HomeMy WebLinkAbout07 - PH-1 - Urgency Ord. to Adopt Code Amendment CO- - 1/3/2017CITY COUNCIL AGENDA REPORT
MEETING DATE: JANUARY 3, 2017 ITEM NUMBER:
SUBJECT: AN URGENCY ORDINANCE TO ADOPT CODE AMENDMENT CO -XX -XX: AN
AMENDMENT TO TITLE 13 OF THE COSTA MESA MUNICIPAL CODE RELATED TO
CULTIVATION OF MARIJUANA AND/OR MEDICAL MARIJUANA
DATE: DECEMBER 16, 2016
FROM: CITY ATTORNEYS OFFICE AND DEVELOPMENT SERVICES DEPARTMENT
PRESENTATION BY: JAY TREVINO, DEVELOPMENT SERVICES
DEPARTMENT
TARQUIN PREZIOSI, ASSISTANT CITY ATTORNEY
FOR FURTHER INFORMATION CONTACT: JAY TREVINO, (714) 754-5278
0ay.trevino(qcostamesaca.gov
SUMMARY
On November 8, 2016, voters approved two initiatives related to marijuana that effect
the City of Costa Mesa: Costa Mesa Measure X and State Proposition 64, the "Control,
Regulate and Tax Adult Use of Marijuana Act" ("Prop 64" or "AUMA"). This report
focuses on Proposition 64. AUMA allows adults 21 years and over to use, possess,
and cultivate limited amounts of marijuana; it will also allow sales and other activities by
January 1, 2018. Staff recommends adoption of an urgency ordinance prohibiting all
marijuana uses that are or will be authorized by Proposition 64, except as preempted by
state law, or as authorized by Measure X.
RECOMMENDATION
Introduce and adopt Urgency Ordinance XX to adopt Code Amendment CO -XX
amending Costa Mesa Municipal Code Title 13, Article 20 of Chapter IX, Special Land
Use Regulations.
BACKGROUND
AUMA has two primary components: (1) a right to non-medical/recreational marijuana
use, possession, and cultivation, and (2) a state licensing and taxing scheme for non-
medical/recreational marijuana businesses similar to those licensed by the state under
the Medical Marijuana Regulation and Safety Act ("MMRSA"). AUMA also reduces
criminal penalties for specified marijuana crimes, including possession and use of
marijuana by minors.
Non-medical/Recreational Use and Cultivation of Marijuana
AUMA decriminalizes the possession, processing, transporting, purchasing, obtaining or
giving away of not more than 28.5 grams of marijuana or 8 grams of marijuana in the
form of concentrated by persons 21 years of age or older.' It also permits persons 21
year and older to cultivate up to 6 plants indoors or outdoors on the grounds of a private
residence. Health and Safety Code section 11362.2 limits the total number of plants
grown at any one single private residence (which is defined to include a house,
apartment unit, mobile home, or other similar dwelling) to no more than six (6) plants.
AUMA specifically prohibits cities and counties from completely prohibiting indoor
cultivation for non-medical use, but allows cities and counties to completely ban
cultivation outdoors upon the grounds of a private residence.2 AUMA allows cities and
counties to enact and enforce reasonable regulations to regulate the indoor cultivation
of marijuana for non-medical use.3 However, the parameters of what type of regulation
is allowed by local entities is not set forth in AUMA.
AUMA prohibits smoking or ingesting marijuana or marijuana products in the following
places:
• In any public place (unless in inside a business that is authorized by state and
local law to allow use of marijuana on its premises);
• In places where smoking tobacco is prohibited;
• Within 1,000 feet of a school, day care center, or youth center while children are
present, except in or upon the grounds of a private residence or inside a
business that is authorized by state and local law to allow the use of marijuana
on its premises; and
• While driving in, operating, or riding in a motor vehicle, boat, vessel, aircraft or
other vehicle.4
AUMA also allows cities, counties and public employers to maintain a drug and alcohol
free workplace and to have policies prohibiting the use of marijuana by employees and
prospective employees.5
Non -Medical Marijuana Businesses
The second primary component of AUMA is a newly established state licensing and
regulation scheme for commercial non-medical marijuana businesses, similar to the
categories of businesses permitted under MMRSA.6 AUMA renames the Bureau of
Medical Marijuana Regulation the Bureau of Marijuana Control and charges them with
1 Health and Safety Code § 11362.1.
2 Health & Safety Code § 11362.2(b)(2) and (3).
3 Health & Safety Code § 11362.2(b)(1).
4 Health & Safety Code § 11362.3.
5 Health & Safety Code § 11362.45.
6 Business & Professions Code § 26000 et seq.
issuing licenses to marijuana -related retail, manufacturing, distribution, transport,
dispensary and delivery businesses catering to recreational users in addition to
licensing medical marijuana businesses.' The Department of Food and Agriculture is
tasked with issuing licenses to non-medical marijuana cultivation businesses. AUMA
requires all state licensing authorities to issue licenses by January 1, 2018.8
AUMA permits local jurisdictions to adopt and enforce local ordinances to regulate
recreational marijuana businesses, including local zoning and land use requirements,
business license requirements, and requirements related to reducing exposure to
second hand smoke. AUMA also expressly authorizes cities and counties to completely
rp ohibit the establishment or operation of businesses within their jurisdictions.9
AUMA imposes a 15% state tax on the retail sales of non-medical marijuana. Funds
from the tax will be used in part to fund research on the health effects of marijuana.
AUMA does not prohibit local taxes of non-medical marijuana.10
Costa Mesa Municipal Code
The Costa Mesa Municipal Code ("CMMC") currently prohibits medical and recreational
marijuana cultivation, both indoors or outdoors, in all areas in the City." The CMMC
prohibits the operation of medical marijuana dispensaries.12 With the adoption of
Measure X, the City established a specific area within which medical marijuana
distributors, manufacturers, processors, research and development laboratories, testing
laboratories and transporters may be located. The area within which these businesses
may be located include the Manufacturing Park (MP) and Planned Development
Industrial (PDI) zones located north of South Coast Drive and west of Harbor
Boulevard, excluding any portion of the South Coast Collection. While marijuana
possession, use and limited cultivation is now allowed under state law, staff
recommends that the City temporarily prohibit indoor cultivation under the CMMC
except as allowed by state law, and all outdoor cultivation, pending further analysis of
regulatory options and approaches. Further, while certain marijuana related businesses
are allowed under Measure X, staff believes that it is in the City's best interest to
prohibit all other marijuana related businesses pending further analysis of regulatory
options, approaches and tax implications.
ANALYSIS
The proposed amendment to the Zoning Code is intended to preserve the status quo
and prohibit all marijuana related uses within the City to the extent allowable under
state law. The proposed amendment also resolves any potential conflict between the
new provisions of the Health and Safety Code and the CMMC regarding cultivation. The
7 Business & Professions Code § 26010.
8 Business & Professions Code § 26012(c).
9 Business & Professions Code § 26200.
10 Proposed Revenue & Taxation Code § 34021 and 34021.5.
11 CMMC 13.200.87.
12 CMMC 13-30 table 31 (a).
proposed amendment does not conflict with the provisions of Measure X. Government
Code §65858 provides that urgency ordinances be adopted for a period of 45 days. An
urgency ordinance can later be extended should the City Council determine an
extension is warranted. Staff will begin the study of marijuana cultivation and marijuana
related businesses right away and will report to the City Council at the February 7, 2016
meeting as to whether an extension of the urgency ordinance may be necessary.
PUBLIC NOTICE
Publication of the public hearing notice once in the Orange Coast Daily Pilot at least ten
(10) days prior to the date of hearing as required by law. At the time of publication of this
report, no public comments have been received. Any correspondence will be forwarded
to the City Council under separate cover.
ENVIRONMENTAL DETERMINATION
The project has been reviewed for compliance with the California Environmental Quality
Act (CEQA), the CEQA guidelines, and the City's environmental procedures, and has
been found to be exempt pursuant to Section 15061(b)(3) (general rule) of the CEQA
Guidelines, in that it can be seen with certainty that there is no possibility that the
proposed amendment to the Zoning Code will have a significant effect on the
environment.
ALTERNATIVES CONSIDERED:
The City Council could forego adoption of the urgency ordinance, and direct staff to
study the issues and return with appropriate recommendations. This alternative would
allow marijuana cultivation and marijuana businesses to proceed pending the future
adoption of any regulations as determined by the City Council.
FISCAL REVIEW:
The adoption of this urgency ordinance will not have any fiscal impact on the City's
budget.
LEGAL REVIEW
The draft ordinance has been reviewed by the City Attorney's Office and approved as to
form.
CONCLUSION:
If the City Council adopts this urgency ordinance only limited marijuana cultivation, as
allowed under state law, and marijuana related businesses allowed under Measure X,
will be permitted. These temporary restrictions will provide time for the City to study
these issues and for the City Council to enact long-term policies and regulations.
JAY M. TREVINO, AICP
DEVELOPMENT SERVICES DIRECTOR / CONSULTANT
Attachments: 1. Urgency Ordinance
ATTACHMENT 1
ORDINANCE NO.
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
COST MESA AMENDING AND RENAMING ARTICLE 20 (MARIJUANA
AND/OR MEDICAL MARIJUANA USES AND ACTIVITIES) OF CHAPTER
IX (SPECIAL LAND USE REGULATIONS) OF TITLE 13 (PLANNING
ZONING AND DEVELOPMENT), SECTIONS 13-20084, 13-200.86 AND
13-200.87, RELATING TO CULTIVATION OF MARIJUANA AND CERTAIN
MARIJUANA RELATED USES.
WHEREAS, the City of Costa Mesa, pursuant to its police power, may adopt regulations
to protect the health, safety and welfare of the public, Cal. Const. art. XI, § 7, Cal. Govt.
Code § 37100, and thereby is authorized to declare what use and condition constitutes a
public nuisance; and
WHEREAS, Government Code Section 38771 authorizes the City through its legislative
body to declare actions and activities that constitute a public nuisance; and
WHEREAS, in 1970, Congress enacted the Controlled Substances Act (21 U.S.C.
Section 801 et seq.) which, among other things, makes it illegal to import, manufacture,
distribute, possess, or use marijuana for any purpose in the United States and further
provides criminal penalties for marijuana possession, cultivation and distribution; and
WHEREAS, the People of the State of California have enacted Proposition 215, the
Compassionate Use Act of 1996 (codified at Health and Safety Code Section 11362.5 et
seq.) (the "CUA"), which exempts qualified patients and their primary caregivers from
criminal prosecution under enumerated Health and Safety Code sections for use of
marijuana for medical purposes; and
WHEREAS, the California Legislature enacted Senate Bill 420 in 2003, the Medical
Marijuana Program Act (codified at Health and Safety Code Section 11362.7 et seq.) (the
"MMPA"), as amended, which created a state-wide identification card scheme for qualified
patients and primary caregivers; and
WHEREAS, on October 11, 2015, the Governor signed into law Senate Bill 643,
Assembly Bill 266, and Assembly Bill 243, collectively referred to as the Medical
Marijuana Regulation and Safety Act ("MMRSA"), effective January 1, 2016, which
established a state licensing system for medical marijuana cultivation, manufacturing,
delivery, and dispensing, regulating these activities with licensing requirements and
regulations that are only applicable if cities and counties also permit marijuana cultivation,
manufacturing, dispensing, and delivery within their jurisdictions. Under the MMRSA,
cities and counties may continue to regulate and/or prohibit medical marijuana cultivation,
manufacturing, dispensing, and delivery, consistent with their respective police powers,
in which case the new law would not allow or permit these activities within the cities and
counties where such activities are not otherwise permitted; and
WHEREAS, on February 3, 2016, Assembly Bill 21 (Wood) was signed by the Governor,
amending provisions of MMRSA pertaining to cultivation licenses by eliminating a March
1, 2016 deadline for local jurisdictions for the promulgation of cultivation regulations or
cultivation bans other local jurisdictions would lose the ability to regulate to the State.
Assembly Bill 21 also modified language in Health & Safety Code section 11362.777(g),
which pertained to exemptions from licensing requirements for qualified patients and
caregivers. The prior language, which specifically stated that local governments retained
the right to prohibit cultivation without exception, was revised to state: "Exemption from
the requirements of this section does not limit or prevent a city, county, or city and county
from exercising its police authority under Section 7 of Article XI of the California
Constitution."; and
WHEREAS, notwithstanding the CUA, the MMPA, and the MMRSA as amended,
marijuana remains a schedule I substance pursuant to California Health & Safety Code §
11054 (d) (13); and
WHEREAS, marijuana also remains a schedule I substance pursuant to federal law, 21
U.S.C. § 812, Schedule 1 (c) (10), and federal law does not provide for any medical use
defense or exception (Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland
Cannabis Buyers' Coop., 532 U.S. 483 (2001)); and
WHEREAS, the California Supreme Court has established that neither the CUA nor the
MMPA preempt local regulation in the case of City of Riverside v. Inland Empire Patients
Health and Wellness Center, Inc., 56 CalAth 729 (2013); and
WHEREAS, the MMRSA expressly allows cities and counties to ban marijuana cultivation
consistent with current state law including Maral v. City of Live Oak, 242 Cal.AppAth 940
(2013); and
WHEREAS, on November 8, 2016, the electorate of the State of California voted on
Proposition 64 ("Prop 64"), and approved the Adult Use of Marijuana Act ("AUMA"), to be
codified in California Health and Safety Code at various sections and in California
Business and Professions Code at various sections. The AUMA allows adults 21 and
over to use, possess, and cultivate limited amounts of marijuana, establishes a state
licensing and regulatory scheme for marijuana businesses serving the recreational
market; and will expressly allow local jurisdictions to prohibit outdoor cultivation of
marijuana for personal use, to regulate indoor cultivation of marijuana for personal use,
and to prohibit all non-medical and recreational marijuana businesses from locating and
operating within their jurisdictions; and
WHEREAS, on November 8, 2016 the electorate of the City of Costa Mesa voted on
Measure X, and approved the Costa Mesa Medical Marijuana Measure ("CMMMM"). The
CMMMM sets forth the specific area in the City within which medical marijuana
distributors, manufacturers, processors, research and development laboratories,
testing laboratories and transporters can be located; provides for City regulation of
these medical marijuana businesses in a manner consistent with the statewide
regulations to be adopted by the California Department of Consumer Affairs - Bureau
of Medical Marijuana Regulations ("BMMR") and other state agencies, including the
departments of Food and Agriculture and Public Health, pursuant to MMRSA; reaffirms
the existing ban on dispensaries and cultivation within the City; and imposes a gross
receipts tax on all medical marijuana distributors, manufacturers, processors, testing
laboratories, transporters, and research and development laboratories, as well as any
other marijuana or cannabis business at a rate of 6% of gross receipts;
WHEREAS, the City Council of the City of Costa Mesa finds that it is in the interest of the
health, safety and welfare of the City to make explicit that, to the extent allowable under
state law, all marijuana related use and activity of any kind as set forth herein, whether
medical, recreational, or otherwise, unless specifically allowed by the CMMMM, is
prohibited everywhere in the City and is a public nuisance per se, consistent with State
law, and
WHEREAS, the City Council of the City of Costa Mesa finds and clarifies this prohibition
does not apply to those uses that are authorized by the CMMMM, as set forth in Title 9,
Chapter VI "Medical Marijuana Business Permits"; and Title 13, Chapter IX, Article 21
"medical marijuana distributing, manufacturing, research and development and
testing" and Chapter IV, "Citywide Land Use Matrix", Table 13-30, of the Costa Mesa
Municipal Code; and
WHEREAS, the City Council of the City of Costa Mesa finds and clarifies this prohibition
does not prohibit qualified patients and persons with identification cards to cultivate
indoors, possess, and use marijuana for their own personal medical purposes only, as
permitted by state law; but that nothing herein shall be construed to authorize qualified
patients to engage in the collective cultivation of marijuana as described by Health and
Safety Code section 11362.775, nor are they permitted to cultivate marijuana above limits
established by State law and guidelines for their own personal use; and
WHEREAS, the City Council of the City of Costa Mesa finds that there is an immediate
need to bring the provisions of the Costa Mesa Municipal Code into conformance with
state law; and
WHEREAS, the City of Costa Mesa, pursuant to the provisions of the California
Environmental Quality Act ("CEQA") (California Public Resources Code Sections 21000
et seq.) and State CEQA guidelines (Sections 15000 et seq.) has determined that the
Ordinance is exempt pursuant to Section 15061(b)(3) of Title 14 the California Code of
Regulations; and
WHEREAS, the City Council finds that the provisions of this Ordinance are consistent
with the City of Costa Mesa's General Plan; and
WHEREAS, the City Council recognizes that there is a need to enact the restrictions
contained in this ordinance immediately to protect the public health and safety; and
WHEREAS, all legal prerequisites prior to the adoption of this ordinance have occurred.
THE COSTA MESA CITY COUNCIL DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that this Ordinance is necessary as an emergency
measure for preserving the public peace, health and safety.
SECTION 2. The City Council finds that all the facts, findings, and conclusions set forth
above in this Ordinance are true and correct.
SECTION 4. Except as provided herein, the remaining provisions of Title 13, Chapter IX,
Article 20 of the Costa Mesa Municipal Code shall remain in full force and effect.
SECTION 5. Title 13, Chapter IX, Article 20, Sections 13-20084, 13-200.86 and 13-
200.87, of the Costa Mesa Municipal Code are hereby amended to read as follows:
ARTICLE 20. - MARIJUANA AND/OR MEDICAL MARIJUANA CULTIVATION
Sec. 13-200.84. - Purpose.
The purpose of this article is to prohibit marijuana -related uses and activities in order
to promote the health, safety, morals and general welfare of the residents and the
businesses within the city by maintaining local control over the ability to authorize and
regulate marijuana -related businesses, including cultivation. Except as preempted by
state law, or as specifically authorized by Chapter VI of Title 9, Chapter IX and
Articles 20 and 21 of this Title, this prohibition includes all marijuana related uses
and activities, including but not limited to dispensing, cultivating, transporting,
distributing, processing, delivering, manufacturing, labeling, testing, and/or selling,
whether for recreational, medical, or any other use.
Sec. 13-200.85. - Applicability.
(a) Nothing in this article is intended, nor shall it be construed, to burden any
defense to criminal prosecution under the Compassionate Use Act of 1996.
(b) All the provisions of this article shall apply to all property, public and private,
within the city.
(c) All the provisions of this article shall apply indoors and outdoors.
Sec. 13-200.86. - Definitions.
The following definitions apply to this article:
Person shall mean any person, firm, corporation, association, club, society, or other
organization. The term person shall include any owner, manager, proprietor, employee,
volunteer and/or salesperson.
Private residence shall mean a house, an apartment unit, a mobile home, or other similar
lawfully existing dwelling unit as set forth in Health & Safety Code section 11362.2(b)(5).
Unless otherwise defined herein, the terms used in this article shall have the meaning
ascribed to them in Title 9, Chapter VI of this code.
Sec. 13-200.87. - Cultivation of marijuana prohibited.
(a) Marijuana and/or medical marijuana cultivation by any person, including
primary caregivers, qualified patients and dispensaries, is prohibited in all
zone districts within the City of Costa Mesa except as provided in subsection
b.
(b) The prohibition set forth in subsection a. shall not apply to indoor cultivation
of up to six plants, as authorized by state law solely for personal recreational
use or personal medical marijuana use that occurs within a private residence
occupied exclusively by natural persons age 21 or older or inside a fully
enclosed and secure lawfully existing accessory structure to a private
residence located upon the grounds of a private residence and that is
conducted in full compliance with Health and Safety Code section 11382.2.
Sec. 13-200.88. - Declaration of public nuisance.
Any use, structure, or property that is altered, enlarged, erected, established,
maintained, moved, or operated contrary to the provisions of this article, is hereby
declared to be unlawful and a public nuisance and may be abated by the city through
civil and/or administrative proceedings by means of a restraining order, preliminary or
permanent injunction, or in any other manner provided by law for the abatement of such
nuisances.
Sec. 13-200.89. - Violations.
Violations of this article shall be punishable pursuant to the provisions of section
13-16.
SECTION 6. Inconsistencies.
Any provision of the Costa Mesa Municipal Code or appendices thereto inconsistent with
the provisions of this Ordinance, to the extent of such inconsistencies and no further, is
hereby repealed or modified to that extent necessary to affect the provisions of this
Ordinance.
SECTION 7. Severability.
If any chapter, article, section, subsection, subdivision, sentence, clause, phrase, word,
or portion of this Ordinance, or the application thereof to any person, is for any reason
held to be invalid or unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portion of this Ordinance or its
application to other persons. The City Council hereby declares that it would have adopted
this Ordinance and each chapter, article, section, subsection, subdivision, sentence,
clause, phrase, word, or portion thereof, irrespective of the fact that any one or more
subsections, subdivisions, sentences, clauses, phrases, or portions of the application
thereof to any person, be declared invalid or unconstitutional. No portion of this Ordinance
shall supersede any local, state, or federal law, regulation, or codes dealing with life safety
factors.
SECTION 8. Effective Date.
This Ordinance shall become effective immediately.
SECTION 9. The City Clerk shall certify the adoption of this Ordinance and shall cause
the same to be posted or published in the manner as required by law.
APPROVED AND ADOPTED on this day of January, 2017.
Katrina Foley, Mayor
ATTEST:
Brenda Green
City Clerk
I, BRENDA GREEN, CITY CLERK of the City of Costa Mesa, California, do hereby certify
that the foregoing urgency ordinance was regularly introduced and adopted by the City
Council of the City of Costa Mesa, California, at a regular meeting thereof held on the
day of , 2017, by the following vote of the City Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED AS TO FORM:
Tom Duarte
City Attorney