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HomeMy Public PortalAbout07) 7D Medical Marijuana Facilities and ActivitiesCity Council January 19, 2016 Page 2 of 2 FISCAL IMPACT: The proposed ordinance would have no impact on the Fiscal Year 2015-16 City Budget. ATTACHMENTS: A. Ordinance No. 16-1008 B. City Council staff report from January 5, 2016 ATTACHMENT A ORDINANCE NO. 16-1008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, AMENDING TEMPLE CITY MUNICIPAL CODE SECTION 9-H-7 PERTAINING TO MEDICAL MARIJUANA FACILITIES AND ACTIVITIES. WHEREAS, Temple City Municipal Code Section 9-H-7 prohibits fixed and mobile medical marijuana dispensaries in all zones in the City; and WHEREAS, the California Supreme Court ruled unanimously in City of Riverside v. Inland Empire Patients Health and Wei/ness Center, Inc. (2013) 56 Cal.4th 729, that the Compassionate Use Act (Proposition 215) ("CUA'') and the Medical Marijuana Program Act of 2004 ("MMPA"), do not preempt local ordinances that completely and permanently ban medical marijuana facilities; and WHEREAS, in Mara/ v. City of Live Oak (2012) 221 Cai.App.4th 975, the Third District Court of Appeal held, based on Inland Empire, that there was no right to cultivate medical marijuana and that a city could implement and enforce a complete ban on this activity; and WHEREAS, on September 11, 2015, the California Legislature passed Assembly Bills 243 and 266 and Senate Bill 643, which taken together create a broad state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, as well as physician recommendations for medical marijuana; and WHEREAS, Governor Brown signed each bill on October 9, 2015; and WHEREAS, the new legislation expressly preserves local control over medical marijuana facilities and land uses, including the authority to prohibit medical marijuana businesses completely; and WHEREAS, newly-enacted Health and Safety Code Section 11362. 777(c)(4) provides that if a city does not have a land use regulation or ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise under the principles of permissive zoning, or chooses not to administer a conditional permit program, then commencing March 1, 2016, the state Department of Food and Agriculture will be the sole licensing authority for the commercial cultivation of medical marijuana in that jurisdiction; and WHEREAS, under newly-enacted Business and Professions Code section 19340(a), a state-licensed dispensary can only deliver marijuana in a city that does not explicitly prohibit marijuana deliveries by ordinance; and Ordinance No. 16-1008 Page 2 of 7 WHEREAS, the Temple City Municipal Code does not have express provisions regarding medical marijuana cultivation; and WHEREAS, such medical marijuana businesses and activities are not listed as permitted or conditionally permitted land uses in the Temple City Zoning Code and are therefore prohibited in Temple City under principles of permissive zoning (City of Corona v. Naul/s (2008) 166 Cai.App.4th 418, 431-433); and WHEREAS, despite the prohibition against all types of medical marijuana businesses, the City has experienced numerous adverse impacts from medical marijuana establishments that have operated illegally, including medical marijuana cultivation sites; and WHEREAS, such adverse impacts have included hazardous construction and electrical wiring and noxious odors and fumes affecting neighboring properties and businesses; and WHEREAS, other communities have experienced similar, if not worse, adverse impacts resulting from medical marijuana establishments operating both legally and illegally within their jurisdictions, including burglaries, robberies, violence, and illegal diversion of marijuana to minors; and WHEREAS, there is significant evidence that medical marijuana delivery services are also targets of violent crime and pose a danger to the public; and WHEREAS, a California Police Chiefs Association compilation of police reports, news stories, and statistical research regarding crimes involving medical marijuana businesses and their secondary impacts on the community is contained in a 2009 white paper report which is attached to the staff report presented the City Council with this ordinance and on file with the City Clerk; and WHEREAS, the Santa Clara County District Attorney's Office issued a May 2014 memorandum entitled "Issues Surrounding Marijuana in Santa Clara County," which outlined many of the negative secondary effects resulting from marijuana cultivation, a copy of which is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and WHEREAS, the Santa Clara County Public Defender issued a May 2014 memorandum entitled "Substance-Related Suspensions in the East Side Union High School District," describing a correlation between substance abuse-related suspensions in local high schools and a proliferation of medical marijuana dispensaries in the area, a copy of which is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and Ordinance No. 16-1008 Page 3 of 7 WHEREAS, news stories regarding adverse impacts of medical marijuana business, including cultivation sites and delivery services, are attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and WHEREAS, it is reasonable to conclude that similar adverse impacts on the public health, safety, and welfare will likely occur in Temple City should the City lose the ability to regulate or prohibit medical marijuana cultivation facilities and medical marijuana deliveries; and WHEREAS, the City Council has determined that the City's marijuana regulations should include express provisions regarding marijuana cultivation in order to avoid a piecemeal regulatory approach in which certain activities are prohibited expressly while others are prohibited under permissive zoning principles; and WHEREAS, in order to protect the public health, safety, and welfare, the City Council desires to amend Temple City Municipal Code Section 9-1T-7 to prohibit medical marijuana cultivation facilities and to address the new categories of marijuana businesses created by AB 243, AB 266, and SB 643. THE CITY COUNCIL OF THE CITY OF TEMPLE CITY HEREBY ORDAINS AS FOLLOWS: SECTION 1: Temple City Municipal Code section 9-1T-7 is amended to read as provided in Exhibit "A" to this Ordinance, which is incorporated herein by reference. SECTION 2: The City Council hereby declares that, should any provision, section, subsection, paragraph, sentence, clause, phrase, or word of this Ordinance or any part thereof, be rendered or declared invalid or unconstitutional by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, such decision or action shall not affect the validity of the remaining section or portions of the Ordinance or part thereof. The City Council hereby declares that it would have independently adopted the remaining provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words of this Ordinance irrespective of the fact that any one or more provisions, sections, subsections, paragraphs, sentences, clauses, phrases, or words may be declared invalid or unconstitutional. SECTION 3: The proposed Ordinance conforms with the latest adopted general plan for the City in that a prohibition against medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana delivery services does not conflict with any allowable uses in the land use element and does not conflict with any policies or programs in any other element of the general plan. Furthermore, the proposed Ordinance will protect the public health, safety, and welfare in that prohibiting medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana delivery services will protect the Ordinance No. 16-1008 Page 4 of 7 City from the adverse impacts and negative secondary effects connected with these activities. SECTION 4: This Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act ("CEQA") Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. SECTION 5: The City Clerk shall certify to the passage and adoption of this Ordinance and to its approval by the Mayor and shall cause the same to be published according to law. PASSED, APPROVED, AND ADOPTED this 19th day of January, 2016. Tom Chavez, Mayor ATTEST: APPROVED AS TO FORM: Peggy Kuo, City Clerk Eric S. Vail, City Attorney I, Peggy Kuo, City Clerk of the City of Temple City, hereby certify that the foregoing Ordinance No. 16-1008 was introduced at the regular meeting of the City Council of the City of Temple City held on the 5th day of January, 2016, and was duly passed, approved and adopted by said Council at the regular meeting held on the 19th day of January, 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Peggy Kuo, City Clerk Ordinance No. 16-1008 Page 5 of 7 EXHIBIT "A" TITLE 9. ZONING REGULATIONS CHAPTER 1. ZONING CODE ARTICLE T. SPECIAL USES 9-H-7: MEDICAL MARIJUANA FACILITIES AND ACTIVITIES: A. Purpose: The purpose and intent of this section is to prohibit medical marijuana dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries, as defined below, within the city limits. It is recognized that it is a Federal violation under the Controlled Substances Act to possess or distribute marijuana even if for medical purposes. Additionally, there is evidence of an increased incidence of crime-related secondary impacts in locations associated with marijuana cultivation facilities and medical marijuana dispensaries and in connection with medical marijuana deliveries. Such negative impacts are contrary to and undermine policies that are intended to promote and maintain the public's health, safety, and welfare. B. Definitions: COMMERCIAL CANNABIS ACTIVITY: Shall have the meaning set forth in Business and Professions Code section 19300.5(k). CULTIVATION (as defined in this section): Means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. ESTABLISH OR OPERATE A MEDICAL MARIJUANA DISPENSARY (as defined in this section): Means and includes any of the following: 1. The opening or commencement of the operation of a medical marijuana dispensary; 2. The conversion of an existing business, facility, use, establishment, or location to a medical marijuana dispensary; 3. The addition of a medical marijuana dispensary to any other existing business, facility, use, establishment or location. MARIJUANA: Means all parts of the plant 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. It includes marijuana infused in foodstuff. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any Ordinance No. 16-1008 Page 6 of 7 other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. MEDICAL MARIJUANA: Is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code§ 11362.7. MARIJUANA CULTIVATION FACILITY: Means any business, facility, use, establishment or location where the cultivation of marijuana occurs. MEDICAL MARIJUANA DISPENSARY: Means any business, facility, use, establishment or location, whether fixed or mobile, where medical marijuana is made available to, delivered to and/or distributed by or to three or more of the following: a "primary caregiver," "a qualified patient," or a person with an "identification card," as these terms are defined in California Health and Safety Code § 11362.5 and following. A "medical marijuana dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, 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, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code § 11362.5 and following. C. Medical marijuana dispensaries, marijuana cultivation facilities, and medical marijuana deliveries prohibited: 1. Medical marijuana dispensaries are prohibited in all zones in the city and shall not be established or operated anywhere in the city. 2. Marijuana cultivation facilities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. 3. Commercial cannabis activities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. Ordinance No. 16-1008 Page 7 of 7 4. No person may own, establish, open, operate, conduct, or manage a medical marijuana dispensary or marijuana cultivation facility in the city, or be the lessor of property where a medical marijuana dispensary or marijuana cultivation facility is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical marijuana dispensary or marijuana cultivation facility in the city. 5. No use permit, site development permit, tentative map, parcel map, variance, grading permit, building permit, building plans, zone change, business license, certificate of occupancy or other applicable approval will be accepted, approved or issued for the establishment or operation of a medical marijuana dispensary or marijuana cultivation facility. 6. No person and/or entity may deliver or transport medical marijuana from any fixed or mobile location, either inside or outside the city, to any person in the city, except that a person may deliver or transport medical marijuana to a qualified patient or person with an identification card, as those terms are defined in Health and Safety Code section 11362.7, for whom he or she is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362. ?(d). 7. Nothing contained in this section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. D. Enforcement: The city may enforce this section in any manner permitted by law. The violation of this section shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief. City Council January 5, 2016 Page 2 of 4 licensing system governing the cultivation, testing, and distribution of medical marijuana; the manufacturing of marijuana products; and physician recommendations for medical marijuana. Governor Brown signed the three bills on October 9, 2015. ANALYSIS: Under the new legislation of AB 243, AB 266, and SB 643, state licenses and local permits will be required for all facets of the medical marijuana industry. AB 243 establishes the Department of Food and Agriculture (DFA) as the licensing and regulatory authority for medical marijuana cultivation. Any person who wishes to engage in commercial cultivation of medical marijuana must obtain a state license from the DFA. AB 243 also requires: 1) the DFA to work with other state agencies to develop environmental protection standards, 2) the Department of Pesticide Regulation to establish medical marijuana pesticide standards, and 3) the Department of Public Health (DPH) to create standards for labeling of marijuana edibles. AB 266 creates the Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to develop regulations and issue state licenses for medical marijuana dispensaries, distributors, and transporters. AB 266 designates the DPH as the licensing and regulatory authority for manufacturers of marijuana products and medical marijuana testing laboratories. Like AB 243, AB 266 requires all state marijuana license applicants to comply with local permitting requirements. SB 643 establishes standards for physicians that recommend medical marijuana, including discipline for physicians who recommend excessive amounts. SB 643 also creates standards for state license applications and enforcement. Taken together, the new legislation creates the Medical Marijuana Safety and Regulation Act, which has been codified as Business and Professions Code Section 19300 et seq. The new legislation preserves local control over marijuana facilities and land uses, including the authority to prohibit dispensaries and other medical marijuana businesses completely. The TCMC currently prohibits all medical marijuana businesses, either expressly under Section 9-1T-7 or under the principles of permissive zoning (i.e. any use not expressly permitted by the Zoning Code is deemed prohibited). The proposed Zoning Code amendment would continue that policy in express terms to avoid a piecemeal regulatory approach and ensure that all medical marijuana facilities and activities are expressly prohibited. Medical Marijuana Cultivation AB 243 provides that if a city does not have a land use ordinance or regulation that regulates or prohibits medical marijuana cultivation, then the DFA shall become the sole licensing authority for cultivation applicants in that jurisdiction commencing March 1, 2016. The proposed Zoning Code amendment would prohibit medical marijuana City Council January 5, 2016 Page 3 of 4 cultivation facilities throughout all zones in the City. The proposed definition of medical marijuana cultivation facilities includes cultivation by individuals at their private residences. The Court of Appeal in Mara/ v. City of Live Oak (2012) 221 Cai.App.4th 975, upheld an identical complete ban on cultivation activities. The City has discretion to create exceptions to the definition if deemed appropriate. In the City's experience, medical marijuana dispensaries and cultivation sites pose significant threats to public health. This is consistent with reports from other communities that have had marijuana businesses, as documented in a white paper from the California Police Chiefs Association (Attachment "B"), memoranda from the Santa Clara County District Attorney and Public Defender (Attachment "C"), and various news stories (Attachment "D"). Staff recommends that the City address medical marijuana cultivation facilities in the same Zoning Code section that addresses medical marijuana dispensaries. The proposed ordinance amends TCMC Section 9-1T-7 accordingly. Medical Marijuana Deliveries AB 266 states that medical marijuana deliveries can only be made by a state-licensed dispensary in a city that does not explicitly prohibit it by local ordinance. A city is required to have an express delivery ban if it wants to prevent such activities from occurring within its boundaries. Temple City currently prohibits mobile dispensaries, and the proposed ordinance would continue the prohibition on the delivery of medical marijuana within the City, with an exception for deliveries by a primary caregiver to his or her qualified patients. Commercial Cannabis Activities Finally, the proposed Zoning Code amendment would prohibit "commercial cannabis activities," as defined in newly-enacted Business and Professions Code section 19300.5(k). Under the new law, commercial cannabis activity is defined broadly as including "cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in Section 19319, related to qualifying patients and primary caregivers." An express prohibition on commercial cannabis activities will avoid any confusion about the City's policy on marijuana businesses. Planning Commission Consideration The Planning Commission was scheduled to hold a public hearing to consider the proposed ordinance on December 22, 2015. Staff will notify the City Council of the Planning Commission's recommendation as part of the presentation at the City Council meeting. City Council January 5, 2016 Page 4 of 4 CITY STRATEGIC GOALS: Adopting the proposed ordinance would further the City Strategic Goals of Public Health and Safety and Quality of Life. FISCAL IMPACT: The proposed ordinance would have no impact on the Fiscal Year 2015-16 City Budget. ATTACHMENTS: A. Ordinance No. 16-1008 B. California Police Chiefs Association white paper (2009) C. Memoranda from Santa Clara County District Attorney and Public Defender (2014) D. Assorted news stories