HomeMy WebLinkAboutStaff Report 4.C 11/16/2015DATE:
November 16, 2015
Agenda Item #4.0
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Patrick Williams, Police Chief
SUBJECT: Introduction of an Ordinance Modifying Chapter 10. 15, "Medical Marijuana," of
Title 10 Peace, Safety, and Morals, Part III Offenses Against Public Health and
Safety of the City of Petaluma Municipal Code, by amending Sections 10.15.10,
"Purpose ", Section 10.15.020, "Definitions ", Section 10.15.030; "Prohibition of
Medical Marijuana Dispensaries ", and Section 10.15.040; "Public Nuisances"
RECOMMENDATION
It is recommended that the City Council introduce the attached Ordinance Modifying Chapter
10.15, "Medical Marijuana," of Title 10 Peace, Safety, and Morals, Part III Offenses Against
Public Health and Safety of the City of Petaluma Municipal Code, by amending Sections
10.15.10, "Purpose ", Section 10.15.020, "Definitions ", Section 10.15.030; "Prohibition of
Medical Marijuana Dispensaries ", and Section 10.15.040; "Public Nuisances ".
BACKGROUND
The issue of cultivating marijuana in Petaluma arises periodically, in 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 electrical fires 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. On September 23, 2015, the City Council conducted a
workshop to consider staff recommendations for regulations that would not prohibit the
cultivation of marijuana for medical purposes in areas zoned for residential use. The City
Council provided additional guidance to staff, and asked that an ordinance be returned for further
City Council consideration and approval.
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 ", which creates a limited exception from criminal liability for seriously ill 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).).
The Medical Marijuana Program (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, §
11362.7(e).)
On January 21, 2007, the City Council adopted Ordinance No. 2269 N.C.S., adding Chapter
10.15 to the Municipal Code, which prohibited dispensaries within the City limits of Petaluma.
The Ordinance was written to protect residents from the secondary impacts associated with
dispensaries, such as illegal sales, loitering, fraud, assaults and other crimes, and to prevent
increased demands for police response resulting from those activities. Chapter 10.15 did not
address marijuana cultivation.
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 CalAth 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.
Recently three bills, AB 243, AB 266, and SB 643, related to medical marijuana were signed by
the Governor. The three bills were triple joined and signed as a package. The legislation created
a statewide regulatory license program for marijuana cultivation similar to that of alcohol: the
state licenses the distributer /retailer, but cities still retain local control through regulation of the
land use. It will not impact the City's ability to prohibit marijuana dispensaries or cultivation.
On Friday, November 6, 2015, staff from the Police Department met with Kumari Sivadas with
Sonoma Alliance for Medical Marijuana (SAMM), Executive Director Tawnie Logan with the
Sonoma County Growers Alliance (SCGA), and Sarah Shrader with Americans For Safe Access
(AFSA). All three local organizations provide support services for MMP patients. They
expressed interest in working with the City to develop local regulations. The dialogue was
productive and they appreciated the work by staff to address nuisance issues while respecting
patient rights. After review of the proposed ordinance they asked that we consider the
following:
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• They requested the City of Petaluma follow the same local regulations adopted by the
County of Sonoma.
• Remove the restriction of 10% of the living area required under the proposed ordinance.
• Provide a permit process and benefit from the local tax revenue.
Medical marijuana laws can be 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 exposing residents and endangering first responders and neighbors to potential
hazards; 3) exposing residents to 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.
Recent trends indicate an increase in the use of homes in Petaluma for cultivation for illegal
commercial sale, caregiver, and for qualified patients, including:
• Of the more than 30 community town hall meetings held since 2013, marijuana
cultivation in neighborhoods has remained one of the top five neighborhood complaints
made by the residents of Petaluma.
• 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
grows.
DISCUSSION
Were it not for the legitimate needs of some individuals for medical marijuana and to cultivate
limited quantities for personal use and for caregivers, and because of the public safety and
nuisance impacts discussed in the foregoing paragraphs, it would be otherwise be staff's
recommendation to prohibit marijuana cultivation in the same way the City Council has banned
marijuana dispensaries. However, based on the feedback obtained from the City Council during
the September 23, 2015 workshop, which recognizes the legitimate needs of a segment of the
community for medicinal marijuana, and to ensure the health safety of our community by
imposing a regulatory framework, an ordinance has been prepared that incorporates
modifications to the existing Medicinal Marijuana ordinance (Attachment 1).
The attached ordinance addresses the concerns expressed by a majority of the Council that
cultivation should not occur inside the living areas of structures. Some Council members were in
favor of, or were not opposed to, outdoor cultivation. Because of nuisances such as odor,
attractiveness to theft and related criminal activity, and potentially vicious dogs used to guard
outdoor crops, outdoor cultivation continues to be one of the activities prohibited by the
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proposed ordinance. The Council also expressed concerns regarding excessive energy use and
adequate ventilation; these considerations are addressed in the attached document. In summary,
the provisions of the ordinance which is recommended to the Council for its approval include:
• No person other than a qualified patient or primary caregiver as defined by law may
engage in cultivation of medical marijuana.
• Either a qualified patient or primary caregiver shall reside full -time on the premises
where the medical marijuana cultivation occurs.
• Open outdoor cultivation of medical marijuana is prohibited.
• Cultivation of medical marijuana is prohibited in all agricultural, commercial, office,
industrial, open space, special purpose, and overlay /combining zoning districts.
• Grow lights shall not exceed one thousand two hundred (1,200) watts. The use of
generators shall not be used within any detached structure used for the cultivation of
medical marijuana.
• Use of gas products is prohibited..
• From a public right of way, there shall be no exterior evidence of medical marijuana
cultivation either inside or outside the residence.
• Cultivation shall only occur inside of residences which are in full compliance with this
code, including the building code and fire code.
• Cultivation shall not exceed 50% of the non - living area/garage area or 100 square feet,
whichever is lesser, and shall not displace any space required for parking on -site.
• Cultivation shall remain at all times a secondary or accessory use to the residential use of
the residence.
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 the 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.
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. Ordinance
M
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 enable persons who are in need of marijuana for
medical purposes to obtain and use it under limited, specific circumstances; and
WHEREAS, on January 1, 2004, senate Bill 420, known as the "Medical Marijuana
Program" (codified at Health and Safety Code section 11362.7 through 11362.83) ( "MMP ")
became effective to clarify the scope of the CUA; and
WHEREAS, the CUA is limited in scope in that it only provides a defense from criminal
prosecution for possession and cultivation of marijuana to qualified patients and their primary
caregivers; establishes a statewide identification program and affords qualified patients, persons
with identification cards and the primary caregivers an affirmative defense to certain enumerated
criminal sanctions that would otherwise apply to transporting, processing, administering or
distributing marijuana; and
WHEREAS, neither the CUA nor the MMP require or impose an affirmative duty or
mandate upon local governments, such as the City of Petaluma, to allow, authorize or sanction
the establishment and the operation of facilities cultivating, distributing, or processing medical
marijuana within its jurisdiction; and
WHEREAS, on May 5, 2013, the California Supreme Court issued its opinion in City of
Riverside v. Inland Empire Patients Health and Wellness Center, Inc., (2013) 56 CalAth 729,
which 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; and
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WHEREAS, on November 26, 2013, the Third District Court of Appeal issued its
opinion in Maral v. City of Live Oak (2013) 221 Cal.App.4th 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
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, 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
conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 841,
by permitting, or otherwise authorizing, any activity which is lawfully and constitutionally
prohibited under the Act; and
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WHEREAS, mindful 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
illegal.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF PETALUMA AS FOLLOWS:
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.
"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 113 62.7, 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.
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"Residence" means a legal dwelling unit and all detached structures such as garages, sheds,
greenhouses, and other structures on the same legal parcel(s) as the dwelling unit.
Section 10.15.030 Prohibition of medical marijuana dispensaries is hereby repealed in its entirety
and replaced with the following section:
10.15.030 Prohibition of Medical Marijuana Dispensaries and Cultivation
A. It shall be unlawful for any person to engage in, conduct or carry on, 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, conduct or 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, shall not exceed 50% of the non - living area/garage
area or 100 square feet, whichever is lesser, and shall not displace any space required
for parking on -site; 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.).
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, clause, phrase or word of this ordinance is for
any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent
jurisdiction or preempted by state legislation, such decision or legislation shall not affect the
validity of the remaining portions of this ordinance. The City Council of the City of Petaluma
hereby declares that it would have passed and adopted this ordinance and each and all provisions
thereof irrespective of the fact that any one or more of said provisions be declared
unconstitutional, unlawful or otherwise invalid.
Section 7: The City Clerk is hereby directed to publish or post this ordinance or a synopsis
for the period and in the manner provided by the City Charter and any other applicable law.
INTRODUCED and ordered posted /published this day of , 2015.
ADOPTED this day of
AYES:
NOES:
ABSENT:
ABSTAIN:
2015 by the following vote:
David Glass, Mayor
we
ATTEST:
APPROVED AS TO FORM:
Claire Cooper, City Clerk Eric Danly, City Attorney
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