HomeMy WebLinkAboutStaff Report 4.A 01/04/2016DATE: January 4, 2016
Agenda Item #4.A
TO: Honorable Mayor and Members o the City Council through City Manager
I
FROM: Patrick Williams, Police Chie
Eric Danly, City Attorney I
SUBJECT: Introduction of an Ordinance Amending 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, which Prohibits Dispensaries in
the City, to Also Prohibit Specified Commercial Cannabis Activity, Cultivation
and Delivery of Medical Marijuana in the City of Petaluma
RECOMMENDATION
It is recommended that the City Council introduce the attached Ordinance Amending 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, which Prohibits Dispensaries
in the City, to Also Prohibit Specified Commercial Cannabis Activity, Cultivation and Delivery
of Medical Marijuana in the City of Petaluma.
BACKGROUND
The issue of cultivating marijuana in Petaluma arises frequently, 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 prohibit the cultivation of marijuana
in the City, except for limited cultivation for medical purposes in areas zoned for residential use.
The City Council provided additional guidance to staff, and asked that a revised 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 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., entitled "The Compassionate Use Act of 1996"
("CUA"), 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)).
On January 1, 2004, the Legislature adopted Senate Bill 420, known as the Medical Marijuana
Program ("MMP"), which was codified in Health and Safety Code Sections 11362.7 through
11362.83. 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, §1 1362.7(d); see also
§11362.5(e)) Qualified patients and primary caregivers for qualified patients have 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 Petaluma City limits. 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 the CUA and MMP, 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 of dispensary bans. 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 under their land use and police powers to restrict, limit or entirely exclude
facilities that distribute medical marijuana and to enforce such policies by nuisance actions. In
the same year, following the Riverside case, the Third District Court of Appeal held in Maral v.
City of Live Oak, (2013) 221 Cal.App.4th 975 that cities have the authority to ban marijuana
cultivation within their boundaries. Thus, it is now settled that California 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, collectively entitled the "Medical Marijuana
Regulation and Safety Act" ("MMRSA") were signed by the Governor. The three bills were
triple joined and signed as a package. The legislation creates a statewide regulatory and
licensing program covering a broad range of medical marijuana related activities, including
cultivation, commercial cannabis activity, transport, delivery, and physician recommendations of
medical marijuana. In some ways the new medical marijuana regulatory scheme is similar to
that governing alcohol, with the state licensing distributers/retailers, and local governments
retaining some local control through exercise of their police powers.
AB 243, part of the MMRSA regulating medical marijuana cultivation, prohibits in Health and
Safety Code Section 11362.777, subdivision (b), cultivating medical marijuana without first
obtaining both a permit from the local jurisdiction in which the cultivation will occur, and a state
2
license. Under this subdivision, if a local jurisdiction does not have land use regulations or
ordinances regulating marijuana cultivation in effect by March 1, 2016, the state will be the sole
licensing authority for medical marijuana cultivation in that jurisdiction. Apparently, the March
1 deadline remained in the final draft of the legislation by mistake, and Assemblyman Wood, the
bill's author, will be introducing urgency legislation to delete the deadline. However, the
urgency amendment is not expected to take effect prior to the current March 1 deadline.
Unless/until the March 1 deadline is removed, local agencies that do not have medical marijuana
cultivation regulations in effect prior to that time will be unable to regulate medical marijuana
cultivation.
Subdivision (g) of Section 11362.777 creates an exception from state licensing requirements for
qualified patients cultivating marijuana in cultivation areas that do not exceed 100 square feet for
their personal medical use and not for sale, distribution, donation, or provision to any other
person or entity, and for primary care givers cultivating marijuana in cultivation areas that do not
exceed 500 square feet exclusively for the personal medical use of not more than five specified
qualified patients for whom they act as primary caregivers without compensation except as
permitted by law. This exception in the MMRSA is important for local jurisdictions like
Petaluma that are considering banning medical marijuana cultivation, subject to an exception for
qualified patients and primary caregivers, because it excuses eligible qualified patients and
primary caregivers from obtaining state cultivation licenses, which they would be unable to
obtain without a local permit. City staff has advised against issuing medical marijuana permits,
because marijuana remains illegal under federal law. So far the City Council has indicated no
intention to issue local medical marijuana permits. Without the exception in subdivision (g) of
Section 11362.777, the City would need to issue local permits for qualified patients and primary
care givers to be able to cultivate medical marijuana without violating state law. Section
11362.777 also provides in subdivision (g) that the exemption in that section does not prevent
local jurisdictions from regulating or banning the cultivation, storage, manufacture, transport,
provision or other activity by exempt persons, or impair the enforcement of such regulations or
bans. In other words, the MMRSA expressly permits local agencies like Petaluma to ban local
cultivation of medical marijuana altogether, regardless of the exception for qualified patients and
primary caregivers in subdivision (g). If the City adopts a cultivation ban that includes an
exception for qualified patients and primary caregivers, the City can ban all marijuana cultivation
in the City, except that of qualified patients and primary caregivers in accordance with the
ordinance requirements, and eligible patients and primary caregivers can as a result avoid
violating local and state cultivation regulations.
AB 266, part of the MMRSA regulating commercial cannabis activity such as manufacturing,
distributing, processing, storing, testing, labeling, transporting, or selling medical cannabis or
medical cannabis products, provides in Business and Professions Code Section 19315,
Subdivision (a), that nothing in that chapter shall be interpreted 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. AB 266 provides in
Business and Professions Code Section 19340, subdivision (a) that medical marijuana deliveries
as defined can only be made by a dispensary and in a local jurisdiction that does not explicitly
prohibit it by a local ordinance. Together, these MMRSA provisions recognize the authority of
local jurisdictions to ban or otherwise regulate commercial cannabis activity like marijuana
processing, as well as local delivery of medical marijuana. SB 643, part of the MMRSA
regulating physician cannabis recommendations and commercial cannabis activity provides in
3
subdivision (a) of Section 19319 of the Health and Safety Code that qualified patients and
primary caregivers as defined are exempt from the licensing requirements under that chapter.
These statutes provide a legal basis for the City to ban commercial cannabis activity and
marijuana delivery while excluding from the ban delivery to qualified patients and primary
caregivers that is consistent with the ordinance. If the City adopts commercial cannabis and
delivery bans that include an exception for qualified patients and primary caregivers, they can
avoid violating local and state commercial cannabis and delivery regulation.
On November 6, 2015, staff from the Police Department met with representatives of the Sonoma
Alliance for Medical Marijuana (SAMM), the Sonoma County Growers Alliance (SCGA), and
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:
They requested the City of Petaluma follow the same local regulations adopted by the
County of Sonoma.
Removal of the restriction limiting the indoor cultivation areas that are not locally
prohibited to 50% of the non -living or garage area of a residence.
Provision of a permit process to benefit from the local tax revenue.
Medical marijuana laws can be used by subjects in Petaluma to skirt the law and 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 neighbors to potential hazards and endangering first
responders; 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, 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 indoor or outdoor grows.
M
On November 16, 2015, the Petaluma City Council considered, for introduction and first reading,
a draft ordinance prepared in response to its September guidance. That draft created a single
exception to a ban on cultivation: qualified individuals could utilize up to 100 square feet of non-
living, indoor space, at their residence. That exception would allow cultivation inside a house, or
in an enclosed ancillary structure, such as a garden shed, as long as the structure consisted of
opaque walls, a roof, and has a door with a lock. Based on testimony provided at the public
meeting, and similar correspondence, the City Council provided further direction related to
outdoor cultivation. A majority of the Council members were also in favor of excluding from
the City's cultivation ban limited outdoor cultivation for qualified patients and primary
caregivers consisting of up to three mature plants that can be cultivated outdoors, as part of the
100 square foot maximum. The timing of State legislation was also discussed, with respect to
completing Petaluma's regulatory changes so that they will take effect prior to March 1, 2016.
Subsequently, on December 1, 2015, the Fifth District Court of Appeal issued its opinion in
Kirby v. County of Fresno, (2015), which upheld a county ordinance banning medical marijuana
dispensaries, cultivation and storage, but invalidated the ordinance's classification of local
medical marijuana cultivation as a misdemeanor. The court held that Section 11362.71 of the
MMP preempts local criminalization of medical marijuana cultivation. Although the court in
Kirby v. County of Fresno invalidated on preemption grounds the local criminalization of
medical marijuana cultivation as a misdemeanor, the court noted that local prosecution of the
failure to abate a public nuisance involving medical marijuana cultivation is not preempted,
because the Legislature recognizes the failure to abate a public nuisance after notice as a separate
crime. The attached ordinance is consistent with the holding in Kirby, as is the existing Chapter
10.15 of the Petaluma Municipal Code, by defining violations of the chapter to be public
nuisances.
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, because of the public safety and nuisance
impacts discussed in the foregoing paragraphs, it would be staff's recommendation to completely
prohibit marijuana cultivation in the same way the City Council has banned marijuana
dispensaries. The feedback obtained from the City Council during the September 23, 2015
workshop recognized the legitimate needs of a segment of thecommunity for medicinal
marijuana, as well as the importance of ensuring the health and safety of our entire community.
Accordingly, staff has prepared an ordinance intended to exercise the local authority recognized
in the MMRSA and in the medical marijuana case law to ban within the City of Petaluma most
medical marijuana -related activity, including dispensaries, cultivation, commercial cannabis
activity and delivery, subject to specified exceptions for qualified patients and primary
caregivers. (Attachment 1). The limited exceptions for qualified patients and primary
caregivers in the attached ordinance are intended to work in conjunction with exemptions in the
MMRSA so that qualified patients and primary caregivers in Petaluma can cultivate and receive
delivery of sufficient medical marijuana without violating local or state law and without creating
nuisance conditions in the City that create safety risks and diminish the quality of life for all
citizens.
5
The proposed ordinance creates exceptions to local bans on medical marijuana activity, as
opposed to establishing a permit scheme. The reason for this approach is that marijuana is still
an illegal substance under federal law. Thus, the ordinance provides for limited circumstances
under which the City will not enforce its prohibition on marijuana cultivation and other
marijuana related activity 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
The attached ordinance addresses the concerns expressed by a majority of the Council that
cultivation should not occur inside the living areas of structures. A majority of the Council
members were also in favor of excluding from the City's cultivation ban limited indoor and
outdoor cultivation for qualified patients and primary caregivers. The attached ordinance
attempts to balance the health and welfare of medical marijuana patients and the health and
welfare of all Petaluma citizens by ensuring that the exceptions for qualified patients and
caregivers do not lead to public nuisances from marijuana odor, attractiveness to theft and related
criminal activity. 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 attached ordinance which would amend Chapter 10.15 of the
Petaluma Municipal Code concerning medical marijuana and which is recommended to the
Council for its approval include:
1. An updated purpose section to reflect the purposes behind expanding Chapter 10.15 to
address in addition to dispensaries medical marijuana cultivation, commercial cannabis
activity, and delivery.
2. A replacement definitions section that adds definitions required by the expanded chapter
and updates definitions to conform to definitions in the MMRSA.
3. An updated dispensary prohibition that also prohibits commercial cannabis activity,
subject to exceptions specified in the chapter.
4. A prohibition against marijuana cultivation, subject to specified exceptions for qualified
patients and primary caregivers.
5. A prohibition against medical marijuana delivery, subject to specified exceptions for
qualified patients and primary caregivers.
6. A revised prohibition against the granting of medical marijuana entitlements in the City,
consistent with the expanded purposes of the chapter.
7. A revised enforcement provision expanded to establish that all activity prohibited under
the chapter is a public nuisance.
The following requirements must be satisfied for qualified patients and primary caregivers to
qualify for the exception to the cultivation ban contained in the attached ordinance:
• Only qualified patients and primary caregivers as defined by law are eligible.
• Either a qualified patient or primary caregiver must reside full-time at the residence
where the medical marijuana cultivation occurs to qualify.
• No cultivation of medical marijuana in any agricultural, commercial, office, industrial,
open space, special purpose, or overlay/combining zoning districts is eligible for the
exception.
2
• Cultivation using grow lights that exceed one thousand two hundred (1,200) watts or
generators or gas products is not eligible for the exception.
• Only outdoor cultivation consisting of 3 or fewer mature plants is eligible for the
exception.
• Cultivation that can be seen or smelled from the public right of way or private property is
not eligible for the exception.
• Cultivation inside of residences that are not in full compliance with the City's Municipal
Code, including its building code and fire code, is ineligible for the exception.
• Indoor cultivation that exceeds the lesser of 50% of the non -living area/garage area of a
residence or 100 square feet, or that displaces required on-site parking is not eligible for
the exception.
• Where indoor and outdoor cultivation are both occurring at the same residence, only
cultivation that meets all the requirements for eligible indoor and outdoor cultivation and
that does not exceed a total 100 square feet for the indoor and outdoor cultivation areas
combined is eligible for the exception.
• Cultivation must remain at all times a secondary or accessory use to the residential use of
the residence to be eligible for the exception.
It should be noted that the scope of the medical marijuana related activity prohibited in the
attached ordinance is expanded compared to the ordinance previously submitted to the City
Council. In particular, the prohibition of commercial cannabis activity and of delivery in the
City (subject to an exception for delivery from a dispensary outside the City to qualified patients
and caregivers within the City where specified additional requirements are met) are new. The
addition of a prohibition against commercial cannabis activity is intended to permit treating as a
nuisance commercial medical marijuana processing in the City. Such processing, such as
processing extracting hash oil from marijuana, has resulted in property loss in the City and poses
significant risk of personal injury and property damage. (See the information contained in the
relevant recitals in the attached ordinance.) For purposes of harmonizing Petaluma's medical
marijuana ordinance with the MMRA, it is necessary to address commercial cannabis activity in
the City ordinance as it is the definition of commercial cannabis activity in the MMRA that
covers marijuana processing. The definition of cultivation in the MMRA does not cover
processing. The addition of a delivery ban, subject to a specified exception for qualified patients
and primary caregivers, is intended to address health and safety hazards, negative neighborhood
impacts and increased demands on the police department that can result from medical marijuana
delivery occurring during nighttime hours, or consisting of large amounts of marijuana, or
involving medical marijuana delivery by minors.
FISCAL IMPACT
City departments will expend staff time investigating complaints, conducting inspections and
enforcing violations. Recent case law decisions diminish the potential for legal challenges to
local regulations like the ones proposed. The attached ordinance has been purposely drafted to
conform to the authority reserved in the MMRSA for local medical marijuana regulation.
However, the state medical marijuana laws are complex and many are of recent enactment, and
no City program is completely free from risk of litigation. Fines and cost recovery can be sought
for violations of the City ordinance.
7
ATTACHMENTS
1. Ordinance
ATTACHMENT 1
171- to�N 060M
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA
AMENDING CHAPTER 10.15, "MEDICAL MARIJUANA" OF THE CITY OF
PETALUMA MUNICIPAL CODE PROHIBITING DISPENSARIES IN THE CITY TO
ALSO PROHIBIT SPECIFIED COMMERCIAL CANNABIS ACTIVITY,
CULTIVATION AND DELIVERY OF MEDICAL MARIJUANA 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 CUA 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 Sections 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 provides a defense from criminal
prosecution under state law for possession and cultivation of marijuana for qualified patients and
their primary caregivers; establishes a statewide identification program and affords qualified
patients, persons with identification cards and their 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 requires or imposes 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 their boundaries; 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 Ca1.4th 729,
which held that neither the CUA nor the MMP expressly or impliedly preempts the authority of
California cities and counties, under their traditional land use and police powers, to restrict, limit,
or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by
nuisance actions; and
E
WHEREAS, on November 26, 2013, the Third District Court of Appeal issued its
opinion in Mar•al v. City of Live Oak (2013) 221 Cal.App.4th 975, which held that the CUA and
the MMP do not preempt a city's police power to prohibit the cultivation of all marijuana within
that city; and
WHEREAS, during the 2014/2015 legislative session, the Legislature enacted three bills
regulating medical marijuana collectively entitled the "Medical Marijuana Regulation and Safety
Act" ("MMRSA"): AB -243, AB- 266, and SB -643; and
WHEREAS, Health and Safety Code Section 11362.777, which is part of the MMRSA,
provides in subdivision (b) that cultivation of medical marijuana prior to obtaining both a permit
from the city, county or city and county in which the cultivation will occur and a state license is
prohibited, and that if a city, county, or city and county does not have land use regulations or
ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise
under principles of permissive zoning, then commencing March 1, 2016 the state will be the sole
licensing authority for medical marijuana cultivation applicants in that city, county, or city and
county; and
WHEREAS, Health and Safety Code Section 11362.777 provides in subdivision (g) that
that section does not apply to qualified patients cultivating marijuana pursuant to Health and
Safety Code Section 11362.5 in cultivation areas that do not exceed 100 square feet for their
personal medical use and not for sale, distribution, donation, or provision to any other person or
entity, or to primary care givers cultivating marijuana pursuant to Health and Safety Code
Section 11362.5 in cultivation areas that do not exceed 500 square feet exclusively for the
personal medical use of not more than five specified qualified patients for whom they are the
primary caregiver within the meaning of Health and Safety Code Section 11362.7 without
compensation except in full compliance with Health and Safety Code section 11362.765,
subdivision (c); and
WHEREAS, Health and Safety Code Section 11362.777 further provides in subdivision
(g) that the exemptions from the requirements of that section do not prevent a city, county or city
and county from regulating or banning the cultivation, storage, manufacture, transport, provision
or other activity by the exempt person, or impair the enforcement of that regulation or ban; and
10
WHEREAS, Business and Professions Code Section 19340, which is part of the
MMRSA, provides in subdivision (a) that medical marijuana deliveries as defined can only be
made by a dispensary and in a city, county or city and county that does not explicitly prohibit it
by a local ordinance; and
WHEREAS, on December 1, 2015, the Fifth District Court of Appeal issued its opinion
in Kirby v. County of Fresno, (2015), which upheld a county ordinance banning medical
marijuana dispensaries, cultivation and storage, but invalidated the ordinance's classification of
local medical marijuana cultivation as a misdemeanor, holding that section 113662.71 of the
MMP preempts local criminalization of medical marijuana cultivation; and
WHEREAS, although the court in Kirby v. County of Fresno invalidated on preemption
grounds the local criminalization of medical marijuana cultivation as a misdemeanor, the court
noted that local prosecution of the failure to abate a public nuisance involving medical marijuana
cultivation is not preempted, because the Legislature recognizes the failure to abate a public
nuisance after notice as a separate crime; and
WHEREAS, in 2007 the Petaluma City Council adopted Chapter 10.15 of the Petaluma
Municipal Code prohibiting medical marijuana dispensaries in the City to promote the public
health, safety and welfare and protect citizens from impacts associated with medical marijuana
dispensaries, including, but not limited to, increased public consumption of marijuana and the
potential for increased marijuana DUIs, illegal resale of marijuana obtained at low cost from
dispensaries, loitering, fraud in obtaining or use of medical marijuana identification cards,
robbery, assaults and other crimes, and increased demands for police response resulting from
activities at medical marijuana dispensaries reducing the ability of the city's public safety
officers to respond to other calls for service; 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, dispense, or possess with intent to manufacture, distribute or dispense
marijuana for any reason, even though state law decriminalizes under specified state laws
specified use of medical marijuana by specified persons; 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
11
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, Petaluma has experienced structure fires and building damage threatening
the quality and safety of City neighborhoods as a result of indoor marijuana cultivation within
the City, with 7 such incidents occurring between December, 2010 and May, 2015, and a total of
33 structure fires within the Sonoma County area have been attributed to illegal indoor marijuana
cultivation operations; and
WHEREAS, Petaluma has experienced property loss valued at approximately $344,000,
and the Sonoma County area has suffered property loss estimated at approximately $1,693,000
as a result of commercial cannabis activity, due to such causes as substandard wiring and
electrical systems, grow lights, and use of butane to illegally extract hash oil; and
WHEREAS, to protect the public health, safety, and welfare, it is the desire of the City
Council to add to existing provisions in the City of Petaluma Municipal Code prohibiting
medical marijuana dispensaries new provisions prohibiting cultivation, commercial cannabis
activity, and delivery of marijuana within the City, subject to specified exceptions; 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 that law; and
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 construed, 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;
12
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
PETALUMA AS FOLLOWS:
Section 1: Chapter 10.15, Medical Marijuana, of the Petaluma Municipal Code is hereby
amended as follows:
Section 10.15.010, Purpose, is hereby amended to read as follows:
Section 10.15.010 Purpose.
The purpose of this chapter is to promote the public health, safety and welfare by:
A. Protecting citizens from the secondary impacts associated with medical marijuana
dispensaries and commercial cannabis activity, including, but not limited to, increased
public consumption of marijuana and the potential for increased marijuana DUIs, illegal
resale of marijuana obtained at low cost from dispensaries, loitering, fraud in obtaining or
use of medical marijuana identification cards, robbery, assaults, and other crimes.
B. Protecting citizens from secondary impacts associated with commercial cannabis
activity such as medical marijuana cultivation, including, but not limited to, electrical
fires and ignition of chemical substances utilized in the cultivation process, crimes
occurring at grow sites, and neighborhood concerns regarding odors, late night traffic,
and related nuisances.
C. Protecting citizens from secondary impacts of medical marijuana delivery,
including, but not limited to, delivery for recreational use, delivery of quantities of
marijuana exceeding the reasonable requirements of qualified patients and primary
caregivers, delivery during nighttime hours, and delivery by minors.
D. Preventing increased demands for police response resulting from activities at
medical marijuana dispensaries and cultivation sites, commercial cannabis activity and
medical marijuana delivery and thereby avoiding reduction in the ability of the city's
public safety officers to respond to other calls for service.
13
Section 10.15.020 Definitions is hereby amended to read as follows:
"Commercial cannabis activity" means cultivation, possession, manufacture, processing,
storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or
a medical cannabis product, except as set forth in California Business and Professions Code
Section 19319, related to qualifying patients and primary caregivers, in accordance with the
definition in California Business and Professions Code Section 19300.5, subdivision (k), as
that section and subdivision may be amended or interpreted by the California courts or
superseded by any successor statute.
"Cultivation" means any activity involving the planting, growing, harvesting, drying, curing,
grading, or trimming of cannabis, in accordance with the definition in California Business
and Professions Code Section 19300.5, subdivision (1), as that section and subdivision may
be amended or interpreted by the California courts or superseded by any successor statute.
"Delivery" means the commercial transfer of medical cannabis or medical cannabis products
from a dispensary up to an amount determined by the Bureau of Medical Marijuana
Regulation to a primary caregiver or a qualified patient as defined in Section 11362.7 of the
California Health and Safety Code , or a testing laboratory, in accordance with the definition
in California Business and Professions Code section 19300.5, subdivision (m), as that section
and subdivision may be amended or interpreted by the California courts or superseded by any
successor statute.
"Dispensary" means a facility where medical cannabis, medical cannabis products, or
devices for the use of medical cannabis or medical cannabis products are offered, either
individually, or in any combination, for retail sale, including an establishment that delivers,
pursuant to express authorization by local ordinance, medical cannabis and medical cannabis
products as part of a retail sale, in accordance with the definition in California Business and
Professions Code Section 19300.5, subdivision (n), as that section and subdivision may be
amended or interpreted by the California courts or superseded by any successor statute.
Dispensary does not include the following uses, so long as the location of such uses is
14
otherwise regulated by and strictly complies with this code and other applicable law,
including California Health and Safety Code Sections 11362.5 and 11362.7, et seq, as such
sections may be amended from time to time:
A. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.
B. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and
Safety Code.
C. A residential care facility for persons with chronic life-threatening illness licensed
pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.
D. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of
the Health and Safety Code.
E. The delivery, administration or provision of medical marijuana by a designated primary
caregiver to the qualified patient of the primary caregiver or to the person with an
identification card who has designated the individual as a primary caregiver at the
primary residence of the qualified patient or person with an identification card who has
designated the individual as a primary caregiver.
"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.
"Mature plant" means a plant that has flowers, or is more than 12 inches wide, or more than
12 inches tall.
"Primary caregiver" shall have the same definition as set forth in California Health and
Safety Code Section 11362.7, as it may be amended or superseded by any successor statute,
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 or superseded by any successor statute,
15
and as interpreted by the California courts.
"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 amended to
read as follows:
10.15.030 Prohibition of Medical Marijuana Dispensaries and Commercial
Cannabis Activity
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 the City of Petaluma, the operation of a
dispensary or commercial cannabis activity except as otherwise expressly provided in this
chapter.
Section 10.15.040, Establishment or maintenance of medical marijuana dispensaries
declared a public nuisance, is hereby repealed in its entirety and replaced with:
10.15.040 Prohibition of Medical Marijuana Cultivation
It shall be unlawful for any person to engage in, conduct or calTy on, or to permit to be
engaged in, conducted or carried on, in the City of Petaluma, the cultivation of marijuana
other than:
1. Indoor cultivation that is solely for the personal use of one qualified
patient and that at all times remains an accessory use to the primary residence of either
the qualified patient or his or her primary caregiver; where the cultivation area does not
exceed 50% or 100 square feet of the non -living or garage area of the residence, or a
lesser amount in accordance with paragraph 2 of this section, whichever is less; that does
not displace any required on-site parking; that is within a fully -enclosed and secure
sti acture with no visual or olfactory evidence of cultivation detectable from the public
right of way or other private property; that does not utilize lighting that exceeds 1,200
16
watts; that does not require the use of an electric generator; and that does not use gas
products (CO2, butane, etc.); and
2. Outdoor cultivation that is solely for the personal use of one qualified
patient that at all times remains an accessory use to the primary residence of either the
qualified patient or his or her primary caregiver; where the cultivation area does not
exceed 100 square feet, or a lesser amount so that the total cultivation area pursuant to
this section including indoor and outdoor cultivation at the residence does not exceed a
combined total of 100 square feet; that does not exceed three (3) mature plants, with no
visual or olfactory evidence of cultivation detectable from the public right of way or other
private property; that does not utilize lighting that exceeds 1,200 watts; that does not
require the use of an electric generator; and that does not use gas products (CO2, butane,
etc.).
Section 10.15.050, Prohibition of Medical Marijuana Delivery, is hereby added to read
as follows:
10.15.050 Prohibition of Medical Marijuana Delivery
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 the City of Petaluma, the delivery of medical
marijuana, except for delivery of medical marijuana:
From a dispensary outside the city that is operating in accordance with applicable
state and local law to a qualified patient or primary caregiver within the city in
accordance with the requirements of Health and Safety Code Section 19340, any
successor statute, and any regulations promulgated under California Health and Safety
Code Section 19340 or any successor statute, where:
1. Persons delivering medical marijuana in the city possess no more than 1 pound of
medical marijuana at any time while making medical marijuana deliveries in the city; and
2. The delivery is carried out by a person at least 18 years of age; and
3. The delivery occurs between the hours of 8:00 a.m. and 8:00 p.m.
17
Section 10.15.060, Prohibition of Medical Marijuana Entitlements is hereby added to
read as follows:
Section 10.15.060, Prohibition of Medical Marijuana Entitlements
No medical marijuana dispensary, commercial cannabis activity, medical marijuana
cultivation operation, or medical marijuana delivery operation, however described by the
applicant, will eligible for or be issued any entitlement, license or permit to operate in the
city, or have any such entitlement renewed, including, but not limited to, any business
license or home occupation permit, and any such application shall be denied citing this
section.
Section 10.15.0700, Public Nuisance, is hereby added to read as follows:
Section 10.15.070 Public Nuisance. Any medical marijuana dispensary, commercial
cannabis activity, cultivation, delivery or other use or activity caused or permitted to exist
in the city in violation of any provision 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 2: The City Council finds that adoption of this ordinance is exempt from the
California Environmental Quality Act ("CEQA"), pursuant to Section 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 3: 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
18
unconstitutional, unlawful or otherwise invalid.
Section 4: 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
ADOPTED this day of 2016 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Claire Cooper, City Clerk
day of , 2016.
David Glass, Mayor
APPROVED AS TO FORM:
Eric Danly, City Attorney
19