HomeMy WebLinkAboutO-1633 Ordinance codifying and reaffirming current city law, policy and practice by expressly prohibiting all commercial and industrial recreational and medical marijuana usesORDINANCE NO. 1633 (2017 SERIES)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS
OBISPO, CALIFORNIA, CODIFYING AND REAFFIRMING CURRENT
CITY LAW, POLICY AND PRACTICE BY EXPRESSLY PROHIBITING
ALL COMMERCIAL AND INDUSTRIAL RECREATIONAL AND
MEDICAL MARIJUANA USES, ACTIVITIES AND OPERATIONS AND
LIMITING OUTDOOR CULTIVATION OF MEDICAL AND
RECREATIONAL MARIJUANA WITHIN THE CITY
WHEREAS, in 1996, California voters approved Proposition 215, entitled "The
Compassionate Use Act of 1996", providing a defense to state criminal prosecution for specified
medical marijuana use, and the Medical Marijuana Program Act established a voluntary
participation, State -authorized medical marijuana identification card and registry database for
verification of qualified patients and their primary caregivers; and
WHEREAS, in 2015, the State Legislature approved the Medical Marijuana Regulation
and Safety Act ("MMRSA"), which created an extensive statewide regulatory and licensing system
for the cultivation, manufacture, testing, dispensing, distribution and transport of medical
marijuana. MMRSA exempted from its regulatory and licensing system, certain medical marijuana
cultivation by individual qualified patients and primary caregivers with no more than five qualified
patients. In 2016, the State Legislature updated MMRSA by approving AB 21 and SB 837 to
address issues not previously addressed in prior legislation and changed the name of MMRSA to
the Medical Cannabis Regulation and Safety Act (MCRSA); and
WHEREAS, under MCRSA, the State will not issue licenses to operators in jurisdictions
that prohibit medical marijuana uses and activities, either expressly or under principles of
permissive zoning; and
WHEREAS, the City historically has relied on permissive zoning principles to decline
permitting of marijuana businesses and uses within the City, and reaffirmed that position by
adoption of Resolution 10683 on January 14, 2016; and
WHEREAS, on November 8, 2016, California voters passed Proposition 64, entitled "The
Control, Regulate, and Tax Adult Use of Marijuana Act" ("AUMA"). AUMA legalized under
California law non-medicinal/recreational marijuana use for those 21 years of age and over, and
created a comprehensive regulatory, licensing and tax system for the non-medical marijuana
industry, including 19 different types of licenses for cultivation, manufacturing, testing, retailer,
distributor and microbusiness; and
WHEREAS, AUMA allows local governments to ban recreational marijuana businesses
entirely, or regulate such businesses, and to reasonably regulate cultivation through zoning and
other public health and safety laws, including prohibiting outdoor cultivation outright, but AUMA
does require local governments to allow limited indoor cultivation in private residences; and
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Ordinance No. 1633 (2017 Series) Page 2
WHEREAS, despite the changes in California law, the Federal Controlled Substances Act
still makes it illegal under federal law for any person to cultivate, manufacture, distribute or
dispense, or possess with intent to manufacture, distribute or dispense, marijuana, and the future
of federal government enforcement actions under a new Presidential administration is uncertain
in states that have legalized the recreational use of marijuana; and
WHEREAS, it will take a substantial amount of time: to conduct public outreach regarding
the direction the City should take regarding both medical and recreational marijuana businesses;
to draft comprehensive zoning and other regulations relating to commercial recreational and/or
medical marijuana activities within the City; to determine whether to pursue certain taxes related
to commercial recreational marijuana; and to analyze the potential impacts and health and safety
issues relating to such businesses, including, but not limited to, environmental, water, indoor
electrical fire hazards, mold, odors and criminal activity; and
WHEREAS, AUMA does not contain the protective language relating to permissive
zoning that MCRSA does, and, in the absence of an express ordinance either prohibiting or
regulating non-medical marijuana business or activities, the City could become subject to State
licensing of marijuana businesses and activities within its jurisdiction and/or may not be able
preclude the State from issuing licenses to marijuana businesses anywhere in the City; and
WHEREAS, it is unclear to the full extent to which AUMA and MCRSA may conflict,
how state regulatory provisions ultimately may reconcile the two licensing structures, and whether
the provisions of AUMA will control over MCRSA; and
WHEREAS, the City has had odor complaints relating to outdoor cultivation of marijuana,
resulting in the addition of Chapter 8.22 to the Municipal Code, prohibiting persistent offensive
odors from emanating across property or parcel lines; and
WHEREAS, the City currently prohibits smoking and controls secondhand smoke,
including marijuana smoke and vapors, in public and other places under Chapter 8.16, of its
Municipal Code; and
WHEREAS, the City Council wishes to preserve its ability to continue its current
licensing, permitting, regulation and enforcement practices regarding marijuana uses within its
boundaries in order to receive and consider council direction and public outreach to define the
appropriate nature and scope of regulations.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo
as follows:
SECTION 1. The foregoing recitals are adopted by the City Council as findings in support
of the Ordinance.
SECTION 2. This Ordinance constitutes an exercise of the City's police powers under the
California Constitution and codifies existing law, policy and practice in the City of San Luis
Obispo prohibiting marijuana uses and activities.
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Ordinance No. 1633 (2017 Series) Page 3
SECTION 3.
Chapter 9.10 is added to the San Luis Obispo Municipal Code, to read as follows:
Chapter 9.10 MARIJUANA REGULATION
9.07.010 Purpose and Intent
A. The purpose and intent of this chapter is to maintain the status quo while the city
conducts public outreach by limiting the outdoor cultivation, and prohibiting
manufacturing, processing, laboratory testing, labeling, storing and wholesale and
retail distribution and sale of recreational and medical marijuana to protect the health,
safety and welfare of the city consistent with state law.
B. This chapter is not intended to, nor shall it be construed as, prohibiting or interfering
with any right, defense or immunity afforded to qualified patients or their caregivers
relating to medical marijuana under the Compassionate Use Act of 1996, the Medical
Marijuana Program Act, the Medical Cannabis Regulatory and Safety Act and other
applicable California law.
C. This chapter is not intended to, and shall not be construed as, prohibiting or interfering
with any right, defense or immunity of any individual relating to the recreational use
or possession or indoor cultivation of marijuana as permitted by the Control,
Regulation and Tax Adult Use of Marijuana Act; provided, nothing in this subsection
is to be construed to permit actions violating or not permitted by other provisions of
the Municipal Code, including, but not limited to, Chapter 5.01 Business License
Program, Chapter 8.16 Smoking Prohibited and Secondhand Smoke Control, Chapter
8.22 Offensive Odors and Chapter 17.22 Use Regulations.
9.10.020 Limitation of Outdoor Cultivation of Marijuana
No person shall cultivate, plant, grow, maintain or store more than six marijuana plants
outdoors in any location within the City, whether or not located in a greenhouse or other
structure designed or used for such activities.
9.10.030 Prohibition of Marijuana -Related Businesses
A. Except as otherwise specifically required by California law, any and all commercial or
industrial recreational and medical marijuana/cannabis-related uses, activities,
businesses, or operations, are prohibited and unlawful within the City of San Luis
Obispo.
B. This prohibition applies to both for profit and nonprofit commercial and industrial uses,
activities, businesses, operations, even if a State license under the Control, Regulate
and Tax Adult Use of Marijuana Act or the Medical Cannabis Regulation and Safety
Act is not required.
C. This prohibition includes, but is not limited to, commercial and/or industrial:
cultivation (both indoor and outdoor); manufacturing; processing; laboratory testing;
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Ordinance No. 1633 (2017 Series)
Page 4
wholesale or retail distribution, delivery and sale; labeling; storage; or permitting of
smoking/vaporizing/ingesting on any business premises, of marijuana/cannabis,
marijuana/cannabis products and all marijuana/cannabis derivatives for any purpose.
9.10.40 Violation and Penalties
A. Misdemeanor. Any violation of the provisions of this chapter shall be a misdemeanor;
provided, that where the city attorney determines that such action would be in the interest
of justice, he/she may specify in the accusatory pleading that the offense shall be an
infraction.
B. Infraction Violation. Where the city attorney determines that, in the interest of justice,
a violation of this chapter is an infraction, such infraction is punishable by a fine not
exceeding one hundred dollars for a first violation, a fine not exceeding two hundred dollars
for a second violation of the same provision within one year, and a fine not exceeding five
hundred dollars for each additional infraction violation of the same provision within one
year.
C. The fine amounts set forth above may be modified, from time to time, by city council
resolution. In no event shall such fine amounts exceed the amounts authorized by state law.
D. Each person committing, causing, or maintaining a violation of this chapter or failing to
comply with the requirements set forth herein shall be deemed guilty of a separate offense
for each and every day during any portion of which any violation of any provision of this
chapter is committed, continued, maintained, or permitted by such person and shall be
punishable accordingly.
E. The violation of any provision of this chapter shall be and is hereby declared to be a
public nuisance and contrary to the public interest. Any public nuisance under this chapter
may, at the city's discretion, be abated by the city by civil process by means of a restraining
order, preliminary or permanent injunction or in any manner provided by law for the
abatement of such nuisance. The city shall also be entitled to recover its full reasonable
costs of abatement. The prevailing party in any proceeding associated with the abatement
of a public nuisance shall be entitled to recovery of attorneys' fees incurred in any such
proceeding if the city has elected at the initiation of that individual action or proceeding to
seek recovery of its own attorneys' fees.
F. In lieu of issuing a criminal citation, the city may issue an administrative citation to any
person responsible for committing, causing or maintaining a violation of this chapter.
Nothing in this section shall preclude the city from also issuing a citation upon the
occurrence of the same offense on a separate day.
G. The remedies set forth in this chapter are cumulative and additional to any and all other
legal remedies available whether set forth elsewhere in the San Luis Obispo Municipal
Code, or in state or federal laws, regulations, or case law
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Ordinance No. 1633 (2017 Series) Page 5
SECTION 4 The adoption of this Ordinance maintains the status quo and does not make
any change in the current or historic law, policy or practice of the City, and the whole of such
action is not an activity which may cause direct or reasonably foreseeable indirect physical change
in the environment under Public Resources Code Section 21065 or California Environmental
Quality Act ("CEQA") Guidelines Section 15378 (a) and, therefore, is exempt from, and not a
project subject to, environmental review. Even if the adoption of this Ordinance codifying existing
law is determined to constitute approval of a project under CEQA, and even if the project is not
subject to any statutory or categorical exceptions, as a matter of common sense, it can be seen with
certainty that there is no possibility that the activity in question, the adoption of the Ordinance
codifying existing law, may have a significant effect on the environment under CEQA guidelines
section 15061 (b) (3).
SECTION 5. This Ordinance shall not be interpreted in any manner to conflict with
controlling provisions of state or federal law, including, without limitation, the Constitution of the
State of California. If any section, subsection or clause of this ordinance shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and
clauses shall not be affected thereby.
SECTION 6. A summary of this ordinance, together with the names of Council members
voting for and against, shall be published at least five (5) days prior to its final passage, in The
Tribune, a newspaper published and circulated in this City. This ordinance shall go into effect at
the expiration of thirty (30) days after its final passage.
INTRODUCED on the 14th day of March 2017, AND FINALLY ADOPTED by the
Council of the City of San Luis Obispo on the 4th day of April 2017, on the following roll call vote:
AYES: Council Members Christianson, Gomez and Pease,
Vice Mayor Rivoire and Mayor Harmon
NOES: None
ABSENT: None
ATTEST:
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Carrie Gallagher
City Clerk
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Ordinance No. 1633 (2017 Series) Page 6
APPROVED AS TO FORM:
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J. Christine Dietrick
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--'City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City
of San Luis Obispo, California, this day ofA.tL , 2017.
Carrie Gallagher
City Clerk
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