HomeMy WebLinkAbout17-04 Ext. of Urgency Ord 17-01MarijuanaORDINANCE NO. 17-04
AN EXTENSION OF URGENCY ORDINANCE NO. 17-01 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
Ordinance No. 17-04 Page 1 of 6
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 Mara[ v. City of Live Oak, 242 Cal.App.4th 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
Ordinance No. 17-04 Page 2 of 6
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 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, on January 3, 2017, the City Council held a public hearing and considered
the staff report, recommendations by staff and the City Attorney and public testimony
regarding amendments to Title 9, Chapter VI and Title 13, Chapter IX, Article 21 and
Chapter IV, "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
Ordinance No. 17-04 Page 3 of 6
Municipal Code and adopted Urgency Ordiance No. 17-01 ; and
WHEREAS, On February 7, 2017, the City Council held a public hearing to consider the
extension of the Urgency Ordinance for a period of 10 months and 15 days; 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 USES AND ACTIVITIES
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:
Ordinance No. 17-04 Page 4 of 6
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. Severability.
If any provision of this ordinance or the application thereof to any person or circumstance
is held invalid, the remainder of the ordinance and the application of such provision to
other persons or circumstances shall not be affected thereby.
SECTION 7. Effective Date.
This Ordinance shall become effective immediately.
Ordinance No. 17-04 Page 5 of 6
SECTION 8. 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 7th day of February, 2017.
Katrjna Foy, Mayor
m
rte, City Attorney
TTEST:
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Brenda Green, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
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 7th day of February, 2017, by the following vote of the City Council:
AYES: COUNCIL MEMBERS: FOLEY, GENIS, MANSOOR, RIGHEIMER, STEPHENS
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the
City of Costa Mesa this 8th day of February, 2017.
Brenda Green, City Clerk
Ordinance No. 17-04 Page 6 of 6