HomeMy WebLinkAbout17-16 Ext. of 17-04 for a year-MarijuanaORDINANCE NO. 17-16
AN EXTENSION OF URGENCY ORDINANCE NO. 17-04 OF THE CITY COUNCIL OF
THE CITY OF COSTA MESA, CALIFORNIA, 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 13-200.84, 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. 17-16 Page 1 of 7
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 Cal.4th 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.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
Ordinance No. 17-16 Page 2 of 7
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, on June 27, 2017 the state Legislature passed and the Governor
signed into law the Medicinal and Adult -Use Cannabis Regulation and Safety Act
(MAUCRSA), which creates one regulatory system for both medicinal and adult -use
(recreational) cannabis. The cannabis licensing authorities shall draft emergency
regulations based on the new law for the commercial medicinal and adult -use
(recreational) cannabis industries.
WHEREAS, the renamed State of California Bureau of Cannabis Control has not
yet issued comprehensive regulations for the implementation of Prop 64 and
MAUCRSA and is not expected to do so until January 1, 2018.
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 will remain a public nuisance per se unless and until such
use and/or activity is allowed by an ordinance of the City, 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 No. 17-16 Page 3 of 7
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;
WHEREAS, the City Council finds that there is a current and immediate threat to
public health, safety, and welfare, and that the approval of additional use permits,
variances, building permits, and/or any other applicable entitlement for use which is
required in order to comply with the provisions of the Zoning Code would result in that
threat to public health, safety, or welfare; 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 13, Chapter IX, Article 20, Sections 13-20084,
13-200.86 and 13-200.87 and adopted Urgency Ordinance No. 17-01; and
WHEREAS, on February 7, 2017, the City Council held a public hearing to
consider an extension of and thereafter did adopt Urgency Ordinance 17-04 to extend
the Urgency Ordinance for a period of 10 months and 15 days; and
WHEREAS, on November 21, 2017, the City Council held a public hearing to
consider an extension of Urgency Ordinance 17-04 for a period of one-year;
WHEREAS, 10 days prior to the expiration of the extension of this interim
ordinance the City Council did consider and approve the Report of the City Council
regarding Extension of Ordinance No. 17-04
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 17-04 remains 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 3. The City Council issues the "Report of the City Council: Extension of
Ordinance No. 17-04."
Ordinance No. 17-16 Page 4 of 7
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 shall continue 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:
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.
Ordinance No. 17-16 Page 5 of 7
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 11362.2.
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.
SECTION 7. 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 21St day of November, 2017.
i -
Sandra L. Genis, Mayor
Ordinance No. 17-16 Page 6 of 7
ATTEST:
Brenda Green, Ofty Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
APPROVED AS MO FORM:
,Thomas Duarte, City Attorney
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 21St day of November, 2017, by the following vote of the City Council:
AYES: COUNCIL MEMBERS: Foley, Righeimer, Stephens, Mansoor, Genis
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 22nd day of November, 2017.
Brenda Green, Clerk
Ordinance No. 17-16 Page 7 of 7