PROPOSED ORDINANCE NO

Transcription

1 PROPOSED ORDINANCE NO AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, AMENDING SECTION OF THE MUNICIPAL CODE (DEVELOPMENT CODE) TO REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA WHEREAS, the City of Azusa, California (the City ) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code section et seq. authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and WHEREAS, the City passed Urgency Ordinance No O11, which prohibited marijuana dispensaries, manufacturers, cultivation, delivery and all other commercial marijuana activities in the City; and WHEREAS, the City desires to continue to ban all marijuana dispensaries, cultivation, and delivery service land uses within City limits to the extent allowed by California law. Ordinance No updates the Municipal Code to effectuate that aim; and WHEREAS, on November 8, 2016, California voters moved to approve Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act ( AUMA ); and WHEREAS, AUMA regulates, among other items, the use of marijuana for personal and commercial purposes, including the recreational use of marijuana by adults over 21 years of age; and WHEREAS, to regulate commercial use of marijuana, AUMA adds Division 10 (Marijuana) to the Business & Professions Code, which grants state agencies the exclusive authority to create, issue, renew, discipline, suspend, or revoke licenses for businesses including the transportation, storage, distribution, sale, cultivation, manufacturing, and testing of marijuana; and WHEREAS, AUMA provides that the above state agencies shall promulgate rules and regulations and shall begin issuing licenses under Division 10 by January 1, 2018; and WHEREAS, AUMA authorizes cities to completely prohibit the establishment or operation of any marijuana business licensed under Division 10 within its jurisdiction, including marijuana dispensaries, marijuana retailers, and marijuana delivery services; and WHEREAS, absent appropriate local regulation authorized by AUMA, state regulations will control; and WHEREAS, the Medical Marijuana Regulation and Safety Act, which took effect January 1, 2016, regulates use of marijuana for medical purposes; and

2 Page 2 of 13 WHEREAS, in May 2013, the California Supreme Court held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013) that cities have the authority to regulate or ban outright medical marijuana land uses; and WHEREAS, the California Attorney General s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that nearby homes or businesses may be negatively impacted by nuisance activity such as loitering or crime; and WHEREAS, under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; and WHEREAS, the indoor cultivation of marijuana has potential adverse effects to the health and safety of the occupants; including structural damage to the building due to increased moisture and excessive mold growth which can occur and can pose a risk of fire and electrocution; additionally, the use of pesticides and fertilizers can lead to chemical contamination within the structure; and WHEREAS, based on the experiences of other cities, these negative effects on the public health, safety, and welfare are likely to occur, and continue to occur, in the City due to the establishment and operation of marijuana cultivation, processing, and distribution uses; and WHEREAS, the City believes a Recreational Indoor Marijuana Cultivation ( RIMC ) permit is a reasonable requirement to ensure that all marijuana grown in the City is grown in code-compliant structures that reduce the risk of fire, mold, or other structural damage and contamination; and WHEREAS, the City has determined a RIMC permit is necessary to the public health, safety, and welfare in the City; and WHEREAS, the subject Municipal Code Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(2), 15060(3) and 15061(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA; and WHEREAS, this Ordinance would amend section of the Municipal Code to clarify the substantive objectives of the Municipal Code regarding the City s regulation of marijuana within its City limits. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:

3 Page 3 of 13 SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Section of the Azusa Municipal Code is hereby amended in its entirety to read as follows: Marijuana Uses. A. PURPOSE. The purpose of this section is to regulate personal, medical, and commercial marijuana uses. Nothing in this section shall preempt or make inapplicable any provision of state or federal law. B. DEFINITIONS. For purposes of this section, the following definitions shall apply: 1. Commercial marijuana activity includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery or sale of marijuana and marijuana products. 2. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. 3. Cultivation area includes the area where marijuana plants are cultivated, cultivation-related materials and supplies are stored, and any marijuana processed from the cultivation in excess of 28.5 grams. 4. Day care means a facility, center, or home requiring a license that is issued by the State of California which provides for the care, health, safety, supervision, or guidance of a child s social, emotional, and educational growth on a regular basis, in a place other than the child s own home, or any facility meeting the definition of California Health and Safety Code Section Delivery means the commercial transfer of marijuana or marijuana products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer of marijuana or marijuana products. 6. Directly engage in cultivation means to handle the marijuana plants in the cultivation process. 7. Distribution means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes. 8. Group Home means any community care facility regulated and licensed by a Federal and/or State agency. Unlicensed community care facilities or those

4 Page 4 of 13 community care facilities the regulation of which is not otherwise preempted by State or Federal law shall not constitute group homes. 9. Indirectly engage in cultivation means to assist, even if not handling marijuana plants, in the cultivation process. 10. Licensee means the holder of any state issued license related to marijuana activities, including but not limited to licenses issued under Division 10 of the Business & Professions Code. 11. Manufacture means to compound, blend, extract, infuse, or otherwise make or prepare a marijuana product. 12. Marijuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include: Industrial hemp, as defined in Section of the California Health & Safety Code; or The weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. 13. Marijuana accessories means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana or marijuana products into the human body. 14. Marijuana products means 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 topical product containing marijuana or concentrated cannabis and other ingredients. 15. Person includes any individual, firm, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. 16. Personal Use means to possess, use, or give away to persons 21 years of age or older without any compensation whatsoever. 17. Residence means a private residence such as a house, apartment unit, mobile home, or similar dwelling.

5 Page 5 of "Sale" includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of marijuana or marijuana products by a licensee to the licensee from whom such marijuana or marijuana product was purchased. 19. Youth Center means any public or private facility that is primarily used to host recreational or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park facilities. 20. Any term defined in this Section also means the very term as defined in the California Business & Professions Code or the California Health & Safety Code, unless otherwise specified. C. PERSONAL USE. 1. For purposes of this subsection, personal recreational use, possession, purchase, transport, or dissemination of marijuana shall be considered unlawful in all areas of the City to the extent it is unlawful under California law. 2. Outdoor Cultivation. A person may not plant, cultivate, harvest, dry, or process marijuana plants outdoors in any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. 3. Indoor Cultivation. A person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, or inside any other enclosed structure within any zoning district of the City. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. To the extent a complete prohibition on indoor cultivation is not permitted under California law, a person may not plant, cultivate, harvest, dry, or process marijuana plants inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, unless the person is issued a residential indoor cultivation permit by the Economic and Community Department as detailed in section D (Residential Indoor Marijuana Cultivation (RIMC) Permit) below. A person

6 Page 6 of 13 may not plant, cultivate, harvest, dry, or process marijuana plants inside any enclosed structure within any zoning district of the City which is not either a private residence or an accessory structure to a private residence located upon the grounds of a private residence. D. RESIDENTIAL INDOOR MARIJUANA CULTIVATION (RIMC) PERMIT. 1. Applicability The RIMC Permit is intended to serve as an instrument of the City s reasonable regulation of residential indoor marijuana cultivation as provided by California Health and Safety Code, Section (1). A person may directly or indirectly engage in residential indoor marijuana cultivation only after obtaining and maintaining a valid RIMC Permit A RIMC Permit authorizes: 1. Only one person, 2. To directly or indirectly engage in residential indoor marijuana cultivation for personal use, 3. At only one residence, and 4. Within only the authorized cultivation area at the residence. A RIMC Permit does not authorize: 1. Construction or improvements of any structure, 2. A property-at-large for marijuana cultivation, 3. The permit holder or any others to engage in any activity licensed by the State of California under Division 10 of the Business and Professions Code, or 4. The following people to directly or in directly engage in residential indoor marijuana cultivation: A. The permit holder s family members, B. Cohabitants, C. Guests, D. Future residents, or E. Any other person other than the permit holder.

7 Page 7 of 13 (d) A person may not hold more than one RIMC Permit at a time. Multiple permit holders may be authorized to engage in residential indoor marijuana cultivation at the same residence, but a residence must include no more than one cultivation area and no more than six marijuana plants in total. 2. Review and Appellate Authority. Applications for a RIMC Permit will be processed and reviewed by the Economic and Community Development Director or his/her designee(s). The Economic and Community Development Director or his/her designee(s) or his designee(s) may approve or deny an application based on the findings provided in section D4 (Findings) below. A decision by the Economic and Community Development Director or his/her designee(s) may be appealed to the City Hearing Officer by the following parties: 1. The applicant; or 2. Owners or residents of the property. A decision of the City Hearing Officer may be appealed to the City Council by the following parties: 1. The applicant; or 2. Owners or residents of the property. 3. Application and Notice. The Economic and Community Development Director or his/her designee(s) may adopt the forms and submittal materials required for a complete application. The City Council may by resolution require an application fee. The City will provide notification of the complete application to the following: 1. The applicant; and 2. Owners and residents of the property. 4. Findings. The Economic and Community Development Director or his/her designee(s) may approve an application for an RIMC Permit if the following findings are made: Applicant.

8 Page 8 of 13 The applicant must: 1. Be 21 years of age or older, 2. Complete a Live Scan with the California Department of Justice, 3. Have no felony convictions for the illegal possession for sale, manufacture, transportation, or cultivation of a controlled substance within the last five years, 4. Have no pending code enforcement actions with the City, 5. Have no past due payments due to the City, and 6. Have no City liens on the property. Residence. 1. The residence must be the primary dwelling of the applicant. 2. The residence must not include more than one cultivation area. 3. The residence must not be used for any of the following activities: A. Day care, B. Youth center, and C. Residential health care facility. Cultivation Area. 1. Location and Use. A. The cultivation area must be located within the residence or within an auxiliary structure. The residence, auxiliary structure, and all plumbing, electrical, and other utilities must be properly permitted by the City or appropriate regulatory agency. B. The cultivation area must be used exclusively for residential indoor marijuana. The cultivation area may not be shared with any space used for sleeping, cooking, eating, bathing, or other residential activities. C. The cultivation area must not be used or prepared in a manner to cultivate more than six marijuana plants. D. The following chemicals may not be used or stored in the cultivation area:

9 Page 9 of 13 (i) (ii) Explosive gases, including, but not limited to: Butane, Propane, Xylene, Styrene, Gasoline, Kerosene, Oxygen (O2), or Hydrogen (H2). Dangerous poisons, toxins, or carcinogens, including, but not limited to: Methanol, Iso-propul Alcohol, Methylene Chloride, Acetone, Benzene, Toluene, or Tri-chloroethylene. 2. Inspection of Cultivation Site. A. The Economic and Community Development Director or his/her designee(s) may inspect the premises, with the applicants approval, prior to the issuance or renewal of a RIMC Permit to ensure compliance with all applicable state and local laws, codes and regulations, including without limitation, the California Building Code, Electrical and Fire Codes as adopted by the City of Azusa. B. The site inspection may include personnel from the following divisions: Planning, Building, Community Improvement and the Police Department. C. Should the applicant deny access to the property for the inspection of the cultivation site, the application process will terminate and a permit will not be issued. 3. Access and Security. A. The structure, or room in which the cultivation occurs, shall have locking doors and shall be secured to prevent access by minors and/or unauthorized persons. Any windows, skylight, ventilation, or other opening must be lockable. B. Access to the cultivation area must be restricted to the applicant or other permit holders authorized for the cultivation area. C. The cultivation area must not be visible from anywhere outside the residence. Any windows, skylight, ventilation, or other opening must be sufficiently covered or opaque as to obscure visibility of the cultivation area from any adjacent property. Such window coverings shall not restrict emergency egress from the structure. D. The cultivation area must not produce odors, sounds, or other emissions that are detectible from adjacent properties and may indicate marijuana cultivation.

10 Page 10 of Expiration and Renewal. A RIMC Permit expires, if not renewed, one year from the date of approval and in two (2) year increments thereafter. A RIMC Permit may be renewed, if prior to the expiration, the permit holder: 1. Completes forms and submittal materials for renewal as required by the Economic and Community Development Director or his/her designee(s). 2. The permit holder passes an inspection approved by the Economic and Community Development Director or his/her designee(s), as provided in section 4..2 (Inspection of Cultivation Site), above. 3. Pays a renewal fee as approved by resolution by City Council. A RIMC Permit renewal may be streamlined if the following conditions are met: 1. No code violations on the property. 2. No suspension or revocation of the existing RIMC permit on the property. 3. All RIMC permit fees are paid. 6. Suspension and Termination. The Economic and Community Development Director or his/her designee(s) may suspend or terminate a RIMC Permit at any time for failure to comply with applicable governing regulations. If a RIMC Permit is suspended, the suspension will be effective and the permit holder s marijuana crop may be impounded until the permit holder: 1. Demonstrates compliance with the applicable governing regulations, and 2. Pays a fine as set forth in section 6(d) (Suspension and Termination) below. (d) If a RIMC Permit is terminated, the permit holder s marijuana crop may be impounded. The permit holder may not apply for another RIMC Permit until the permit holder pays a fine as set forth in section 6(d) (Suspension and Termination) below. The Economic and Community Development Director or his/her designee(s) may permanently terminate a RIMC should criminal activity occur or repeated violations. The City Council may by ordinance adopt a fine schedule for violations that may escalate with successive violations.

11 Page 11 of 13 (e) A suspension or termination of a RIMC Permit may be appealed to the City Hearing Officer by the permit holder. 7. Subsequent Applications. Application for a Different Residence. 1. If a permit holder applies for a RIMC Permit for a residence other than specified on the existing permit, the existing RIMC Permit will remain valid during the application process. 2. If the application is approved, the existing RIMC Permit is rescinded. 3. If the application is denied, the existing RIMC Permit is reinstated. 4. If the applicant appeals a denial of the application, the existing RIMC Permit remains valid until a final decision is reached. Application for a Different Cultivation Area in the Same Residence. 8. No Sale or Transfer If a permit holder applies for an RIMC Permit for the residence on the existing permit, but for cultivation area other than specified on the existing permit, the existing permit will terminate upon approval of the application. A RIMC Permit may not be transferred, sold, conveyed, hypothecated or encumbered. E. MEDICAL USE. 1. Cultivation of medical marijuana pursuant to Section of the California Health & Safety Code is subject to the cultivation requirements laid out in subsection of this Section. 2. The establishment or operation of any medical marijuana collective, cooperative, dispensary, delivery service, operator, establishment, or provider shall be considered a prohibited use in all zoning districts of the City. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for the establishment of any collective, cooperative, dispensary, delivery service, operator, establishment, or provider in any zoning district, and no person shall otherwise establish such businesses or operations in any zoning district. F. COMMERCIAL USE. 1. The establishment or operation of any business of commercial marijuana activity is prohibited. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for

12 Page 12 of 13 the establishment or operation of any such business or operation. Such prohibited businesses or operations may include, but are not limited to: (d) The transportation, delivery, storage, distribution, or sale of marijuana, marijuana products, or marijuana accessories; The cultivation of marijuana; The manufacturing or testing or marijuana, marijuana products, or marijuana accessories; or Any other business licensed by the state or other government entity under Division 10 of the California Business & Professions Code, as it may be amended from time to time. G. VIOLATION. No person, whether as principal, agent, employee or otherwise, shall violate, cause the violation of, or otherwise fail to comply with any of the requirements of this section. Every act prohibited or declared unlawful, and every failure to perform an act made mandatory by this section, shall be a misdemeanor or an infraction, at the discretion of the City Attorney or the District Attorney. In addition to the penalties provided in this section, any condition caused or permitted to exist in violation of any of the provisions of this section is declared a public nuisance and may be abated as provided in section (Abatement) and/or under state law. H. NO DUTY TO ENFORCE. Nothing in this section shall be construed as imposing on the Economic and Community Development Director or his/her designee(s) or the City any duty to issue an notice to abate unlawful marijuana cultivation, nor to abate any unlawful marijuana cultivation, nor to take any other action with regard to any unlawful marijuana cultivation, and neither the Economic and Community Development Director or his/her designee(s) nor the City shall be held liable for failure to issue an order to abate any unlawful marijuana cultivation, nor for failure to abate any unlawful marijuana cultivation, nor for failure to take any other action with regard to any unlawful marijuana cultivation. SECTION 3. CEQA. The subject Municipal Code Amendment is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(2), 15060(3) and 15061(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines.

13 Page 13 of 13 SECTION 4. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk s office located at 213 E. Foothill Boulevard, Azusa, California The custodian of these records is the City Clerk. SECTION 5. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The people of the City of Azusa hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 6. Effective Date. This Ordinance shall become effective thirty (30) days following its adoption. SECTION 7. Publication. The City Clerk shall certify to the adoption of this Ordinance. Not later than fifteen (15) days following the passage of this Ordinance, the Ordinance, or a summary thereof, along with the names of the City Council members voting for and against the Ordinance, shall be published in a newspaper of general circulation in the City of Azusa, in accordance with California Government Code Section ORDINANCE WAS INTRODUCED AND PLACED UPON ITS FIRST READING ON JUNE 5, 2017, by the following vote of the Council: AYES: NOES: COUNCILMEMBERS: GONZALES, CARRILLO, ALVAREZ, ROCHA COUNCILMEMBERS: MACIAS Second reading and adoption to be considered by the Azusa City Council at the Regular Scheduled Meeting of June 19, /s/ Jeffrey Lawrence Cornejo, Jr., City Clerk Published in the San Gabriel Valley Tribune: June 9, 2017