adults 21 years of age and older to cultivate up to six cannabis plants per household indoor for personal use but permits local governments to regulate the cultivation of marijuana or cannabis within their jurisdiction, subject to state law limitations.
(Ord. 15-351; Ord. 17-380 § 1)
It is the purpose and intent of this chapter pursuant to Government Code Section 25123(d) to immediately regulate marijuana cultivation to preserve the public peace, health, safety, and general welfare of the citizens of Lathrop.
(Ord. 15-351; Ord. 17-380 § 1)
This chapter is not intended to, nor shall it be construed or given effect in a manner that causes it to apply to, any activity that is regulated by state law to the extent that application of this chapter would conflict with such law or would unduly interfere with the achievement of state regulatory purposes. It is the intention of the city council that this chapter shall be interpreted to be compatible and consistent with city, county and state enactments and in furtherance of the public purposes which those enactments express. It is the intention that the provisions of this chapter will supersede any other provisions of this code found to be in conflict.
(Ord. 15-351; Ord. 17-380 § 1)
Unless otherwise specified, the following definitions shall be applicable throughout this chapter:
"Authorized grower"
means a person 21 years of age or older who is authorized by, and in compliance with, federal or state law to cultivate marijuana indoors for personal or medical use.
"Cannabis"
has the same meaning as in Section 19300.5 of the Business and Professions Code.
"City"
means the city of Lathrop or the unincorporated area of the city of Lathrop as required by the context.
"Collective"
is the planting, growing, harvesting, drying, processing, or storage of one or more medical marijuana plants or any part thereof in any location on behalf of more than one qualified patient.
"Fully enclosed and secure structure"
means a fully-enclosed space within a building that complies with the California Building Code (CBSC"), as adopted in the city of Lathrop, or if exempt from the permit requirements of the CBSC, that has complete roof, foundation, slab or equivalent base to which enclosure is secured by bolts or similar attachment, is secure against unauthorized entry, is accessible only through one or more lockable doors, and is not visible from a public right-of-way. Walls and roofs must be constructed of solid materials that cannot be easily broken through such as two-inch by four-inch nominal or thicker studs overlaid with three-eighths-inch or thicker plywood in good condition or the equivalent. Plastic sheeting, regardless of gauge, or similar products, do not satisfy this requirement. If indoor grow lights or air filtration systems are used, they must comply with the California building, electrical, and fire codes as adopted by the city of Lathrop.
"Immature marijuana plant"
means a marijuana plant, whether male or female, that has not yet flowered and which does not yet have buds that are readily observed by unaided visual examination.
"Indoors"
means within a fully enclosed and secure structure as that structure defined herein.
"Marijuana"
shall have the same definition as in California Health and Safety Code Section 11018 as it now reads or as amended and includes, but is not limited to, marijuana used for medical purposes in accordance with California Health and Safety Code Section 11362.7 et seq., as it now reads or as amended.
"Marijuana cultivation or cannabis cultivation"
means the planting, growing, harvesting, drying, processing, or storage of one or more marijuana or cannabis plants or any part thereof, including cultivation for medicinal purposes in accordance with California Health and Safety Code Section 11362.7 et seq., as it now reads or as amended.
"Mature marijuana plant"
means any marijuana or cannabis plant, whether male or female, that has flowered and which has buds that are readily observed by unaided visual examination.
"Outdoor"
means any location within the city of Lathrop that is not within a fully enclosed and secure structure as that structure defined herein.
"Parcel"
means any property assigned a separate parcel number by the San Joaquin County assessor.
"Primary caregiver"
shall be an individual that: (1) consistently assumes responsibility for the house, health, or safety of the medical marijuana patient; (2) satisfies the criteria as expressed in California Supreme Court Case People v. Mentch (2008) 45 Cal. 4th 274, 283, which are that the person: (i) consistently provides caregiving to the medical marijuana patient, (ii) provided that caregiving independent of any assistance in taking medical marijuana, (iii) provided that caregiving at or before the time they assumed responsibility for assisting with medical marijuana; and (3) holds a valid state of California, California medical marijuana identification card designating them as a primary caregiver.
"Private residence"
means a house, apartment unit, mobile home, or other dwelling unit.
"Qualified patient"
shall be a person with a doctor's recommendation for medical marijuana/cannabis and holds a valid state of California, California medical marijuana identification card designating them as a patient.
(Ord. 15-351; Ord. 17-380 § 1)
A. 
No person shall grow or cultivate marijuana or cannabis upon any parcel until and unless they first obtain a permit to do so from both the city building department and the primary fire district providing fire response to the specific parcel and pay appropriate fees set for by resolution by the city and fire district.
B. 
When authorized by state law, an authorized grower shall be allowed to cultivate marijuana only at a private residence, only indoors, and only for personal or personal medical use, subject to the following regulations.
1. 
The marijuana or cannabis cultivation area shall be located indoors within a fully enclosed and secure structure and shall not exceed 50 square feet and shall not allow plants on any other object to reach within 12 inches of the ceiling or any cultivation lighting. Cultivation in a greenhouse on the property of the residence but not physically part of the home is permitted, as long as it is fully enclosed, secure and not visible from a public right-of-way and meeting all requirements of this chapter.
2. 
The use of gas products such as, but not limited to CO2, butane, methane, or any other flammable or non-flammable gas for marijuana cultivation or processing is prohibited.
3. 
There shall be no exterior visibility or evidence of marijuana cultivation outside the private residence from the public right-of-way, including, but not limited to, any marijuana plants, equipment used in growing and cultivation operation, or any light emanating from cultivation lighting.
4. 
The authorized grower shall reside full-time in the residence where the marijuana or cannabis cultivation occurs.
5. 
The authorized grower shall not participate in marijuana or cannabis cultivation in any other location within the city.
6. 
The residence shall include fully functional and usable kitchen, bathroom and bedroom areas for their intended use by the resident authorized grower, and the premises shall not be used primarily or exclusively for marijuana or cannabis cultivation.
7. 
The marijuana or cannabis cultivation area shall be in compliance with the California Building Code.
8. 
The building official may require additional specific standards to meet the California Building Code and Fire Code, including, but not limited to, installation of fire suppression sprinklers.
9. 
The marijuana or cannabis cultivation area shall not result in a nuisance or adversely affect the health, welfare, or safety of the resident or nearby residents by creating dust, glare, heat, noise, noxious gases, odors, smoke, traffic, vibration, or other impacts, or be hazardous due to use or storage of materials, processes, products or wastes.
10. 
No more than a total of six marijuana plants per household, including all mature marijuana plants and all immature marijuana plants, are permitted for indoor personal or medical cultivation under this chapter.
11. 
Marijuana in excess of twenty-eight and one-half (28.5) grams produced by plants kept for personal use under this chapter must be kept in a locked space on the grounds of the private residence not visible from the public right-of-way.
C. 
All cultivation of marijuana and cannabis for non-personal use or otherwise in violation of the regulations in this chapter is expressly prohibited in the city of Lathrop.
(Ord. 17-380 § 1)
It is hereby declared to be unlawful, a public nuisance, and a violation of this chapter for any person owning, leasing, occupying, or having charge or possession of any parcel within the city to cause or allow such premises to be used for outdoor cultivation of marijuana or cannabis plants or for indoor cultivation of marijuana or cannabis plants in violation of the regulations in this chapter. Each person or responsible party is subject to abatement, and/or penalties for misdemeanor infractions, and/or administrative penalties under this chapter.
(Ord. 15-351; Ord. 17-380 § 1)
A. 
It shall be unlawful for any person to violate, or to permit the violation of, any provision of this chapter. All owners, occupants and other persons at or on the property or premises where a violation of this chapter occurs may be cited and convicted; provided, however, that an owner who is not in possession of his or her property, and who instead permitted another person to occupy the property, shall not be convicted of a violation unless: (1) the owner was in fact present at the property during the time in which the violation occurred; or (2) the owner has been previously issued a citation from the city describing a violation of this chapter and has failed to remedy the violation within 90 calendar days from the date of the citation; or (3) the owner has actual knowledge of the existence of a violation of this chapter and failed to take reasonable steps to remedy the violation on his or her property within 10 calendar days of gaining that knowledge of the violation of this chapter. Each violation of this chapter is illegal marijuana cultivation and is an unlawful violation of this code, a misdemeanor punishable by a fine of not more than $500, imprisonment in the County Jail for no longer than six months, or an alternative to detention, or by both such fine and imprisonment/alternative to detention, and/or any other enforcement remedies available to the city under any applicable state or federal statute or pursuant to any other lawful power the city may possess.
B. 
Each day illegal marijuana cultivation continues shall constitute a separate violation and be subject to the maximum penalty and any other enforcement remedies available to the city under any applicable state or federal statute or pursuant to any other lawful power the city may possess.
C. 
In addition to enforcement pursuant to this chapter, the city may bring a civil suit or action against the person responsible for such violation(s) and that person shall be liable to the city for costs of the suit, including, but not limited to, attorney's fees.
(Ord. 15-351; Ord. 17-380 § 1)
All remedies provided for herein are cumulative and not exclusive, and are in addition to any other remedy or penalty provided by law. Nothing in this chapter shall be deemed to authorize or permit any activity that violates any provision of state or federal law.
(Ord. 15-351; Ord. 17-380 § 1)
If any part or subsection of this chapter is for any reason held to be invalid, unlawful, or unconstitutional, such invalidity, unlawfulness, or unconstitutionality shall not affect the validity, lawfulness, or constitutionality of any other part of this chapter.
The ordinance codified in this chapter shall take effect 30 days after its adoption, and within 15 days after its passage shall be published at least once in a newspaper of general circulation, printed, and published in the county of San Joaquin.
(Ord. 15-351; Ord. 17-380 § 1)