HomeMy WebLinkAboutOrd 01-16 Amend Medical Marijuana Dispensaries ORDINANCE NO. 1 — 16
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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AMENDING CHAPTERS 5.58 (MEDICAL MARIJUANA DISPENSARIES), CHAPTER 8.08
(DEFINITIONS) AND CHAPTER 8.12 (ZONING DISTRICTS AND PERMITTED USES OF
LAND) OF THE DUBLIN MUNICIPAL CODE TO REGULATE MEDICAL MARIJUANA
DISPENSARIES, DELIVERIES AND CULTIVATION
WITHIN THE CITY OF DUBLIN
WHEREAS, Health and Safety Code section 11362.5 , the Compassionate Use Act of 1996
("CUA"), adopted by the voters in the State of California, authorizes a limited defense to criminal
charges for the use, possession or cultivation of marijuana for medical purposes when a qualified
patient has a doctor's recommendation for the use of marijuana; and
WHEREAS, Health and Safety Code section 11362.7 et seq., the Medical Marijuana
Program Act ("MMPA"), was adopted by the state legislature and offers some clarification on the
scope of the Compassionate Use Act of 1996, and section 11362.83 specifically authorizes cities
and other governing bodies to adopt and enforce rules and regulations related to medical marijuana;
and
WHEREAS, neither the CUA or the MMPA prevent a city from enacting nuisance and land
use regulations regarding medical marijuana cultivation or dispensaries; and
WHEREAS, the Legislature recently passed, and the Governor signed, several bills
regulating the commercial activity of medical marijuana, including Assembly Bill 243, which assigns
certain state agencies with regulatory task regarding commercial medical marijuana, including
product labeling and environmental regulation; and
WHEREAS, Section 6 of AB 243 adds Health and Safety Code section 11362.777, which
puts the California Department of Food and Agriculture ("DFA") in charge of licensing of both indoor
and outdoor cultivation sites in the state; and
WHEREAS, Health and Safety Code section 11362.777 provides that the DFA shall be the
sole licensing authority for medical marijuana cultivation within a city if that city does not have land
use regulations or ordinances regulating or prohibiting the cultivation of marijuana in effect on March
1, 2016; and
WHEREAS, Chapter 5.58 of the Municipal Code currently explicitly prohibits medical
marijuana dispensaries in the City; and
WHEREAS, the Municipal Code allows certain agricultural uses within the City, but medical
marijuana cultivation is not an existing allowed use; and
WHEREAS, the City Council desires to retain local control over the cultivation of medical
marijuana, and therefore desires to adopt a land use ordinance regulating or prohibiting marijuana
cultivation that will be in effect before March 1, 2016; and
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WHEREAS, the cultivation of medical marijuana in other cities has resulted in calls for
service to the police department, including calls for robberies and thefts; and
WHEREAS, medical marijuana cultivation could pose safety risks for surrounding neighbors,
including but not limited to, risks of violent confrontation in connection with attempts to steal
marijuana and the risk of fire from improperly wired electrical lights within structures growing
marijuana; and
WHEREAS, the ability to obtain marijuana for medical purposes is available in other
jurisdictions within a short drive of the City; and
WHEREAS, there is a threat to the public health, safety and welfare of the community if
medical marijuana is cultivated in the City without proper regulations, and such unregulated
cultivation which may result in harmful effects to the businesses, property owners and residents of
the City; and
WHEREAS,Article XI, Section 7 of the California Constitution provides a city may make and
enforce within it limits all local police, sanitary and other ordinances and regulations not in conflict
with general laws; and
WHEREAS, the City Council desires to confirm that the cultivation of marijuana is illegal
within the city and enact an explicit prohibition on the cultivation of medical marijuana within the
City; and
WHEREAS,the City Council has the authority to amend a prohibition in effect before March
1, 2016, and such amendment may allow certain types of cultivation, but if no regulation or
prohibition is in effect before March 1, 2016, the City could permanently lose the authority to license
and regulate medical marijuana cultivation within the City; and
WHEREAS, Staff has advised that members of the public are sometimes unaware of the
City's existing prohibition on medical marijuana dispensaries because it is not contained in the City's
Zoning Ordinance and that the existing definition of a medical marijuana dispensary causes
occasional confusion; and
WHEREAS, the City Council desires to add the existing prohibition on medical marijuana
dispensaries within the City to the Zoning Ordinance and rephrase the definition of medical
marijuana dispensary to eliminate any confusion; and
WHEREAS, Business and Professions Code section 19340 authorizes licensed medical
marijuana dispensaries to make medical marijuana deliveries in any city that does not explicitly
prohibit it; and
WHEREAS, the City Council desires to prohibit medical marijuana deliveries within the City;
and
WHEREAS, the Planning Commission held a duly noticed public hearing on the Title 8
Zoning Ordinance amendments on December 8, 2015, at which time all interested parties had the
opportunity to be heard. Following the public hearing, the Planning Commission approved
Resolution 15-15 recommending that the City Council adopt the amendments; and
WHEREAS, the City Council held a duly noticed public hearing on the proposed Title 5 and
Title 8 amendments on January 19, 2016, at which time all interested parties had the opportunity to
be heard.
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NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows:
SECTION 1:
The above recitals are true and correct and incorporated herein.
SECTION 2:
Chapter 5.58 of the Dublin Municipal Code is hereby amended to read as follows(with text in
strikeout format indicating deletion and italicized text indicating addition):
Chapter 5.58 Medical Marijuana Dispensaries and Cultivation
5.58.010 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, the following
definitions shall apply:
A. "Medical marijuana" is marijuana authorized in strict compliance with Health and Safety Code
Section 11362.5 et seq.
B. "Medical marijuana delivery" means the transfer of medical marijuana or medical marijuana
products from a medical marijuana dispensary to a qualified patient or primary caregiver, as well as
the use by a dispensary of any technology platform to arrange for orfacilitate the transfer of medical
marijuana or medical marijuana products.
CB. "Medical marijuana dispensary" means any facility or location,whether fixed or mobile,where
medical marijuana is made available to, distributed by, or distributed to two (2) or more efe
- - - - - - - • - - qualified
patients, persons with an identification card, or primary caregivers, or combination thereof.
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.
D. "Medical marijuana cultivation"means any activity involving the planting, growing, harvesting,
drying, curing, grading or trimming of medical marijuana.
ES. "Person with an identification card" shall have the meaning given that term by Health and
Safety Code Section 11362.7.
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F . "Primary caregiver" shall have the meaning given that term by Health and Safety Code
Section 11362.7.
G€. "Qualified patient"shall have the meaning given that term by Health and Safety Code Section
11362.7.
5.58.020 Operation of medical marijuana dispensaries prohibited.
No person shall operate or permit to be operated a medical marijuana dispensary in or upon any
premises or property in the city.
5.58.030 Medical marijuana cultivation prohibited.
No person shall engage in medical marijuana cultivation in or upon any premises or property in the
city.
5.58.040 Medical marijuana delivery prohibited.
No person shall engage in medical marijuana delivery in or upon any premises or property in the
city
SECTION 3:
Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code is hereby amended to
add the following definitions:
Medical Marijuana Dispensary. See Section 5.58.010(C).
Medical Marijuana Cultivation. See Section 5.58.010(D).
SECTION 4:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to add Medical Marijuana Cultivation as an Agricultural Use
Type and to prohibit the use in every zoning district, to read as follows:
AGRICULTURAL A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
USE TYPE
Medical Marijuana - - - - - - - - - - -
Cultivation
SECTION 5:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to add Medical Marijuana Dispensary as a Commercial Use
Type and to prohibit the use in every zoning district, to read as follows:
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COMMERCIAL A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
USE TYPE
Medical Marijuana - - - - - - - - - - -
Dispensary
SECTION 6: Severability.
The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part
thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such
illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the
remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their
applicability to other persons or circumstances.
SECTION 7: CEQA.
This Ordinance is exempt from the California Environmental Quality Act (CEQA) per CEQA
Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those
projects that have the potential to cause a significant effect on the environment. The adoption of
the proposed Ordinance is exempt from CEQA because the adoption of the proposed amendments
to the Municipal Code does not, in itself, allow the construction of any building or structure or
authorize any activity, but rather prohibits the cultivation and delivery of medical marijuana within
the City. This Ordinance , therefore, has no potential for resulting in significant physical change in
the environment, directly or ultimately.
SECTION 8: Effective Date and Posting of Ordinance
This Ordinance shall take effect and be in force thirty (30) days from and after the date of its final
adoption. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least
three (3) public places in the City of Dublin in accordance with Section 39633 of the Government
Code of California.
PASSED, APPROVED, AND ADOPTED this 19th day of January, 2016, by the following
vote:
AYES: Councilmembers Biddle, Gupta, Hart, and Wehrenberg
NOES: None
ABSENT: Mayor Haubert
ABSTAIN: None
ayor Pro Tempore
ATTEST:
t .FUD( City Cle � 1
Ord No. 1-16,Adopted 1-19-16, Item 6.2 Page 5 of 5