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Home My WebLink AboutOrd 09-16 Amending Marijuana Municipal Codes ORDINANCE NO. 9 — 16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING CHAPTERS 5.58, 8.08 AND 8.12 OF THE DUBLIN MUNICIPAL CODE RELATING TO NON-MEDICAL MARIJUANA DELIVERIES, BUSINESSES AND CULTIVATION AND TO MEDICAL MARIJUANA BUSINESSES 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, Business and Professions Code section 19300 et seq., the Medical Marijuana Regulation and Safety Act ("MMRSA"), which was adopted by the Legislature in 2015, regulates commercial activities associated with medical marijuana and assigns certain state agencies with regulatory tasks regarding commercial medical marijuana, including product labeling and environmental regulation. WHEREAS, the CUA, MMPA, and MMRSA do not prevent a city from using its constitutional authority to enact nuisance and land use regulations regarding medical marijuana cultivation, dispensaries or commercial businesses, including the ability to enact a prohibition on such activities. WHEREAS, the MMRSA, among other matters, authorizes certain state agencies to issue licenses for commercial medical marijuana businesses, and Business and Professions Code section 19320 requires commercial medical marijuana businesses to obtain a state license and any necessary permit, license, or authorization from the local jurisdiction in which the business operates. WHEREAS, Business and Professions Code section 19316 specifically recognizes that a city may regulate commercial medical marijuana businesses pursuant to the police power granted to cities in Section 7 of Article XI of the California Constitution. Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 1 of 12 WHEREAS, the Control, Regulate and Tax Adult Use of Marijuana Act has qualified for the November 8, 2016 ballot as Proposition 64; and WHEREAS, if adopted by the voters, Proposition 64 will legalize the recreational use of marijuana in California for individuals 21 years of age and older; and WHEREAS, Proposition 64 would authorize the personal cultivation of up to six marijuana plants in a private residence for non-medical purposes; and WHEREAS, pursuant to Proposition 64, the City can enact reasonable regulations for the cultivation of non-medical marijuana that occurs inside a residence or accessory structure, and may completely prohibit outdoor non-medical marijuana cultivation until such time as the California Attorney General determines that the non-medical use of marijuana is lawful in California under federal law; and WHEREAS, the California Attorney General has not made a determination that non- medical use of marijuana is lawful in California under Federal law; and WHEREAS, if adopted by the voters, Proposition 64 would regulate the commercial activity of non-medical marijuana and assign certain state agencies with regulatory tasks regarding commercial non-medical marijuana, including product labeling and environmental regulation; and WHEREAS, Proposition 64 would authorize certain state agencies to issue licenses for commercial non-medical marijuana businesses; and WHEREAS, Proposition 64 would adopt Business and Professions Code section 26200, which would specifically recognize that a city may regulate or completely prohibit the establishment or operation of one or more types of non-medical marijuana businesses licensed by the state within the city's jurisdiction; and WHEREAS, Proposition 64 would authorize certain licensed businesses to make deliveries of non-medical marijuana, if such businesses are acting in compliance with local law adopted pursuant to Business and Professions Code section 26200; and WHEREAS, Sections 5.58.030 and 8.12.050 of the Dublin Municipal Code prohibit medical marijuana cultivation in or upon any premises or property in the City; and WHEREAS, Sections 5.58.020 and 8.12.050 of the Dublin Municipal Code prohibit medical marijuana dispensaries from operating in or upon any premises or property in the City; and WHEREAS, Sections 5.58.040 of the Dublin Municipal Code prohibits medical marijuana delivery in or upon any premises or property in the City; and Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 2 of 12 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 it is reasonable to assume that the cultivation of non-medical marijuana, the operation of marijuana businesses of any kind, and the delivery of non-medical marijuana will have similar impacts; and WHEREAS, there is a threat to the public health, safety and welfare of the community if marijuana businesses of any kind operate in the City or if non-medical marijuana deliveries are made in the City or if non-medical marijuana is cultivated without regulations in the City, and such activities may result in harmful effects to 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 its limits all local police, sanitary and other ordinances and regulations not in conflict with general laws; and WHEREAS, the City Council desires to exercise its authority under Article XI, Section 7 of the California Constitution and Business and Professions Code sections 9316 and 26200 to prohibit all commercial medical marijuana businesses and commercial non- medical marijuana businesses from operating in the City of Dublin, and to also prohibit the delivery of non-medical marijuana in the City of Dublin; and WHEREAS, the City Council desires to adopt regulations regarding the indoor cultivation of non-medical marijuana in a private residence and to prohibit all other forms of non-medical marijuana cultivation; and WHEREAS, the City Council also desires to rename the medical marijuana dispensary and medical marijuana cultivation use types, without changing any substantive provisions related to such uses; and WHEREAS, the City Council desires that those portions of this ordinance regarding non-medical marijuana shall only take effect if Proposition 64 is approved by the voters of California at the election occurring on November 8, 2016; and WHEREAS, the Planning Commission held a duly noticed public hearing on the proposed amendments on September 13, 2016, at which time all interested parties had the opportunity to be heard. Following the public hearing, the Planning Commission recommended that the City Council adopt the amendments; and WHEREAS, the City Council held a duly noticed public hearing on the proposed amendments on October 4, 2016 at which time all interested parties had the opportunity to be heard. NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows: Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 3 of 12 SECTION 1: The above recitals are true and correct and incorporated herein. SECTION 2: Section 5.58.010, Definitions, of the Dublin Municipal Code is hereby amended to include the following definition: "Commercial medical marijuana business" means any activity licensed pursuant to the Medical Cannabis Regulation and Safety Act, Business and Professions Code section 19300 et seq., including but not limited to medical marijuana cultivation, distribution, manufacturing, transporting and testing. SECTION 3: Section 5.58.050, Operation of commercial medical marijuana businesses prohibited, is hereby added to the Dublin Municipal Code to read as follows: 5.58.050 Operation of commercial medical marijuana businesses prohibited. No person shall operate or permit to be operated a commercial medical marijuana business in or upon any premises or property in the city. SECTION 4: Chapter 5.58 of the Dublin Municipal Code is hereby amended to read as follows (with text in strikeGut format indicating deletion and underlined text indicating addition): Chapter 5.58 Medical Marijuana Regulations 5.58.010 Definitions. For the purposes of this chapter, unless otherwise apparent from the context, the following definitions shall apply: A. "Commercial medical mariivana business" means any activity licensed pursuant to the Medical Cannabis Regulation and Safety Act. Business and Professions Code section 19300 et seq., including but not limited to medical marijuana cultivation. distribution. manufacturing, transporting and testing B. "Commercial non-medical marijuana business" means any activity licensed by Business and Professions Code section 26000 et seq., including but not limited to non- Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 4 of 12 medical marijuana cultivation. distribution. manufacturing, retail. testing, and operation of a microbusiness. C. "Fully enclosed and secure structure means" a space within a building that complies with the applicable building code, and has a complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments. is secure against unauthorized entry, and is accessible only through one or more lockable doors. Walls and roof must be constructed of solid materials that cannot be easily broken through, and must be constructed with non-transparent material. D. "Indoors" means inside a fully enclosed and secure structure or within a private residence. EA. "Medical marijuana" is marijuana authorized in strict compliance with Health and Safety Code Section 11362.5 et seq. FB. "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 or facilitate the transfer of medical marijuana or medical marijuana products. GG. "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 e • - - - • : - - - - -- - • - -- - • • • - • - - • -- •e • e, e p-r-imaPy-saregiver-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. HD. "Medical marijuana cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading or trimming of medical marijuana. Outdoors means any location within the city that is not within a fully enclosed and secure structure or a private residence. Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 5 of 12 I. "Non-medical marijuana" means marijuana that is intended to be used for non- medical purposes pursuant to Health and Safety Code section 11362.1 et seq. J. "Non-Medical Marijuana Cultivation" means the planting, growing, harvesting, drying or processing of marijuana plants or any part thereof pursuant to Health and Safety Code section 11362.1 et seq., as those sections may be amended from time to time. K. "Non-medical marijuana delivery" means the commercial transfer of non-medical marijuana or non-medical marijuana products to a person. including any technology that enables persons to arrange for or facilitate the commercial transfer of non-medical marijuana or non-medical marijuana products. L. "Non-medical marijuana products" means non-medical marijuana that has undergone a process whereby the plant material has been transformed into a concentrate. including, but not limited to. concentrated cannabis. or an edible or tropical product containing marijuana or concentrated cannabis and other ingredients. M . "Person with an identification card" shall have the meaning given that term by Health and Safety Code Section 11362.7. N. "Person" means any individual. partnership, co-partnership, firm. association. joint stock company, corporation, limited liability corporation, collective, cooperative, or combination thereof in whatever form or character. O . "Primary caregiver" shall have the meaning given that term by Health and Safety Code Section 11362.7. P. "Private residence" means a house. an apartment unit. a mobile home or other similar dwelling. Q6. "Qualified patient" shall have the meaning given that term by Health and Safety Code Section 11362.7. R. "Solid fence "means a fence constructed of substantial material. such as wood or metal. that prevents viewing the contents from one side to the other side of the fence. 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. Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 6 of 12 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 5.58.050 Operation of commercial medical marijuana businesses prohibited. No person shall operate or permit to be operated a commercial medical marijuana business in or upon any premises or property in the city. 5.58.060 Non-medical marijuana delivery prohibited. No person shall engage in non-medical marijuana delivery in or upon any premises or property in the city. 5.58.070 Operation of commercial non-medical marijuana businesses prohibited. No person shall operate or permit to be operated a commercial non-medical marijuana business in or upon any premises or property in the city. 5.58.080 Outdoor non-medical marijuana cultivation. No person shall engage in outdoor non-medical marijuana cultivation in or upon any premises or property in the city. 5.58.090 Indoor non-medical marijuana cultivation. No person shall engage in the indoor cultivation of non-medical marijuana in or upon any premises or property in the city, except when such cultivation occurs on a premises or property with an approved private residence. Such cultivation shall be in conformance with the following minimum standards: A. The primary use of the property shall be for a residence. Non-medical marijuana cultivation is prohibited as a home occupation. B. All areas used for cultivation of non-medical marijuana shall comply with all chapter of Title 7 (Public Works) of the Dublin Municipal Code, as well as applicable law. C. Indoor grow lights shall not exceed 1.000 watts per light. and shall comply with the California Building, Electrical and Fire Codes as adopted by the city. Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 7 of 12 D. The use of gas products (CO,. butane. propane. natural gas. etc.) or generators for cultivation of non-medical marijuana is prohibited. E. Any fully enclosed and secure structure or residential structure used for the cultivation of non-medical marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and that system shall comply with all chapters of Title 7 (Public Works) of the Dublin Municipal Code. F. A fully enclosed and secure structure used for the cultivation of non-medical marijuana shall be located in the rear yard area of the parcel or premises. and must maintain a minimum ten-foot setback from any property line and otherwise comply with all chapters of Title 8 (Zoning Code). The yard where the fully enclosed and secure structure is maintained must be enclosed by a solid fence at least six feet in height. This provision shall not apply to cultivation occurring in a garage. G. Adequate mechanical locking or electronic security systems must be installed as part of the fully enclosed and secure structure or the residential structure prior to the commencement of cultivation. H. Non-medical marijuana cultivation shall be limited to six marijuana plants per private residence. regardless of whether the marijuana is cultivated inside the residence or a fully enclosed and secure structure. The limit of six plants per private residence shall apply regardless of how many individuals reside at the private residence. I. The residential structure shall remain at all times a residence, with legal and functioning cooking, sleeping and sanitation facilities with proper ingress and egress. These rooms shall not be used for non-medical marijuana cultivation where such cultivation will prevent their primary use for cooking of meals. sleeping and bathing. J. Cultivation of non-medical marijuana shall only take place on impervious surfaces. K. From a public right-of-way, there shall be no exterior evidence of non-medical marijuana cultivation occurring on the parcel. L. Non-medical marijuana cultivation area, whether in a fully enclosed and secure structure or inside a residential structure. shall not be accessible to persons under 21 years of age. M. Written consent of the property owner to cultivate non-medical marijuana within the residential structure shall be obtained and shall be kept on the premises. and available for inspection by the chief of police or his/her designee. Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 8 of 12 N. A portable fire extinguisher, that complies with the regulations and standards adopted by the state fire marshal and applicable law, shall be kept in the fully. enclosed and secure structure used for cultivation of non-medical marijuana. If cultivation occurs in a residential structure, the portable fire extinguisher shall be kept in the same room as where the cultivation occurs. SECTION 5: Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code is hereby amended to add the following definitions: Marijuana- Non-Medical Cultivation. See definition of "non-medical marijuana cultivation" in Section 5.58.010. Marijuana- Non-Medical Cultivation must be in compliance with the requirements of Chapter 5.58. Marijuana - Commercial Non-Medical Business. See definition of "commercial non- medical marijuana business" in Section 5.58.010. SECTION 6: Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code is hereby amended to add the following definitions: Marijuana - Commercial Medical Business. See definition of "commercial medical marijuana business" in Section 5.58.010. SECTION 7: The following definitions contained in Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code are hereby amended to read as follows (with text in strikeout format indicating deletion and underlined text indicating addition): Marijuana - Medical Marijuana Cultivation. See definition of "medical marijuana cultivation" in Section 5.58.010(4). Marijuana - Medical Marijuana Dispensary. See definition of "medical mariivana dispensary" in Section 5.58.010(5-}. SECTION 8: Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin Municipal Code is hereby amended to add Non-Medical Marijuana Cultivation as an Agricultural Use Type and to establish the zoning districts in which such use is allowed, to read as follows: Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 9 of 12 AGRICULTURAL A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2 USE TYPE Marijuana- P P p p - - P P P P P Non-Medical Cultivation (up to 6 plants)3 s Non-medical marijuana cultivation must comply with all regulations contained in Chapter 5.58. SECTION 9: Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin Municipal Code is hereby amended to add Commercial Medical Marijuana Businesses as a Commercial Use Type and to prohibit the use in every zoning district, to read as follows: COMMERCIAL A R-1 R-2 R-M C-0 C-N C-1 C-2 M-P M-1 M-2 USE TYPE Marijuana- - - - - - - - - - - - Commercial Medical Business SECTION 10: Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin Municipal Code is hereby amended to add Commercial Non-Medical Marijuana Businesses as a Commercial Use Type and to prohibit the use in every zoning district, to read as follows: COMMERCIAL A R-1 R-2 R-M C-0 C-N C-1 C-2 M-P M-1 M-2 USE TYPE Marijuana- - - - - - - - - - - - Commercial Non-Medical Business SECTION 11: Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin Municipal Code is hereby amended to change the name of the "medical marijuana cultivation" use contained in the Agricultural Use Types table and the name of the "medical marijuana dispensary" use contained in the Commercial Use Types table, to read as Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 10 of 12 follows (with text in strikeout- format indicating deletion and underlined text indicating addition): AGRICULTURAL A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2 USE TYPE Marijuana — - - - - - - - - - - - Medical Marijuana Cultivation COMMERCIAL A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2 USE TYPE Marijuana- - - - - - - - - - - - Medical Mafijuana Dispensary SECTION 12: 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 13: 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 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 14: Effective Date and Posting of Ordinance This Ordinance shall be in full force and effective thirty (30) days after its adoption, except that Sections 4, 5, 7, 8 and 10 of this Ordinance shall only become operative upon adoption of Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, by the voters of California at the election occurring on November 8, 2016. The City Clerk of the City of Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 11 of 12 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 BY the City Council of the City of Dublin on this 4th day of October 2016, by the following vote: AYES: Councilmembers Biddle, Gupta, Hart, Wehrenberg and Mayor Haubert NOES: ABSENT: ABSTAIN: ayor ATTEST: g4/1/0 /e6r-61#t City Clerk 2702855.3 Ord No. 9-16, Adopted 10/4/2016, Item No. 6.1 Page 12 of 12