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HomeMy WebLinkAbout700ORDINANCE NO. 700 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE TO ADD CHAPTER 17.110 TO TITLE 17 OF THE IRWINDALE MUNICIPAL CODE TO PROHIBIT THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES AND TO FURTHER PROHIBIT MARIJUANA CULTIVATION AND MOBILE MARIJUANA DISPENSARIES CITYWIDE, AMEND AND ADD DEFINITIONS IN CHAPTER 17.08 OF TITLE 17 OF THE IRWINDALE MUNICIPAL CODE, AND TO REPEAL SECTION 17.32.015 OF CHAPTER 17.32 OF TITLE 17 OF THE IRWINDALE MUNICIPAL CODE TO DELETE DUPLICATIVE PROVISIONS A. RECITALS i. In 1996, the voters of the state of California approved Proposition 215, codified at Health and Safety Code section 11362,5 et seq. and entitled "The Compassionate Use Act of 1996" (the "CUA"); and The CUA was intended to provide seriously ill Californians the ability to possess, use and cultivate marijuana for medical use once a physician has deemed the use beneficial to a patient's health; and In 2003, California Senate Bill (SB) 420 was enacted by the Legislature to clarify the scope of the CUA and to allow California cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the CUA; and iv. These new regulations and rules became known as the Medical Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects; and V. Neither the CUA nor the MMP require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate or process medical marijuana within its jurikliction; and vi. In 2008, the City Council of the City of Irwindale ("City") adopted a prohibition on medical marijuana dispensaries by adopting Ordinance No. 624, codified in the City's Zoning Ordinance at section 17.32.015 of Chapter 17.32 of Title 17 of the Irwindale Municipal Code (the "Ordinance"); and vii. In 2013, the California Supreme Court confirmed that cities have the authority to ban medical marijuana land uses (City of Riverside v. Inland Empire Patients Health and Wellness Center (2013) 56 Ca1.4th 729); and viii. Also in 2013, the California Supreme Court further determined that the CUA and MMP do "not preempt a city's police power to prohibit the cultivation of all marijuana within that city" (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 978); and Ordinance No. 700 Page 1 ix. Under the Federal Controlled Substances Act, codified in 21 U. S. C. Section 801 et seq., the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need; and x. On October 9, 2014, Governor Jerry Brown signed into law, three (3) bills — AB 243, AB 266 and SB 643 — which together form the Medical Marijuana Regulation and Safety Act (the "Act"); and xi. On May 13, 2015, the City Council of the City of Irwindale ("City") adopted a temporary moratorium on the commercial and industrial cultivation, processing and distribution of medical marijuana in all non-residential zones pending the completion of studies and the preparation of an update to the City's Zoning Code by adopting Interim Urgency Ordinance No. 691; and xii. On June 24, 2015, the City Council of the City of Irwindale ("City") adopted an extension of a temporary moratorium on the commercial and industrial cultivation, processing and distribution of Medical marijuana in all nonresidential zones pending completion of studies and the preparation of an update to the City's Zoning Code, established by Interim Urgency Ordinance No. 691 pursuant to section 65858(d) of the California Government Code; and xiii. The Act, which becomes effective January 1, 2016, creates a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis; and xiv. In addition to creating these State controls, the Act preserves the City's authority to prohibit, regulate and/or license medicinal marijuana uses within its jurisdiction, as it expressly provides that the Act: 1 Is not intended "to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements" (Bus. & Prof. Code § 19315(a)); 2. Does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Bus. & Prof. Code § 19316(c)); 3. Authorizes local jurisdictions like the City with the power to "adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity" (Bus. & Prof. Code § 19316); and XV. The Act further expressly allows local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent Ordinance No. 700 Page 2 not to administer a conditional permit program pursuant to Health & Safety Code Section 11362.777 for the cultivation of marijuana (Health & Safety Code § 11362. 777(c)(4)); xvi. The Act requires a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section 19300. 5 (m), from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Bus. & Prof. Code § 19340(a)); xvii. Under the dual licensing system created by the Act, before any kind of medical marijuana license will be issued by the State, the applicant must have obtained the necessary local license and/or permit for the requested marijuana-related use; and xviii. Pursuant to the following statutes created by the Act, local jurisdictions that adopt a ban on medicinal marijuana dispensaries, cultivation and/or mobile delivery will effectively have a "veto" over whether a state license for the locally regulated activities can be issued: 1 Business & Professions § 19320(b): "A licensee shall not commence [commercial cannabis] activity under the authority of a state license until the applicant has obtained, in addition to the state license, a license or permit from the local jurisdiction in which he or she proposes to operate, following the requirements of the applicable local ordinance." 2. Health & Safety Code § 11362.777(b)(1): "A person shall not cultivate medical marijuana without first obtaining . . . A license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city. . in which the cultivation will occur." 3. Business & Professions Code § 19320(b): "Revocation of a local license, permit or authorization shall terminate the ability of a medical cannabis business to operate within that local jurisdiction. . ." 4. Business & Professions Code § 19312: "Each licensing authority may suspend or revoke licenses. . . ." The City hereby re-affirms and confirms that the City's Zoning Code is adopted and operates under the principles of permissive zoning, meaning that any land use not specifically authorized or identified in the zoning code is prohibited; and XX. California Health & Safety Code Section 11362.777(b)(3) expressly provides that the Department of Food and Agriculture may not issue a state license to cultivate medical marijuana within a city that prohibits cultivation under the principles of permissive zoning; and Ordinance No. 700 Page 3 xxi. Several California cities have reported negative impacts of marijuana cultivation, processing and distribution activities, including but not limited to offensive odors, criminal activity — including trespassing, theft, violent robberies and robbery attempts, and the illegal sale and distribution of marijuana, and public health concerns including fire hazards and problems associated with mold, fungus, and pests; and Marijuana plants, as they begin to flower and for a period of two months or more, produce a strong odor, offensive to many people, and detectable far beyond property boundaries if grown outdoors; and xxiii. Due to the value of marijuana plants and their strong smell (which alerts others to their locations), marijuana cultivation has been linked to break-ins, robbery, armed robbery, theft and attendant violence and injury, creating an increased risk to public safety and/or "attractive nuisance"; and >ociv. The indoor cultivation of marijuana has potential adverse effects to the structural integrity of the buildings in which it is cultivated, and the use of high wattage grow lights and excessive use of electricity increases the risk of fire, which presents a clear and present danger to the building and its occupants; and The 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 xxvi. 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 activities; and xxvii. Based on the findings set forth above and herein, the potential establishment of the cultivation, processing and distribution of medical marijuana in the City without an express ban on such activities poses a current and immediate threat to the public health, safety, and welfare in the City due to the negative impacts of such activities as described above; and xxviii. The issuance or approval of business licenses, subdivisions, use permits, variances, building permits, or any other applicable entitlement for marijuana cultivation, processing, delivery, and/ or distribution will result in the aforementioned threat to public health, safety, and welfare; and Pursuant to the above-described express statutory authority and its police power, the City has determined that, in addition to the existing prohibition on the establishment of medicinal marijuana dispensaries codified in the Ordinance, an express prohibition on the cultivation and delivery of marijuana is needed to protect the public health, safety and welfare; and Ordinance No. 700 Page 4 xxx. In light of the findings and determinations set forth herein and further advanced during the public hearing on this matter, the City now desires to amend Title 17 of the Irwindale Municipal Code to further prohibit cultivation and mobile dispensaries pursuant to the new state law requirements (AB 266 and AB 243), and to make other miscellaneous edits to effectuate the same (the "Amendments"); and The Amendments would affect all properties city-wide; and On December 16, 2015, the Planning Commission conducted a duly noticed public hearing on the proposed Amendments and unanimously recommended that the City Council adopt the same; and xxxiii. On January 13, 2016, the City's City Council conducted a duly noticed public hearing on the proposed Amendments, and all testimony received was made a part of the public record; and xxxiv. The City Council has duly considered all information presented to it, including the Planning Commission findings, PC Resolution 669(15), written staff reports, and any testimony provided at the public hearing; and The City of Irwindale is authorized by Article XI, Section 5 and Section 7 of the California Constitution to exercise the police power of the State by adopting regulations, such as the Amendments, to promote public health, public safety, and general prosperity. All legal prerequisites to the adoption of this ordinance have occurred. B. ORDINANCE NOW, THEREFORE, the City Council of the City of Irwindale does hereby ordain as follows: Section 1. The City Council finds that the above recitals are true and correct and are incorporated herein by this reference. Additionally, the City Council finds as follows: A. The cultivation and dispensing of marijuana, both fixed and mobile, has significant impacts or the potential for significant impacts on the City. These impacts include damage to residences and other buildings, dangerous electrical alterations and use, inadequate ventilation, and the nuisance of strong and noxious odors. Additionally, there is evidence of an increased incidence of crime-related secondary impacts in locations associated with medical marijuana dispensaries, cultivation and the mobile delivery of same. The proposed Amendments will further the public health, safety and general welfare. The proposed Amendments to the Ordinance will prohibit marijuana and medical marijuana dispensaries, cultivation and the mobile delivery of same within the City limits and will help protect the public health, safety and general welfare of the City and its residents. They will also mitigate or reduce Ordinance No. 700 Page 5 the crime-related secondary impacts associated with medical marijuana dispensaries, cultivation and the mobile delivery of same, which is contrary to policies that are intended to promote and maintain the public's health, safety and welfare. These prohibited services will help preserve the City's law enforcement services, in that monitoring and addressing the negative secondary effects and adverse impacts will likely burden the City's law enforcement resources. C. The proposed Amendments will not adversely affect adjoining property as to value, precedent or be detrimental to the area. The proposed Amendments to the Ordinance will further solidify the City's stance on prohibiting medical marijuana dispensaries, cultivation, and the mobile delivery of same. The prohibition of these uses will help protect property values in the City and discourage a wide range of illicit activities associated with the sale, cultivation and dispensing of marijuana and/or medical marijuana, D. The proposed Amendments are consistent with the General Plan and are in compliance with all applicable provisions of the Zoning Code and other ordinances and regulations of the City. The proposed amendments prohibiting marijuana and medical marijuana dispensaries, cultivation, and the mobile delivery of same within the city limits are consistent with the existing language of 17.32.015, of the municipal code. E. The proposed Amendments are consistent with Federal Law. The possession, cultivation, use, and dispensing of marijuana continues to be illegal under Federal law. The Federal Controlled Substances Act classifies marijuana as "Schedule I Drug," which is defined as a drug or other substance that has a high potential for abuse, and makes it unlawful for any person to cultivate or dispense marijuana. The Controlled Substance Act contains no statutory exemption for the possession of marijuana for medical purposes. Section 2. The definition of "medical marijuana dispensary" in section 17.08.376 of Chapter 17.08 of Title 17 is hereby deleted in its entirety. Section 3. The following definitions are hereby added to Chapter 17.08 of Title 17 and shall now read as follows: 17.08,154 - Delivery. "Delivery" shall have the same meaning as set forth in Business and Professions Code section 13900.5(m). 17.08.366 - Marijuana. "Marijuana", also known as cannabis, means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, or any hybrids, derivatives or strains, thereof, whether growing or not; the seeds thereof; the resin or separated resin, whether crude or purified, extracted from any part of the plant; and every compound, Ordinance No. 700 Page 6 manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, including marijuana infused in foodstuff or other ingestible or consumable product containing marijuana. The term "marijuana" shall also include "medical marijuana" as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the state of California or subject to the provisions of California Health and Safety Code section 11362.5 (Compassionate Use Act of 1996) or the California Health and Safety Code sections 11362.7 to 11362.83 (Medical Marijuana Program Act). 17.08.367 — Marijuana Cultivation. "Marijuana Cultivation" means growing, planting, harvesting, drying, curing, grading, trimming, or processing of marijuana. 17.08.368 — Marijuana Processing. "Marijuana Processing" means any method used to prepare marijuana or its byproducts for commercial retail and/or wholesale, including but not limited to: drying, cleaning, curing, trimming, packaging, testing, and extraction of active ingredients to create marijuana related products and concentrates. 17.08.373 - Medical Cannabis. "Medical cannabis", also known as "medical cannabis product," or "cannabis product", means a product containing cannabis, including, but not limited to, concentrates and extractions, intended to be sold for use by medical cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Health and Safety Code section 11362.5). 17.08.376 — Marijuana Dispensary. "Marijuana Dispensary", also known as "Medical Marijuana Dispensary," means any association, business, office, facility, use, establishment or location, retail storefront, provider or wholesale component of any establishment, cooperative or collective that delivers (as defined in Business and Professions Code section 19300.5(m) or any successor statute) whether mobile or otherwise, dispenses, distributes, exchanges, transmits, transports, sells or provides marijuana to any person for any reason, including members of any medical marijuana cooperative or collective consistent with the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the Office of the Attorney General for the state of California, or for the purposes set forth in California Health and Safety Code section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code sections 11362.7 to 11362.83 (Medical Marijuana Program Act), A "Marijuana Dispensary" shall not include the following uses, as long as the location of such uses is otherwise regulated by this code or application law: a clinic licensed pursuant to chapter 1 of division 2 of the Health and Safety Code, a healthcare facility licensed pursuant to chapter 2 of division 2 of the Health and Safety Code, a facility licensed pursuant to chapter 2 of division 2 of the Health and Safety Code, a residential Ordinance No. 700 Page 7 care facility for persons with chronic life-threatening illness licensed pursuant to chapter 3.01 of division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to chapter 3.2 of division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to chapter 8 of division 2 of the Health and Safety Code, as long as such use complies strictly with applicable law including, but not limited to, Health and Safety Code section 11362.5 et seq. provided, however, that cultivation for any purpose shall not be permitted. 17.08.377 - Mobile Marijuana Dispensary. "Mobile Marijuana Dispensary" means any business, office, store, facility, location, retail "storefront" or wholesale component of any establishment, cooperative, collective, club or entity of that nature that transports or delivers (as defined in Business & Professions Code § 193500(m) or any successor statute thereto), or arranges the transportation or delivery of marijuana and/or medical marijuana for any purpose, 17.08.401 — Operation. "Operation" means any effort to locate, operate, own, lease, supply, allow to be operated, or aid, abet or assist in the operation of a marijuana dispensary, fixed or mobile. 17.08.403 — Person. "Person" means any person, firm, corporation, association, club, society, or other organization. The term "person" shall include any owner, manager, proprietor, employee, volunteer or salesperson. Section 4. Chapter 17.110 of Title 17 of the Irwindale Municipal Code is hereby added and shall read as follows: Chapter 17.110 MEDICAL MARIJUANA 17.110.010 17.110.020 17.110.030 17.110.040 17.110.050 Section 17.110.010 Purpose. Purpose. Findings. Prohibition. Use or activity prohibited by state or federal law. Enforcement. The purpose of this Chapter is to prohibit the establishment of marijuana and medical marijuana dispensaries, cultivation of marijuana, and mobile delivery or distribution of marijuana, as defined herein, in any zone located within the City of Irwindale. Section 17.110.020 Findings. In adopting the prohibitions codified in this Chapter, the City Council makes the following findings and determinations: Ordinance No. 700 Page 8 A. The prohibitions on marijuana cultivation, marijuana processing, marijuana delivery, and marijuana dispensaries are necessary for the preservation and protection of the public health, safety, and welfare for the City and its community. The City Council's prohibition of such activities is within the authority conferred upon the City Council by its police power and state law. B. On October 9, 2015, the governor signed the "Medical Marijuana Regulation and Safety Act" (the "Act") into law. The Act becomes effective January 1, 2016 and contains new statutory provisions that: 1. Allow local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health & Safety Code section 11362. 777 for the cultivation of marijuana (Health & Safety Code § 11362.777(c)(4)); 2. Expressly provide that the Act does not supersede or limit local authority for local law enforcement activity, enforcement of local ordinances, or enforcement of local permit or licensing requirements regarding marijuana (Bus. & Prof. Code § 19315(a)); 3. Expressly provide that the Act does not limit the authority or remedies of a local government under any provision of law regarding marijuana, including but not limited to a local government's right to make and enforce within its limits all police regulations not in conflict with general laws (Bus. & Prof. Code § 19316(c)); and 4. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section 19300.5(m) of the Act, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Bus. & Prof. Code § 19340(a)). C. It is recognized that the Federal Controlled Substances Act, codified at 21 U.S.C. Section 801 et seq., classifies marijuana as "Schedule I Drug," which is defined as a drug or other substance that has a high potential for abuse. The Controlled Substances act makes it unlawful for any person to cultivate or dispense marijuana without regard to a claimed medical need. D. The City Council finds that this chapter: (1) expresses its intent to prohibit the cultivation of marijuana in the City and to not administer a conditional permit program pursuant to Health & Safety Code section 11362.777 for the cultivation of marijuana in the City; (2) exercises its local authority to enact and enforce local regulations and ordinances, including those regarding the permitting, licensing, or other entitlement of the activities prohibited by this chapter; (3) exercises its police power to enact and enforce regulations for the public benefit, safety, and welfare of the City and its community; and (4) expressly prohibits the delivery of marijuana in the City. Ordinance No. 700 Page 9 Section 17.110.030 Prohibition. A. The establishment and/or operation of a medical marijuana dispensary is prohibited in all zones throughout the City. B. Marijuana cultivation, marijuana processing, and delivery of marijuana or medical cannabis products are prohibited activities in the city, except where the City is preempted by federal or state law from enacting a prohibition on any such activity. C. Mobile Marijuana Dispensaries. The establishment or operation of a mobile marijuana dispensary shall be prohibited in all zones throughout the City. 1. No person shall locate, operate, own, suffer, allow to be operated or aid, abet, or assist in the operation of any mobile marijuana dispensary within the City. 2. No person shall deliver and/or dispense marijuana and/or medical marijuana to any location within the City from a mobile marijuana dispensary or any other vehicle or method, regardless of where the mobile marijuana dispensary or vehicle is located, or engage in any operation for this purpose. 3. No person shall deliver and/or dispense any marijuana-infused product such as tinctures, baked goods or other consumable products, to any location within the City from a mobile marijuana dispensary, or any other vehicle or method, regardless of where the mobile marijuana dispensary or vehicle is located, or engage in any operation for this purpose. D. Marijuana-Related Licenses and Permits. No permit or any other applicable license or entitlement for use, whether administrative or discretionary, including, but not limited to, the issuance of a business license, shall be approved or issued for the establishment or operation of a marijuana dispensary within the city limits, the establishment or operation of a mobile marijuana dispensary within the city limits, marijuana cultivation, marijuana processing or marijuana delivery, and no person shall otherwise establish or conduct such activities in the City, except as otherwise expressly allowed by federal or state law. Section 17.110.040 Use or activity prohibited by state or federal law. Nothing contained in this chapter shall be deemed to permit or authorize any use or activity, which is otherwise prohibited by any state or federal law. Section 17.110.050 Enforcement. The violation of any provision in this Chapter shall be and is declared to be a public nuisance and contrary to the public interest and shall, in addition to any other remedy and, at the discretion of the city, create a cause of action for injunctive relief. Violations of this Chapter may further be enforced pursuant to the provisions of Title 1 of the City's Municipal Code or any other applicable law. Ordinance No. 700 Page 10 Watt_ a M. Nieto, CMC uty City Clerk Section 5. Section 17.32.015 of Chapter 17.32 of Title 17 of the Irwindale Municipal Code is hereby repealed in its entirety. Section 6. The City Council finds the introduction and adoption of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Section 7. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional. Section 8. The City Clerk shall certify to the passage and adoption of this ordinance by the City Council of the City of Irwindale and shall cause a summary of this ordinance to be published in accordance with Government Code Section 36933, in a newspaper of general circulation which is hereby designated for that purpose, and this ordinance shall take effect thirty (30) days after its passage. PASSED, APPROVED, AND ADOPTED this 27 th day of Januar 2016, Mark • Breceda, Mayor ATTEST: Ordinance No. 700 Page 11 STATE OF CALIFORNIA COUNTY OF LOS ANGELES 1 ss. CITY OF IRWINDALE I, Laura M. Nieto, Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Ordinance No. 700 was duly introduced at a regular meeting of the Irwindale City Council held on the 13 th day of January 2016, and was duly approved and adopted on second reading at its regular meeting held on the 27 th day of January 2016 by the following vote of the Council: AYES: Councilnnembers: Ambriz, Burrola, Garcia, Ortiz, Mayor Breceda NOES: Councilmembers: None ABSENT: Councilmennbers: None ABSTAIN: Councilmembers: None a)1(1 .71/uL1 -6 AFFIDAVIT OF POSTING I, Laura M. Nieto , Deputy City Clerk, certify that I caused a copy of Ordinance No.700, adopted by the City Council of the City of lrwind t its regular meeting held January 27, 2016 to be posted at the City Hall, Library, and Post Office on January 28, 2016. Dated: 1/2 Ordinance No. 700 Page 12