HomeMy Public PortalAbout07) 7D Medical Marijuana Facilities and ActivitiesCity Council
January 19, 2016
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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