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HomeMy WebLinkAbout18-05 - Adopting Code Amendment CO-18-01 (Medical Marijuana)ORDINANCE NO. 18-05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA ADOPTING THE TEXT OF URGENCY ORDINANCE 17-16 AS ZONING CODE AMENDMENT CO -18-01, AMENDING ARTICLE 20 (MARIJUANA AND/OR MEDICAL MARIJUANA USES AND ACTIVITIES) OF CHAPTER IX (SPECIAL LAND USE REGULATIONS) OF TITLE 13 (PLANNING ZONING AND DEVELOPMENT), RELATING TO CULTIVATION OF MARIJUANA AND CERTAIN MARIJUANA RELATED USES THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS FOLLOWS: 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. 18-05 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 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 Ordinance No. 18-05 Page 2 of 7 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; and 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; and WHEREAS, the renamed State of California Bureau of Cannabis Control has begun to issue regulations for the implementation of Prop 64 and MAUCRSA; and 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, 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 extend Urgency Ordinance 17-01 by adoption of Urgency Ordinance 17-04 for a period of 10 months and 15 days; and Ordinance No. 18-05 Page 3 of 7 WHEREAS, on November 21, 2017, the City Council held a public hearing to consider an extension of, and thereafter did extend, Urgency Ordinance 17-04 by adoption of Urgency Ordinance 17-16, for a period of one-year; and WHEREAS, the City Council now desires to adopt the text of Urgency Ordinance 17-16 as a regular ordinance and to continue the prohibitions and allowable uses set forth therein with revisions regarding personal cultivation as set forth herein; 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, all legal prerequisites prior to the adoption of this ordinance have occurred. THE COSTA MESA CITY COUNCIL DOES HEREBY ORDAIN AS FOLLOWS: Section 1: Title 13, Chapter IX, Article 20 of the Costa Mesa Municipal Code, as adopted by Urgency Ordinance 17-16, with amendments to Section 13-200.87, subsection b, 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. Ordinance No. 18-05 Page 4 of 7 Sec. 13-200.86. - Definitions. The following definitions apply to this article: Accessory structure shall mean a building, other than a dwelling unit, that is subordinate to, and the use of which is incidental to that of the main building or use on the same lot. 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 per private residence, as authorized by state law solely for personal adult 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 2: Environmental Compliance. This Ordinance 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 the City Council hereby finds that it can be seen with certainty that there is no possibility that the passage of this Ordinance will have a significant effect on the environment. Ordinance No. 18-05 Page 5 of 7 Section 3: 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 4: 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 5: Effective Date. This Ordinance shall take effect and be in full force thirty (30) days from and after the passage thereof, and prior to the expiration of fifteen (15) days from its passage shall be published once in the ORANGE COAST DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the office of the City Clerk five (5) days prior to the date of adoption of this Ordinance, and within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post in the office of the City Clerk a certified copy of this Ordinance together with the names and member. of the City Council. voting. for and against the same. APPROVED AND ADOPTED on this 3rd day of April, 2018. Sandra L. Genis, Mayor ATTEST: Brenda Green, City Clerk APPROVED AS TO FORM: 14111iy Thomas Du e, City Attorney Ordinance No. 18-05 Page 6 of 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF COSTA MESA ) I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY that the above and foregoing Ordinance No. 18-05 was duly introduced for first reading at a regular meeting of the City Council held on the 20th day of March, 2018, and that thereafter, said Ordinance was duly passed and adopted at a regular meeting of the City Council held on the 31d day of April, 2018, by the following roll call vote, to wit: AYES: COUNCIL MEMBERS: Foley, Righeimer, Mansoor, and Genis NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Stephens IN WITNESS WHEREOF, I have hereby set my hand and affixed the seal of the City of Costa Mesa this 4th day of April, 2018. 3rs� azzyn, Brenda Gree City Clerk Ordinance No. 18-05 Page 7 of 7