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HomeMy WebLinkAboutStaff Report 1.A 09/28/2015Agenda Item #1.A DATE: September 28, 2015 TO: Honorable Mayor and Members of the City Council through City Manager " FROM: Patrick Williams, Police Chief SUBJECT: Conduct a Workshop on Marijuana Cultivation and Consider, as Appropriate, a Proposed Ordinance Modifying Chapter 10. 15, "Medical Marijuana ". RECOMMENDATION Conduct a workshop on Marijuana cultivation and consider, as appropriate, a proposed Ordinance Modifying Chapter 10. 15, "Medical Marijuana ". BACKGROUND The issue of cultivating marijuana in Petaluma arises periodically, in a number of contexts: requests for permitting from those who are interested in conducting commercial cultivation; interest shown by individuals who want to cultivate for personal medicinal use; in public safety incidents that include fires from faulty wiring or ignition of chemical substances utilized in the cultivation process; from crimes occurring at grow sites; and from neighborhood concerns regarding odors, late night traffic, and related nuisances. Accordingly, the City Council has indicated interest in discussing the subject of marijuana cultivation, Federal and State Legal Framework In 1970, Congress enacted the Controlled Substance Act (CSA) which, among other things, makes it illegal to import, manufacture, distribute, possess, or use marijuana in the United States. Marijuana is still considered illegal under federal law as it exists today. In 1996, the voters of the State of California approved Proposition 215, which is codified as Health and Safety Code section 11362.5, et seq., also known as "The Compassionate Use Act of 1996 ". The intent of the act is to create a limited exception from state criminal liability for persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. Proposition 215 expressly anticipates the enactment of additional local legislation. It provides: "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non - medical purposes." (Health and Safety Code section 11362.5(b)(2).) On January 1, 2004, SB 420 went into effect. SB 420, known as the "Medical Marijuana Program" ( "MMP ") was enacted by the State Legislature to clarify the scope of the act and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420. (Health and Safety Code, § 11362.7, et seq.) The MMP establishes the term "qualified patient," defined as a person whose physician has recommended the use of marijuana to treat a serious illness or any other illness for which marijuana provides relief. (Health and Safety Code, § 11362.7(f); see also § 11362.5(b)(1)(a).) The MMP also establishes the term "primary caregiver," defined as a person who is designated by a qualified patient and "has consistently assumed responsibility for the housing, health, or safety" of the patient." (Health and Safety Code, § 11362.7(d0; see also § 11362.5(e).) Either a qualified patient or a primary caregiver for a qualified patient has immunity from state criminal liability for possession of marijuana. (Health and Safety Code, § 113623(e).) Following enactment of Proposition 215 and SB 420, there was extensive litigation regarding the extent that cities and counties could regulate medical marijuana. In 2013, the California Supreme Court finally settled the issue. In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., (2013) 56 Cal.4th 729, the California Supreme Court held that cities have the authority to ban medical marijuana uses within their boundaries and prohibit any use that constitutes a violation of state or federal law. In the same year, following the Riverside case, the Third District Court of Appeal held cities have the authority to ban marijuana cultivation within their boundaries. Thus, it is now settled that cities have the authority to ban both marijuana dispensaries and cultivation under the law as it exists today. There are three bills, AB 243, AB 266, and SB 643, related to medical marijuana that have been forwarded to the Governor for signature. The three bills have been triple joined, meaning that they all must be signed by the Governor, or all will fail. Given the Governor's Office input on the legislation prior to it being forwarded to the Governor, it is anticipated that the Governor will sign the bills. Overall, the three bills are intended to create a statewide regulatory license program for marijuana cultivation. It is staff's understanding that the proposed statewide regulatory license program is to be similar to that of alcohol: the state licenses the distributer /retailer, but cities still retain local control through regulation of the land use. Thus, it is anticipated that if these bills are enacted, they will not impact the City's ability to prohibit marijuana dispensaries or cultivation. Petaluma Regulations Within the City, dispensaries are explicitly prohibited. In 2007, the City of Petaluma adopted Ordinance No. 2269 N.C.S. prohibiting medical marijuana dispensaries within the City. Ordinance No. 2269 N.C.S. is codified as Chapter 10.5 of the Petaluma Municipal Code. It does not address cultivation. Although the Petaluma Municipal Code is silent as to marijuana cultivation, the City Attorney's Office has opined that marijuana cultivation is probably not an allowed use within the City. In general, only uses that are specified as allowed uses in the Implementing Zoning Ordinance (IZO) are allowed. (IZO, §3.030.A.) If it is not allowed, it is otherwise prohibited unless the Planning Manager finds that the proposed use is similar to an allowed use. (IZO, §3.030.C.1.) There has been some debate as to whether marijuana cultivation is similar to a plant nursery as defined in the IZO. The City Attorney's Office has also opined that it may be difficult to make the findings necessary to determine that marijuana cultivation is similar to a plant /nursery because marijuana cultivation is associated with public safety and nuisance impacts in a way that a regular plant nursery is not, and because marijuana cultivation is illegal under federal law. Impacts from Marijuana Cultivation Medical marijuana laws are sometimes used by subjects in Petaluma to skirt the law to grow marijuana illegally for commercial sale. This is typically achieved by subjects obtaining Proposition 215 cards from multiple medical marijuana patients and using these cards to grow additional marijuana for commercial sale. The unclear distinction between medical and illegal commercial cultivation and the lack of regulation for medical marijuana cultivation creates difficulties for law enforcement and the community by: 1) enabling large indoor cultivation areas in homes which reduces the quality and quantity of housing; 2) increasing building and fire code violations, thus endangering first responders and neighbors to potential hazards; 3) exposing residents to building and fire code violations, and health hazards from mold and water damage; 4) creating increased nuisance conditions in neighborhoods; and 5) increasing other illegal activities such as the frequency of, home invasion robberies, gun use and a loss of a neighborly community. Staff is prepared to discuss these impacts in greater detail, as well as trends in marijuana cultivation - related complaints and crime, should the Council find that helpful to the workshop discussion. In general, recent trends indicate an increase in the use of homes in Petaluma for cultivation for illegal commercial sale, caregiver, and for qualified patients, include; • Complaints from property owners who have rented their homes and have subsequently discovered that the renters have converted their homes to indoor marijuana grows. • A significant increase in home invasion robberies. Recent attacks have involved guns and assaults. • An increase in the number of complaints from neighbors about an indoor or outdoor grow. • An increase in the number of businesses that sell hydroponic supplies, which are used primarily for indoor cultivation of crops, particularly marijuana. DISCUSSION Overall, staff recommends a prohibition on marijuana cultivation because of the public safety and nuisance impacts associated with marijuana cultivation. However, to address the needs of people with legitimate needs for medicinal marijuana and to ensure the health safety of our community, staff suggests the City Council use the workshop setting weigh the benefits and drawbacks of marijuana cultivation in the community, and if appropriate to consider allowing a small exception to the prohibition. Staff has taken the liberty of developing an amendment to Chapter 10.5 of the Municipal Code, to explicitly address marijuana cultivation, which is provided for discussion purposes. (Attachment 1). In summary, the exception does not prohibit an individual who cultivates marijuana for either qualified individual use or the use of a qualified patient if the individual is a primary giver, provided cultivation is done in a safe manner that cannot be detected from outside the residence. Specifically, the proposed ordinance provides for an exception in the following circumstances: ■ Limited to marijuana for the personal use of one qualified patient and at all times shall remain an accessory use to the primary residence of either the qualified patient or his or her primary caregiver, and in no event, shall it exceed cumulatively 10 percent of the square footage of the living space of the residence (excluding basements and garage from the calculation), or 100 square feet, whichever is lesser; and ■ Limited to those areas within a fully enclosed and secure structure where there is no visual or olfactory evidence of cultivation detectable from the public right of way; and ■ That does not utilize lighting that exceeds 1,200 watts and that does not require the use of a generator; and ■ That does not use gas products (CO2, butane, etc.). The proposed ordinance creates an exception to the prohibition, as opposed to establishing a permit scheme. The reason for this approach is that marijuana is still considered an illegal substance under federal law. Thus, the ordinance provides for the limited circumstances under which City will not enforce its prohibition on marijuana cultivation without expressly authorizing any marijuana related activity. This avoids involving the City and City officials in activity that purports to authorize violations of federal law. If the Council wishes to approve the aforementioned changes, it is recommended that Chapter 10.5 be modified so that all regulations related to marijuana are found in one place in the municipal code, to facilitate both notice to the public and enforcement by staff. None of the proposed changes impact the prohibition on medical marijuana dispensaries. Enforcement of the Proposed Ordinance The Police Department will investigate and enforce criminal violations under existing state and federal law. Code Enforcement will enforce violations of this municipal code where applicable. FISCAL IMPACT: City departments will expend staff time investigating complaints, conducting inspections and enforcing violations. Recent case law decisions diminish or completely eliminate any concern for legal challenges to local regulations like the ones proposed by staff in the report. Fines and cost recovery can be sought for violations of the any City ordinance or criminal violation. ATTACHMENTS: 1. Suggested Ordinance 4 ATTACHMENT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA MODIFYING CHAPTER 10.15, "MEDICAL MARIJUANA" OF THE CITY OF PETALUMA MUNICIPAL CODE TO PROHIBIT SPECIFIED CULTIVATION IN THE CITY OF PETALUMA WHEREAS, in 1996 the voters of the state of California approved Proposition 215 which was codified as Health and Safety Code section 11362.5, et seq., and entitled "The Compassionate Use Act of 1996" ( "CUA "); and WHEREAS, the intent of the Act was to en medical purposes to obtain and use it under limited, WHEREAS, on January 1, 2004, Program" (codified at Health and Safety became effective to clarify the scope of the WHEREAS, the CUA is li prosecution for possession and cu caregivers; establishes a statewide with identification cards and the pi criminal sanctions that would of distributing marijuana; and - WHEREAS,'-neither the mandate upon local govezmxlent the establishment and the operai marijuana within its jurisdiction;! who are in need of marijuana for umstances; and 420, known as_ the "Medical Marijuana n 113 62.7 through. 11362.83) ( "MMP ") 1 in scope in`that it only'provides a defense from criminal ion of marijuana to, qualified patients and their primary tafieation program I grid affords qualified patients, persons y,caregivers an affirmative defense to certain enumerated Ise apply to transporting, ;'processing, administering or nor t1i e -N1MP require or impose an affirmative duty or as the City,,of Petaluma, to allow, authorize or sanction facilities cultivating, distributing, or processing medical WHEREAS, on WO, 20`13 "the California Supreme Court issued its opinion in City of Riverside v.1 inland Empire Patients Health and Wellness Center, Inc., (2013) 56 CalAth 729, which held thati'cities have the authority to ban medical marijuana uses within their boundaries and prohibit any use that constitutes a violation of state or federal law; and WHEREAS, on November 26, 2013,, the Third District Court of Appeal issued its opinion in Maral v. City,6 _Live Oak (2013) 221 Cal.AppAth 975, which held cities have the authority to ban marijuana cultivation within their boundaries; and WHEREAS, marijuana remains an illegal substance under the Federal Controlled Substances Act, 21 U.S.C. 801, et seq., which makes it unlawful for any person to cultivate, manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense marijuana for any reason, even though state law decriminalizes under state law the use of medical marijuana on limited terms and conditions; and ATTACHMENT 1 WHEREAS, the City of Petaluma Police Department, City residents and other public entities have reported adverse impacts from the outdoor cultivation of marijuana within the City, including offensive odors, increased risk of trespassing and burglary, and acts of violence in connection with the commission of such crimes or the occupants' attempts to prevent such crimes; and WHEREAS, the strong odor of marijuana plants, which increases as the plants mature, is offensive to many individuals and creates an attractive nuisance, alerting people to the location of valuable marijuana plants and creating an increased risk of crime; and WHEREAS, children are particularly vulnerable to the effects of marijuana use, and the presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children I such as schools, parks, and similar locations; and WHEREAS, to protect the public health, safety, and welfare, it is the desire of the City to modify the City of Petaluma Municipal Code by prohibiting the outdoor cultivation of marijuana within the city; and WHEREAS, it is the Council's, intention that nothing in this Chapter shall be deemed to in conflict with federal law as contained the Controlled Substances Act, 21 U.S.C. Section 841, by permitting, or otherwise authonzmg =any activity which;- is lawfully and constitutionally prohibited under the Act ;, and' WHEREAS, rtiindful of the fact that marijuana possession and use is prohibited under federal law and partially' decriminalized under state law, it is the Council's intention that nothing in this chapter shall be constructed; in any way,'to expand the rights of anyone to use or possess marijuana under state law; engage in any public nuisance; violate federal law, or engage in any activity,.in relation to the. cultivation, distribution, or consumption of marijuana that is otherwise N PETALI BY THE COUNCIL OF THE CITY OF Section 1: Chapter 10:15 of the Petaluma Municipal Code is hereby amended as follows: Section 10.15.010 Purpose is hereby amended to delete reference to "medical marijuana dispensaries" and replace with "medical marijuana dispensaries and cultivation ". The following definitions are added to Section 10.15.020: "Cultivation" means the planting, growing, harvesting, drying, trimming, clipping or processing of any kind or size of marijuana plants, or any part thereof. ATTACHMENT 1 "Fully enclosed and secure structure" means a code compliant space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more locking doors. "Primary caregiver" shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it may be amended and as interpreted by the California courts, including but not limited to the California Supreme Court case of People v. Mentch (2008) 45 Cal. 4th 274. "Qualified patient" shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it may be amended and as interpreted by the California courts. "Residence" means a legal dwelling unit and greenhouses, and other structures on the same J(, Section 10.15.030 Prohibition of medical marij and replaced with the following section; 10.15.030 Prohibition of Medical detached structures such as garages, sheds, parcel(s) as the dwelling unit. dispensaries is hereby repealed in its entirety d Cultivation A. It shall be unlawful for any person to engage in, conduct or carryon, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Petaluma, the operation of a medical marijuana dispensary. B. It shall be unlawful for any person to engage in, conductor carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Petaluma, the cultivation of marijuana other than cultivation 1. Limited to marijuana for the personal use of one qualified patient and at all times shall remain an accessory use to the primary residence of either the qualified patient or his or her primary caregiver, and in no event, shall it exceed cumulatively 10 percent of the square footage of the living space of the residence (excluding basements and garage from the calculation), or 100 square feet, whichever is lesser; and 2. Limited to those areas within a fully enclosed and secure structure where there is no visual or olfactory evidence of cultivation detectable from the public right of way; and 3. That does not utilize lighting that exceeds 1,200 watts and that does not require the use of a generator; and 4. That does not use gas products (CO2, butane, etc.). ATTACHMENT 1 Section 10.15.040 Establishment or maintenance of medical marijuana dispensaries declared a public nuisance is hereby repealed in its entirety and replaced with: Section 10.15.040 Public Nuisances. Any medical marijuana dispensary or cultivation or other use or activity caused or permitted to exist in violation of any section of this Chapter shall be and is hereby declared a public nuisance. Violations of this chapter may be enforced by any applicable laws or ordinances, including but not limited to Chapter 1.10 of this code. Section 5: The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act ( "CEQA "), pursuant to Sections 15061(b)(3)of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) because there is no possibility that the activity may have a significant impact on the - environment. Section 6: If any section, subsection, sentence, any reason held to be unconstitutional, unlawful jurisdiction or preempted by state legislation, "S' uc validity of the remaining portions of this ordinanc hereby declares that it would have passed and adol thereof irrespective of the fact that any one unconstitutional, unlawful or otherwise invalid. Section 7: The City Clerk is for the period and in the manner ATTEST: Claire Cooper, City Clerk by the fo lause, "phrase or word of this ordinance is for r otherwise invalid by a court of competent i decision or legislation shall not affect the The City Council:of the City of Petaluma .,d this ordinance and each and all provisions or more of said provisions be declared publish or,post this ordinance or a synopsis l Charter and any other applicable law. vote: David Glass, Mayor APPROVED AS TO FORM: Eric Danly, City Attorney 2015.