HomeMy WebLinkAboutStaff Report 1.A 06/26/2017ffel
9005
Agenda Item #1.A
Honorable Mayor and Members of the City Council through City Manager
Ken Savano, Police Chief
Eric Danly, City Attorney
SUBJECT: Workshop to Discuss Current Federal, State, and Local Marijuana Regulations
and Petaluma Neighborhood Preservation and Enforcement Issues Since Adoption
in January, 2016 of the Current Petaluma Medical Marijuana Regulations in
Chapter 10.15 of the City of Petaluma Municipal Code and to Receive Council
Direction Regarding Potential Amendments to Petaluma's Marijuana Regulations
RECOMMENDATION
It is recommended that the City Council discuss the agenda materials and staff presentation
regarding current Federal, State and local marijuana regulations and Petaluma neighborhood
preservation and enforcement issues since adoption in January, 2016 of the current Petaluma
medical marijuana regulations in Chapter 10.15 of the Petaluma Municipal Code. As part of the
Council's deliberation on current marijuana regulations, staff recommends that the Council
consider and provide staff direction on potential amendments to Petaluma's existing medical
marijuana regulations to make them applicable also to non - medical marijuana, in accordance
with the following analysis and recommendations.
BACKGROUND
Introduction
On January 26, 2016, the Petaluma City Council adopted the current ordinance found in Chapter
10.15 of the Petaluma Municipal Code regulating medical marijuana in the City. In November
2016, Proposition 64, the "Adult Use of Marijuana Act" was approved by California voters.
Chapter 10.15 of the Petaluma Municipal Code does not address a variety of community and
public safety issues related to the passage of Proposition 64. This workshop is intended to assist
the City Council in considering legal developments related to marijuana through and including
passage of Proposition 64, community and public safety issues in the context of Proposition 64
and marijuana law generally, and policy and regulatory options available to California cities.
The workshop materials include staff recommendations for possible amendments to the City's
medical marijuana regulations intended to ensure public safety and neighborhood preservation in
Petaluma. Following is a summary of the history of federal, state and local marijuana legislation
and case law, as background for a discussion of current marijuana issues in Petaluma.
History of Marijuana Law
Controlled Substances Act
In 1970, Congress enacted the Controlled Substances 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.1
Compassionate Use Act
In 1996, California voters approved Proposition 215 entitled "The Compassionate Use Act of
1996" ( "CUA "), which creates a limited exception from criminal liability under state law 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.2 The CUA
expressly anticipated 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. "3
Medical Marijuana Program
On January 1, 2004, the Legislature adopted Senate Bill 420, known as the Medical Marijuana
Program ( "MMP ").4 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.5 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. "6 Qualified patients and
primary caregivers for qualified patients have immunity from state criminal liability for
possession of marijuana.
Petaluma Municipal Code Chapter 10.15
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 intended 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.
121 U.S.C. 801 et seq.
2 Health and Safety Code §11362.5, et seq.
3 Health and Safety Code §11362.5(b)(2).
4 Health and Safety Code § §11362.7 - 11362.83.
5 Health and Safety Code §11362.7(1); see also §11362.5(b)(1)(a).
6 Health and Safety Code §11362.7(d); see also §11362.5(e).
7 Health and Safety Code, §11362.7(e).
N
Medical Marijuana Case Law
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, 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.8 In the same year, following the Riverside case, the Third District Court of
Appeal held in Maral that cities have the authority to ban marijuana cultivation within their
boundaries.9 At the time of the City of Riverside and Maral rulings, it was well settled that
California cities had the authority to ban both marijuana dispensaries and cultivation.
Subsequently, on December 1, 2015, the Fifth District Court of Appeal issued its opinion in
Kirby, 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. 10 The court held that Section 11362.71 of the MMP preempts local
criminalization of medical marijuana cultivation. Although the court in Kirby invalidated the
local criminalization of medical marijuana cultivation, the court noted that local prosecution of
medical marijuana cultivation public nuisances is not preempted, because the Legislature
recognizes the failure to abate a public nuisance after notice as a separate crime.
Medical Marijuana Regulation and Safety Act
Three bills, AB 243, AB 266, and SB 643, collectively entitled the "Medical Marijuana
Regulation and Safety Act" ( "MMRSA ") were signed by the Governor October 9, 2015.11 The
three bills were triple joined and signed as a package. The legislation created 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 MMRSA 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, generally prohibits
cultivating medical marijuana without first obtainin� both a permit from the local jurisdiction in
which the cultivation will occur, and a state license. 2 Under this bill as originally proposed, if a
local jurisdiction did not have land use regulations or ordinances regulating marijuana cultivation
in effect by March 1, 2016, the state would become the sole licensing authority for medical
marijuana cultivation in that jurisdiction. The bill's author ultimately introduced urgency
legislation that deleted the deadline.
Section 11362.777(g) of the MMRSA created an exception from state licensing requirements for
qualified patients cultivating marijuana in cultivation areas that do not exceed 100 square feet for
8 City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., (2013) 56 CalAth 729.
9 Maral v. City of Live Oak, (2013) 221 Cal.App.4th 975.
10 Kirby v. County of Fresno, (2015) 242 Cal.App.41h 940.
11 Business and Professions Code §§ 144, 205.1, 2220.05 et seq., 19300 et seq., Fish and Game Code § 11362.769 et
seq., Government Code §9147.7, Health and Safety Code § 11362.775 et seq., Labor Code § 147.5, Revenue and
Taxation Code §31020, Water Code § 13276 et seq.
12 Health and Safety Code §11362.777(b)
the patient's 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. 13 This exception in the MMRSA was important for local
jurisdictions like Petaluma that considered banning medical marijuana cultivation, subject to an
exception for qualified patients and primary caregivers, because it excused eligible qualified
patients and primary caregivers fiom obtaining state cultivation licenses, which they would be
unable to obtain without a local permit.
Without the exception in Section 11362.777(g), Petaluma would have been required to issue
local permits for qualified patients and primary care givers to permit them to cultivate medical
marijuana without violating state law. The exemption in Section 11362.777(g) expressly
reserved local jurisdictions' authority to regulate or ban the cultivation, storage, manufacture,
transport, provision or other activity by exempt persons, and to enforce such regulations or
bans. 14 In other words, the MMRSA expressly permitted local agencies like Petaluma to ban
local cultivation of medical marijuana altogether, regardless of the exception for qualified
patients and primary caregivers.
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, expressly did not 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.15 AB 266 provided 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. 16 Together, these MMRSA provisions
recognized 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, provided that qualified patients and primary caregivers as defined are exempt from the
licensing requirements under that chapter. 17 These statutes provided a legal basis for local
agencies, if they wished, to ban commercial cannabis activity and marijuana delivery.
Amendments to Chapter 10.15 of the Petaluma Municipal Code
On September 28, 2015, the City Council conducted a workshop to consider the issue of local
regulation of medical marijuana cultivation and a draft ordinance that would amend the City's
existing medical marijuana regulations to include requirements regarding medical marijuana
cultivation. Interested parties, including medical marijuana and patient advocates and patients
attended the meeting. The Council did not introduce the draft ordinance and directed to staff to
conduct stakeholder meetings.
13 Health and Safety Code § 11362.777(g).
14 Health and Safety Code § 11362.777(g).
15 Business and Professions Code § 19315 (a).
16 Business and Professions Code § 19340(a).
17 Health and Safety Code § 19319(a).
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In accordance with direction of the City Council, 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 medical marijuana patients. They
expressed interest in working with the City to develop local regulations: The dialogue was
productive and the stakeholders appreciated the work by staff to address nuisance issues while
respecting patient rights. Following the stakeholder meetings staff presented and discussed the
stakeholder recommendations in the staff report prepared for City Council consideration. The
stakeholder recommendations included the following:
• that the City of Petaluma adopt the same local regulations adopted by the County of
Sonoma;
• removal of the restriction limiting indoor cultivation areas that are not locally prohibited
to 50% of the non - living or garage area of a residence; and
• establishment of a permit process to create local tax revenue benefits.
At the time, the use of Petaluma homes for illegal cultivation of marijuana for commercial sale
was increasing, as indicated by the following:
• at the more than 30 community town hall meetings held beginning in 2013, marijuana
cultivation in neighborhoods remained one of the top five neighborhood complaints of
City residents;
• complaints from property owners who rented their homes and subsequently discovered
that renters converted the homes to indoor marijuana grows;
• a significant increase in home invasion robberies, with such attacks frequently involving
guns and violence; and
• an increase in the number of complaints from residents about indoor or outdoor
marijuana grows.
Of concern to Police Department staff at the time was the potential for using the medical
marijuana laws to skirt the law and grow marijuana illegally for commercial sale. The Police
Department was aware of people obtaining Proposition 215 cards from multiple medical
marijuana patients and using the cards to grow additional marijuana for commercial sale. The
unclear distinction between medical and illegal commercial cultivation and the lack of local
regulations governing medical marijuana cultivation created difficulties for'law enforcement and
the community by:
• enabling large indoor cultivation areas in homes;
• increasing building and. fire code violations exposing residents and neighbors to potential
hazards and endangering first responders;
• exposing residents to health hazards from mold and water damage;
• creating increased nuisance conditions in neighborhoods; and
• increasing other illegal activities such as the frequency of home invasion robberies, and
gun use, undermining neighborly communities.
On November 16, 2015, the City Council considered for introduction, a draft ordinance prepared
in response to the Council's September guidance to staff and stakeholder input. The draft
ordinance 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. The 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 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 supported
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. At the time, the March 1, 2016 deadline included in AB -243
was also discussed, with the Council directing that any amendments to Chapter 10.15 of the
Petaluma Municipal Code should be completed so that the ordinance would become effective
prior to March 1, 2016.
On January 4, 2016, staff presented the City Council a revised ordinance to amend Chapter 10.15
consistent with the Council's November, 2015 direction. The City Council introduced the
ordinance. Ordinance 2563 - N.C.S. was adopted January 25, 2016 and took effect February 25,
2016. The Ordinance incorporated the following amendments into the medical marijuana
regulations in Chapter 10.15 of the Petaluma Municipal Code:
• an updated purpose section addressing the intent to expand Chapter 10.15 to regulate
medical marijuana cultivation, commercial cannabis activity, and delivery;
• a replacement definitions section adding definitions required by the expanded chapter and
updating definitions to conform to the MMRSA;
• an updated dispensary prohibition that also prohibits commercial cannabis activity,
subject to exceptions specified in the chapter;
• a prohibition against marijuana cultivation, subject to specified exceptions for qualified
patients and primary caregivers;
• a prohibition against medical marijuana delivery, subject to specified exceptions for
qualified patients and primary caregivers;
• a revised prohibition against the granting of medical marijuana entitlements in the City,
consistent with the expanded purposes of the chapter; and
• a revised enforcement provision establishing that all activity prohibited under the chapter
is a public nuisance.
Ordinance 2563 — N.C.S required qualified patients and primary caregivers to satisfy the
following to qualify for the cultivation exception:
• They must be qualified patients or primary caregivers as defined by law.
• Either a qualified patient or primary caregiver must reside full -time at the residence
where the medical marijuana cultivation occurs.
• Cultivation of medical marijuana in any agricultural, commercial, office, industrial, open
space, special purpose, or overlay /combining zoning districts could not qualify.
• Cultivation using grow lights that exceed one thousand two hundred (1,200) watts or
generators or gas products could not qualify.
• Only outdoor cultivation consisting of 3 or fewer mature plants qualified.
• Cultivation that can be seen or smelled from the public right of way or private property
could not qualify.
R
• Cultivation inside of residences that are not in full compliance with the City's Municipal
Code, including its building code and fire code, could not qualify.
• 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 could not qualify.
• 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 could qualify.
• Cultivation must remain at all times a secondary or accessory use to the residential use of
the residence to qualify.
The prohibition in Ordinance 2563 N.C.S. against commercial cannabis activity was intended to
treat commercial medical marijuana processing in the City as a nuisance. Such processing,
including extracting hash oil from marijuana, has resulted in property loss in the City and poses
significant risk of personal injury and property damage. To harmonize Petaluma's medical
marijuana regulations with the MMRA, it was necessary to address commercial cannabis activity
because the MMRSA covers marijuana processing under its definition of commercial cannabis
activity. 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, was
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.
By adopting a cultivation ban that included an exception for qualified patients and primary
caregivers, Ordinance 2563- N.C.S. had the effect of banning all marijuana cultivation in the
City, except that of qualified patients and primary caregivers in accordance with the ordinance
requirements. As a result, eligible patients and primary caregivers could avoid violating local
and state cultivation regulations. Similarly, Ordinance 2563- N.C.S.included an exception to its
medical marijuana delivery ban for delivery to qualified patients and primary caregivers
consistent with the ordinance. By adopting commercial cannabis and delivery bans that
contained exceptions for qualified patients and primary caregivers, Ordinance 2563- N.C.S.
provided a means for qualified patients and primary caregivers to avoid violating local and state
commercial cannabis and delivery regulations. Ordinance 2563.N.C.S. was also drafted to be
consistent with the holding in Kirby by defining violations of the chapter to be public
nuisances. 18
Throughout the City's medical marijuana regulatory process, City staff has advised against
issuing medical marijuana permits, because marijuana remains illegal under federal law, and City
authorization of marijuana activity could be a basis of liability for the City and its officials under
the CSA.19 So far the City Council has not supported issuance of local medical marijuana
permits.
In 2011, in a case before the Second District Court of appeal, the court considered whether the
City of Long Beach permitting regulations for medical marijuana collectives was preempted by
18 Kirby v. County of Fresno, (2015) 242 Ca1.App.4' 940.
19 U.S. v. Oakland Cannabis Buyers Coop (2001) 532 U.S. 483.
VA
the CSA .20 The court concluded that the Long Beach regulations were preempted, and
considered in dicta whether the city's. regulations required city officials to violate federal law by
aiding or abetting GSA violations. The court noted that the U.S. Attorneys for the Eastern and
Western Districts of Washington took the position that state employees who conducted activities
mandated by Washington proposals for licensing marijuana growers and dispensaries would not
be immune from CSA liability. The court further observed that even though a California court
held that law enforcement officials who return confiscated medical marijuana do not thereby
violate the CSA, the court was uncertain whether "the federal courts would take such a narrow
view. "21 The Long Beach case was superseded by grant of review, but in October, 2011, the
U.S. Attorneys for California also sent letters to local governments indicating that city
employees who conduct activities mandated by local marijuana ordinances were not immune
from CSA liability. The Department of Justice updated its position in 2013. However, the issue
of potential local agency and local agency official liability under the CSA related to local
marijuana permits is not a settled question.
Proposition 64 — The Adult Use of Marijuana Act
California voters approved the Control, Regulate and Tax Adult Use of Marijuana Act, referred
to as the Adult Use of Marijuana Act ( "AUMA "), in November, 2016.22 The act took effect the
day after the election on November 9, 2016. The AUMA decriminalized for state law purposes
specified personal use and cultivation of nonmedical marijuana, and established a state
regulatory and licensing program for nonmedical marijuana commercial cultivation, testing,
distribution and manufacturing. The AUMA regulatory scheme established for nonmedical
marijuana is largely similar to that established for medical marijuana under the MMRSA, with
some differences. The AUMA preserved intact regarding nonmedical marijuana much of the
authority of local agencies to regulate or ban medical marijuana pursuant to the CUA, MMP, and
the MMRSA. However, the AUMA bars local agencies from prohibiting specified personal use
and cultivation of nonmedical marijuana. More particularly, the AUMA provides that it is not a
violation of state or local law for persons 21 years old or older to:
• possess, process, transport, purchase, obtain, or give away to persons 21 years old or
older without any compensation whatsoever not more than 28.5 grams of marijuana not
in the form of concentrated cannabis or not more than 8 grams of concentrated cannabis,
including as contained in marijuana products; 23
• possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants
and possess the marijuana produced by the plants; 24
• smoke, or ingest marijuana or marijuana products; or t025
• possess, transport, purchase, obtain, use, manufacture, or give away marijuana
accessories to persons 21 years of age or older without any compensation whatsoever.
26
20 Pack v. Superior Court (2011) 199 Cal.App.4h 1070, review granted and opinion superseded by Pack v. Superior
Court (2012) 136 Ca1.Rptr. 3d 665.
21 Pack v. Superior Court (2011) 199 Ca1.App.4 h 1070, review granted and opinion superseded by Pack v. Superior
Court (2012) 136 Cal.Rptr. 3d 665, citing City of Garden Grove v. Superior Court (2007) 157 Cal.App.4tli 355.
22 Health and Safety Code § 11018 et seq., Business and Professions Code §26000 et seq., Revenue and Taxation
Code §34010 et seq., Food and Agricultural Code §81000 et seq.
23 Health and Safety Code § 11362. l(a)(1),(2).
24 Health and Safety Code §11362.1(a)(3).
25 Health and Safety Code §11362,1(a)(4).
8
Under the AUMA, permitted personal cultivation:
must be in accordance with reasonable local regulatory ordinances; 27
must ensure that living plants and any marijuana they produce in excess of 28.5 grams are
kept within the person's private residence or upon the grounds of the residence in a
locked space not visible by normal unaided vision from a public place; 28
cannot exceed six living plants cultivated, harvested, dried or processed within a single
private residence, including a house, apartment unit, mobile home, or other similar
dwelling, or upon the residence grounds at one time. 29
Although the AUMA permits local agencies to impose reasonable regulations on personal,
nonmedical marijuana cultivation, harvesting, drying, and processing, such regulations may not
take the form of a complete prohibition, as long as the permitted activities occur inside a private
residence or an accessory structure to a private residence that is fully enclosed and secure. 30
Also, local jurisdictions cannot prevent those that are licensed under the AUMA from
transporting marijuana or marijuana products on public roads. 31 The AUMA authorizes local
agencies to completely prohibit outdoor cultivation of nonmedical cannabis on the grounds of
private residences. 32 If the California Attorney General determines that use of nonmedical
marijuana in California is lawful under federal law, local prohibitions of outdoor cultivation of
nonmedical marijuana on private residence grounds are deemed repealed.33 The AUMA also
permits public and private employers to maintain drug and alcohol free workplaces and to
prohibit marijuana use by employees and prospective employees. 34 Under the AUMA local
agencies may also prohibit or restrict possession, processing, transportation, purchasing,
obtaining, giving away, planting, cultivating, harvesting, drying, processing, smoking, ingesting,
or manufacturing marijuana or marijuana products in buildings owned, leased or occupied by the
local agency.35
The nonmedical marijuana uses legalized for state law purposes under the AUMA do not
include:
smoking or ingesting marijuana or marijuana products in public places except specified
licensed retail establishments ;36
smoking marijuana or marijuana products in a location where smoking tobacco is
prohibited; 37
26 Health and Safety Code §11362.1(a)(5).
27 Health and Safety Code §11362.2(a)(1).
28 Health and Safety Code §11362.2(a)(2).
29 Health and Safety Code § 11362.2(a)(3).
30 Health and Safety Code § 11362.2(b)(2).
31 Business and Professions Code §26080(b).
32 Health and Safety Code §11362.2(b)(3).
33 Health and Safety Code §11362.2(b)(4).
34 Health and Safety Code §11362.45(f).
35 Health and Safety Code §11362.45(g).
36 Health and Safety Code §11362.3(a)(1).
37 Health and Safety Code §11362.3(a)(2).
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• smoking marijuana or marijuana products within 1000 feet of a school, day care center,
or youth center while children are present, except in or upon the grounds of a private
residence or in specified retail establishments, but only if the smoking is not detectable
by others on the grounds of the school, day care center or youth center while children are
present; 38
• possessing an open container of marijuana or marijuana products while driving, operating
or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft or
other vehicle used for transportation; 39
• possessing, smoking or ingesting marijuana or marijuana products in or upon the grounds
of a school, day care center or youth center while children are present;40
• manufacturing concentrated cannabis using a volatile solvent, unless under license;
41
• smoking or ingesting marijuana or marijuana products while driving, or operating a
motor vehicle, boat, vessel, aircraft or other vehicle used for transportation;42 or
• smoking or ingesting marijuana or marijuana products while riding in the passenger seat
or compartment of a motor vehicle, boat, vessel, aircraft or other vehicle used for
transportation except as permitted on a motor vehicle, boat, vessel, aircraft or other
vehicle used for transportation that is operated as part of a licensed retail establishment
while no persons under 21 years of age are present. 43
The AUMA permits local agencies to regulate and completely prohibit nonmedical marijuana
businesses that would be subject to state license under the AUMA.44 The state cannot approve
applications for nonmedical marijuana commercial licenses if doing so would violate any lawful
local ordinance or regulation governing nonmedical marijuana businesses. 45 Applicants for state
nonmedical marijuana business licenses need not provide documentation they have obtained an
authorization to operate from the local jurisdiction in which the business plans to operate. 46
The AUMA also establishes a marijuana taxation scheme. Effective January 1, 2018, marijuana
retail sales are subject to a state excise tax of 15% of gross receipts in addition to existing state
and local sales tax. 47 In Petaluma, the total tax rate on retail nonmedical marijuana sales will be
23.125% of gross receipts. Also effective January 1, 2018, the AUMA imposes a cultivation tax
on harvested nonmedical marijuana at the rate of $9.25 per dry- weight ounce on all marijuana
flowers, and $2.75 per dry- weight ounce on all marijuana leaves. 48 After reimbursing state
agency regulatory costs, and funding grants for university research and the Governor's Office of
Business and Economic Development, the AUMA allocates proceeds from the state marijuana
taxes as follows: 60% for youth programs, substance abuse education, prevention and treatment;
20% for environmental cleanup and remediation; and 20% for state and local programs to reduce
driving while intoxicated and local government grants for law enforcement, fire protection and
38 Health and Safety Code §11362.3(a)(3).
39 Health and Safety Code §11362.3(a)(4).
40 Health and Safety Code §11362.3(a)(5).
41 Health and Safety Code §11362.3(a)(6).
42 Health and Safety Code §11362.3(a)(7).
43 Health and Safety Code §11362.3(a)(8).
44 Business and Professions Code §26200(a).
45 Business and Professions Code §26055(e).
46 Business and Professions Code §26056(a).
47 Revenue and Taxation Code §34011.
4' Revenue and Taxation Code §34012.
[[I]
other pro rams addressing public health and safety associated with implementation of the
AUMA.4 Local governments that ban nonmedical marijuana cultivation, retail sales or products
are ineligible for grants. 50 The AUMA exempts from taxation medical marijuana sales and
cultivation for personal use and by qualified patients and primary caregivers in accordance with
the CUA.51 The AUMA permits imposition of local taxes on nonmedical marijuana. 52 Local
taxation of nonmedical marijuana would apply in addition to the state marijuana excise tax under
the AUMA and existing local sales tax. 53 In other words, an additional local tax rate applicable
to nonmedical marijuana sales in Petaluma would be on top of the 23.125% rate.
DISCUSSION
The issue of marijuana cultivation in Petaluma continues to result in frequent reports to the
Police and Planning Departments, in requests for permits for commercial cultivation; in interest
in cultivation for personal or 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. Since the enactment of the January 2016 amendments to Chapter 10.15, the Police
Department has responded to and successfully resolved more than 29 residential marijuana
cultivation complaints. There were 13 indoor cultivation complaints and 16 outdoor cultivation
complaints. As a result of the Chapter 10.15 regulations, the Police Department was able to
successfully abate all 29 nuisances reported in residential neighborhoods. Of the reported cases,
Code Enforcement issued 6 "Notices to Correct," 4 "Notices of Violation," 12 violators
voluntarily corrected the problem, and 7 were addressed through criminal prosecution. At the
present time, there are no outstanding marijuana cultivation complaints. None of the abatements
required significant commitment of City Attorney's Office resources or outside legal fees.
The City Council direction during the September 23, 2015 workshop recognized the need of a
segment of the community for medicinal marijuana, as well as the importance of ensuring the
health and safety of the entire community. However, since the passage of Proposition 64, the
regulatory tools that the Police Department has used to successfully abate marijuana nuisances in
Petaluma neighborhoods are rendered ineffective.
The existing Chapter 10.15 regulations allow the City to exercise 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. The limited exceptions for qualified patients and primary caregivers in the existing
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.
49 Revenue and Taxation Code §34019.
so Revenue and Taxation Code §34019(fl(3)(c).
si Revenue and Taxation Code §34011(g), §340120).
12 Revenue and Taxation Code §34021.
" Revenue and Taxation Code §34021.
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The City's existing medical marijuana regulations created exceptions to local bans on medical
marijuana activity, as opposed to establishing a permit scheme, to avoid any potential for City or
City official liability under the CSA, as discussed earlier in this report. Accordingly, Chapter
10.15 provides for limited circumstances under which the City will not enforce its prohibition on
medical marijuana cultivation and other medical marijuana related activity without expressly
authorizing any medical marijuana related activity. This avoids involving the City and City
officials in activity that purports to authorize violations of federal law, while accommodating
access for patients.
The January, 2016 amendments to Chapter 10.15 addressed 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 existing
regulations 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 and these considerations were addressed as well.
The passage of Proposition 64 creates the challenge as well as the opportunity to address
nonmedical marijuana regulation to maintain public safety and the quality of life in Petaluma.
Before the 2016 updates to Chapter 10. 15, the Police Department lacked the enforcement tools to
address marijuana cultivation in residential neighborhoods. The 2016 amendments provided the
necessary enforcement means needed to abate medical marijuana cultivation. Now that
Proposition 64 has decriminalized nonmedical marijuana cultivation and other related activities
for purposes of state law, staff recommends amending Chapter 10.15 again to apply the same
regulations that have been imposed on medical marijuana in the City to nonmedical marijuana,
for the same reasons the Council authorized the 2016 amendments. However, some additional
changes are needed to comply with key provisions in Proposition 64. For example, staff
recommends replacing square footage limits on medical marijuana cultivation under Chapter
10.15 with a limit of 6 plants per residence. In addition, Staff recommends that the Council
consider directing staff to prepare amendments to Chapter 10.15 of the Petaluma Municipal Code
that would establish regarding nonmedical marijuana the following, consistent with the current
regulations governing medical marijuana:
• an updated purpose section addressing the intent to expand Chapter 10.15 to regulate
nonmedical marijuana in addition to medical marijuana dispensaries, cultivation,
commercial cannabis activity, and delivery;
• a replacement definitions section adding definitions required by the expanded chapter and
updating definitions to conform to definitions in the AUMA;
• a prohibition against nonmedical marijuana cultivation, subject to an exception for 6
plants and the marijuana they produce in accordance with the AUMA;
• a prohibition against nonmedical marijuana delivery, subject to specified requirements of
the AUMA;
• a prohibition against the granting of nonmedical marijuana entitlements in the City,
consistent with the expanded purposes of the chapter; and
12
a revised enforcement provision establishing that all activity prohibited under the
expanded chapter is a public nuisance.
In keeping with the provisions of existing Chapter 10. 15, staff recommends that the following
requirements also be applied to nonmedical marijuana:
• No cultivation of nonmedical marijuana in any agricultural, commercial, office, .
industrial, open space, special purpose, or overlay /combining zoning districts.
• Cultivation may not use grow lights that exceed one thousand two hundred (1,200) watts
or generators or gas products.
• Only cultivation totaling no more than 6 plants (including indoor and outdoor cultivation)
per residence is exempt.
• Cultivation that can be seen or smelled from the public right of way or private property is
not exempt.
• Cultivation inside of residences that are not in full compliance with the City's Municipal
Code, including its building code and fire code, is not exempt.
• Subject to the AUMA exception for 6 plants, 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 exempt.
• Cultivation must remain at all times a secondary or accessory use to the residential use of
the residence to be exempt.
Staff believes that the recommended amendments to Chapter 10.15 of the Petaluma Municipal
Code to make the requirements of that chapter applicable to nonmedical marijuana can preserve
patients' access to medical marijuana, and preserve the City's existing regulatory tools for
preventing nuisances and maintaining quality of life in Petaluma neighborhoods, while at the
same time complying with changes to state marijuana law pursuant to Proposition 64, the Adult
Use of Marijuana Act.
FISCAL IMPACT
The Police Department would continue to enforce violations of Petaluma Municipal Code
Chapter 10.15 with existing resources. If other City Council policy direction is given, associated
financial impacts would be evaluated and included in future staff recommendations and agenda
materials.
ATTACHMENTS
1. Existing Chapter 10.15 of the Petaluma Municipal Code
2. League of California Cities' Frequently Asked Questions Regarding Proposition 64
3. League of California Cities' AUMA Memo
13
Attachment 1
Home F . _ 1> _ ._
CHAPTER 10.15
MEDICAL MARIJUANA
10.15.01,0 Purpose.:.:....:::: SHARE::........`J
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 DUls, 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.
(Ord. 2563 NCS §1 (part), 2016: Ord. 2269 NCS §2 (part), 2007.)
10.15.020 Definitions.11 SHARE
"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 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.
Y r. •6 /�
"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 twelve inches wide, or more than twelve 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, 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. (Ord. 2563 NCS §1 (part), 2016: Ord.
2269 NCS §2 (part), 2007.)
10.15.030 Prohibition of medical marijuana dispensaries and commercial cannabis
aCtl Vl t.... .............HRRE ..............
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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. (Ord. 2563 NCS §1 (part), 2016: Ord. 2269 NCS §2 (part), 2007.)
10.15.040 Prohibition of medical marijuana cultivation,,.... SHARE .:.:......:.:y
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 cultivation of marijuana other than:
A. 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 fifty percent or one hundred square feet of the nonliving or garage area of the
residence, or a lesser amount in accordance with subsection B of this section, whichever is less; that does not
3
as
displace any required on -site parking; that is within a fully enclosed and secure structure 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 one thousand two hundred watts; that does not require the use of an electric
generator; and that does not use gas products (CO2, butane, etc.); and
B. 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 one hundred 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 one hundred square feet; that does not exceed three 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 one thousand two hundred watts; that does not require the use of an electric generator; and that does
not use gas products (CO, butane, etc.).
(Ord. 2563 NCS §1 (part), 2016.)
10.15.050 Prohibition of medical marijuana deliverv.0 SHARE J
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:
A. Persons delivering medical marijuana in the city possess no more than one pound of medical marijuana at
any time while making medical marijuana deliveries in the city; and
B. The delivery is carried out by a person at least eighteen years of age; and
C. The delivery occurs between the hours of eight a.m. and eight p.m.
(Ord. 2563 NCS §1 (part), 2016.)
4
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10.15.060 Prohibition of medical marijuana entitlements.1 SHARE
'
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. (Ord. 2563 NCS §1 (part), 2016.)
10.15.070 Public nuisance.; 8HflRE
............................. ...... ...................................................................... ..............................................................................................................................................................................................................................
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. (Ord. 2563 NCS §1 (part), 2016.)
l kom'e s
NN,
a�.,
Attachment 2
January 9, 2017
I �,_ L LEAGUE°
OF CALIFORNIA
CITIES
Frequently Asked Questions (FAQs)
Adult Use of Marijuana Acti
Proposition 64
Question #1: When does the AUMA take effect?
Answer: The AUMA took effect November 9, 2016, the day after the election. But note,
the AUMA requires a state license to engage in commercial nonmedical marijuana
activity. Licensing authorities are required to begin issuing licenses by January 1, 2018
and the League anticipates that the issuance of licenses will not occur much in advance of
January 1, 2018. Thus, the AUMA provisions legalizing commercial nonmedical
marijuana activity will not become operational until the state begins issuing licenses
(likely in late - 2017). The AUMA provisions legalizing personal use and cultivation of
nonmedical marijuana took effect November 9, 2016.
Question #2: Can private individuals cultivate nonmedical marijuana at home beginning
November 9, 2016?
Answer: Yes, within a private residence by a person 21 years and older for personal use.
The AUMA provides that local governments can reasonably regulate, but cannot ban the
personal indoor cultivation of up to six nonmedical marijuana plants per private
residence. This includes cultivation in a greenhouse that is on the property of the
residence but not physically part of the home, as long as it is fully enclosed, secure, and
not visible from a public space. Because this activity is not subject to state licensing
requirements, individuals may engage in personal indoor cultivation beginning November
9, 2016, unless a city enacts an ordinance imposing a reasonable regulatory scheme that
would preclude them from doing so before complying with the city's regulatory
requirements.
Local governments may regulate or ban all personal outdoor cultivation. However, the
AUMA includes language purporting to repeal any ordinance that bans personal outdoor
'Please consult your City Attorney before taking action to implement the AUMA. The answers to these FAQs may
be different in your city based upon your municipal code, regulations, and policies. The answers do not constitute
legal advice from the League of California Cities'.
cultivation upon the California Attorney General's determination that nonmedical use of
marijuana is lawful under federal law.
Question #3: Is there a limitation on the number of marijuana plants that can be cultivated
within a single residence?
Answer: Yes. Not more than six living plants may be planted, cultivated, harvested,
dried, or processed within a single private residence, or upon the grounds of that private
residence, at one time. A "residence" is defined as a house, an apartment unit, a mobile
home, or other similar dwelling. No matter how many persons over 21 years of age are
living in a "residence," only 6 living plants may be cultivated at one time. (Health &
Safety § 11362.2(b)(3).)
Question #4: Can a landlord ban the cultivation/smoking of marijuana on his or her property?
Answer: Yes. An individual or private entity may prohibit or restrict personal
possession, smoking, and cultivation of marijuana on the individual's or entity's privately
owned property. A state or local government agency also may prohibit or restrict such
activities on property owned, leased, or occupied by the state or local government.
(Health & Safety §§ 11362.45(g) and (h).)
Ouestion # 5: Can a city ban personal indoor cultivation in all leased or multi -unit residences
within the city?
Answer: No. A city cannot prohibit personal indoor cultivation of marijuana in all leased
or multi -unit residences within the city. However, because cities may reasonably regulate
personal indoor cultivation, a city might be able to condition permit approval for personal
indoor cultivation in a leased residence on the applicant receiving permission from his or
her landlord.
Ouestion # 6: Does a city's ban on commercial cultivation, personal outdoor cultivation, or retail
sales of marijuana or marijuana products make it ineligible for state grant monies for law
enforcement, fire protection, or other local programs addressing public health and safety
associated with the implementation of Prop 64?
Answer: Yes. If a city bans commercial cultivation, or personal outdoor cultivation, or
retail sales of marijuana or marijuana products, it is ineligible to receive state grant
monies funded through the new state excise taxes that take effect on January 1, 2018.
(Revenue and Taxation Code § 34019(e)(3)(D).)
Question #7: What does the AUMA say about possession, transporting, purchasing or giving
away of non - medical marijuana?
Answer: A person 21 years of age or older may possess, process, transport, purchase or
give away to persons 21 years of age or older not more than 28.5 grams of marijuana in
the non - concentrated form and not more than 8 grams of marijuana in a concentrated
i
form including marijuana products. If the AUMA passes, these activities will be lawful
under state law and cannot be prohibited under local law.
Question #8: Do cities that ban or regulate medical marijuana businesses need to update their
ordinances to include nonmedical marijuana?
Answer: Yes. The AUMA prohibits state licensing authorities from issuing a license to a
commercial nonmedical marijuana business if operation of the business violates a local
ordinance of the jurisdiction in which the business will operate. This means that a city
wishing to adopt business or land use regulations prohibiting or regulating commercial
nonmedical marijuana businesses must adopt an ordinance prior to the date the state
begins issuing licenses, which the League anticipates will be in late 2017.2
Question #9: Can cities be confident that a permissive zoning code, by itself, provides sufficient
protection against nonmedical marijuana businesses setting up shop without local approval?
Answer: No. It is unlikely that cities will succeed in arguing that nonmedical marijuana
land uses are prohibited by permissive zoning codes under the AUMA, because the
AUMA does not contain the same protective language as the MMRSA with respect to
permissive zoning. Therefore, cities that wish to ban all or some nonmedical marijuana
activities should adopt express prohibitions, even if they operate under a permissive
zoning code.
Question #10: Are cities at risk of losing the opportunity to impose bans on personal outdoor
cultivation if they don't act until after the November election?
Answer: No. A city may adopt an ordinance banning or regulating personal outdoor
cultivation at any time.
Ouestion #11: Are cities at risk of losing the opportunity to impose bans on nonmedical
marijuana businesses, if they don't act until after the November election?
Answer: No. However, if a city does not adopt an ordinance expressly banning or
regulating nonmedical marijuana businesses before the state begins issuing state licenses
nonmedical businesses, a state - licensed nonmedical marijuana business will be able to
operate within its jurisdiction without local permission or permitting. This is due to a
provision in the AUMA that provides that state licenses cannot be issued where the
activity would violate a local ordinance. If a jurisdiction has no ordinance regulating
nonmedical marijuana businesses, then the local regulatory scheme is silent on that type
of activity, and the state can unilaterally issue a license under terms fully compliant with
the AUMA. Cities may adopt an ordinance expressly banning or regulating such
operations after the state begins to issue licenses, but it will be difficult to terminate the
state licensee's operations until the state license is up for renewal. Therefore, the best
practice is to adopt an ordinance before the state begins issuing state licenses.
2 Please see Question #8 regarding the use of public roads for transportation and delivery.
Question #12: Can cities ban deliveries under the AUMA?
Answer: Yes..Cities can ban deliveries within their territorial limits. However, cities
cannot prevent the use of public roads for the delivery of marijuana. For example, if a
licensed delivery company located in City A must travel on public roads through City B
to make an authorized delivery in City C, City B cannot prohibit the licensed delivery
company from travelling on public roads in City B to get to City C. In addition, cities
may not prevent the use of public roads within its jurisdiction to transport nonmedical
marihuana.
Question #13: What is the best way for cities to notify the state licensing agencies of their local
ordinances that regulate and/or prohibit commercial non - medical marijuana activities within their
jurisdictions?
Answer: Unless the state licensing agencies indicate otherwise, cities should mail copies
of their local ordinances that regulate or prohibit commercial nonmedical marijuana
activities within their jurisdictions to the Department of Consumer Affairs, the
Department of Food and Agriculture, and the Department of Public Health. Cities should
regularly check each Department's website to ensure that this practice complies with any
regulations the Departments may pass regarding notice of local ordinances. In addition,
Cities should ensure that any updates or amendments to local ordinances that regulate or
prohibit commercial nonmedical marijuana activities are promptly submitted to each
Department.
Ouestion #14: What are the rules regarding taxation under the AUMA? Is it true that marijuana
can no longer be subject to sales tax?
Answer: Under the AUMA, there is a 15% state excise tax on recreational marijuana,
but medical marijuana is exempt from state and local sales tax altogether. The rationale
is that marijuana consumed for truly medical purposes is no different from conventional
pharmaceuticals, which are also exempt from federal, state, and local sales. tax. However,
other forms of excise tax may be levied on all marijuana, whether medical or
recreational. For example, a cultivation tax, a manufacturing tax, or the most common, a
business license tax may still be levied at the local level on any commercial marijuana
activity. But note, because the AUMA levies a state excise tax of 15% on recreational
marijuana, all local governments have reason to be concerned about the cumulative tax
rate when local tax levies are added to that. For that reason, locals are encouraged to
look at existing local taxes and to assess what marijuana - related revenue streams may be
derived from those sources before levying additional taxes that are specific to marijuana.
4
LEAGUE°
OF CALIFOKN1A
CITIES
Attachment 3
1400 K Street, Suite 400 • Sacramento, California 95814
Phone: 916.658.8200 Fax: 916.658.8240
www.cacities.org
MEMORANDUM'
To: League of California Cities' City Managers Department
League of California Cities' City Attorneys Department
From: League Staff
Date: September 26, 2016
Re: The Control, Regulate and Tax Adult Use of Marijuana Act
On November 8, 2016, the Control, Regulate, and Tax Adult Use of Marijuana Act ( "AUMA" or
"Act ") will come before California voters as Proposition 64. If passed, the AUMA will legalize
the nonmedical use of marijuana by persons 21 years of age and over, and the personal
cultivation of up to six marijuana plants. In addition, the AUMA will create a state regulatory
and licensing system governing the commercial cultivation, testing, and distribution of
nonmedical marijuana, and the manufacturing of nonmedical marijuana products. The regulatory
system governing these commercial marijuana activities largely mirrors the Medical Marijuana
Regulation and Safety Act ( "MMRSA "), but there are key differences. This memorandum will
provide an overview of the AUMA, highlight the ways in which the AUMA differs from the
MMRSA, and identify the issues that cities will need to take action on if the AUMA passes.
I. Overview of the AUMA
A. Personal Nonmedical Marijuana Use
The AUMA makes it legal for persons 21 years of age or older to: (1) smoke or ingest marijuana
or marijuana products; (2) possess, process, transport, purchase, obtain, or give away to persons
21 years of age or older, without any compensation, 28.5 grams of marijuana, or 8 grams of
concentrated marijuana, including as contained in marijuana products; and (3) possess, plant,
cultivate, harvest, dry or process up to six living marijuana plants for personal use.2 The AUMA
requires that marijuana in excess of 28.5 grams that is produced by plants kept pursuant to the personal
cultivation provision of the Act be kept in a locked space on the grounds of a private residence that is not
visible from a public place s
Although persons 21 years of age or older may use and possess nonmedical marijuana under the
Act, their ability to engage in these activities is not unfettered. The AUMA prohibits the smoking
1 DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice
of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues
raised in these materials.
2 Health & Saf. Code § 11362.2(a).
3 Health & Saf. Code § 11362.2(a)(2).
of marijuana: (1) in any public place, except where a local jurisdiction has authorized use on the
premises of a retailer or microbusiness in accordance with Business and Professions Code
section 26200; (2) where smoking tobacco is prohibited; (3) within 1,000 feet of a school, day
care center, or youth center while children are present; and (3) while driving, or riding in the
passenger seat of, any vehicle used for transportation.4 Moreover, individuals cannot possess
marijuana on school grounds, in day care centers, or in youth centers while children are present,
or possess an open container of marijuana or marijuana products while driving, operating, or
riding in any vehicle used for transportation.5 The AUMA further provides that cities may
prohibit possession and smoking in buildings owned, leased, or occupied by the city, and that
employers, including cities, may maintain a drug and alcohol free workplace by prohibiting the
use, consumption, possession, transfer, transportation, sale, display or growth of marijuana in the
workplace.6
1. Personal Cultivation
The AUMA provides that local governments can reasonably regulate, but cannot ban, personal
indoor cultivation of up to six living marijuana plants within the person's private residence.7 The
Act defines private residence as "a house, an apartment unit, a mobile home, or other similar
dwelling unit. "8 This includes cultivation in a greenhouse on the same property as the residence
that is not physically part of the home, as long as it is fully enclosed, secure, and not visible from
a public space.9
The AUMA completely protects the ability of local governments to regulate, and to ban, personal
outdoor cultivation operations. 10 However, it purports to repeal any ordinance that bans outdoor
cultivation upon the California Attorney General's determination that nonmedical use of
marijuana is lawful under federal law. 11
B. Commercial Nonmedical Marijuana Activity
Under the AUMA, California will have a comprehensive state regulatory system for nonmedical
marijuana that governs the industry from "seed to sale." The Bureau of Marijuana Control,
currently the Bureau of Medical Cannabis Regulation, which is within the Department of
Consumer Affairs, will have primary responsibility for administering and enforcing the
AUMA. 12
The AUMA divides state licensing and enforcement responsibilities among three agencies: (1)
the Department of Consumer Affairs, which will issue licenses for marijuana the transportation,
4 Health & Saf. Code §§ 11362.3; 11362.4.
' Health & Saf. Code §§ 11362.3(3), 11362.3(4).
6 Health & Saf. Code § 11362.45 (f) -(g).
' Health & Saf. Code §§ 11362.1(a)(3), 11362.2.
8 Health & Saf. Code § 11362.2(5).
9 Health & Saf. Code § 11362.2(a)(2).
10 Health & Saf. Code § 11362.2(b)(3).
" Health & Saf. Code § 11362.2(b)(4).
12 Bus. & Prof. Code § 26010.
2
storage, distribution, and sale of marijuana; 13 (2) the Department of Food and Agriculture will
issue marijuana cultivation licenses, which will administer the provisions of the AUMA related
to the cultivation of marijuana; 14 and (3) the Department of Public Health, which will issue
licenses for marijuana manufacturers and testing laboratories. 15 Each of these state licensing
authorities is responsible for creating regulations governing their respective areas of
responsibility, and must begin issuing licenses by January 1, 2018.16
A state marijuana license will be valid for one year. 17 A separate state license is required for each
commercial marijuana business location. 18 With the exception of testing facilities, any person or
entity licensed under the AUMA may apply for and be issued more than one type of state
license. 19
1. Local Control
All nonmedical marijuana businesses must have a state license. 20 A state license cannot issue to
an applicant whose operations would violate the provisions of any local ordinance or
regulation, 2 1 However a state applicant need not provide documentation that the applicant has a
local license or permit.
The AUMA does not limit the authority of a local jurisdiction to adopt and enforce local
ordinances regulating or completely prohibiting state - licensed marijuana businesses. 22 Local
jurisdictions may establish "standards, requirements, and regulations regarding health and safety,
environmental protection, testing, security, food safety, and worker protections that exceed state
standards. "23
2. Local Enforcement
Like the MMRSA, the AUMA establishes a dual enforcement scheme for commercial marijuana
activities that violate either state or local laws. The state licensing authorities will enforce state
statutes and regulations. State authorities can suspend or revoke state licenses, 24 pursue civil
penalties against violating businesses in an amount equal to three times the applicable licensing
fee per violation, 25 or may prosecute violators criminally. 26 Local authorities will be responsible
13 Bus. & Prof. Code § 26012(a)(1).
14 Bus. & Prof. Code § 26012(a)(2).
15 Bus. & Prof. Code § 26012(3).
16 Bus. & Prof. Code §§ 26012(c), 26013 (a).
17 Bus. & Prof. Code § 26050(c).
18 Bus. & Prof. Code § 26055(c).
19 Bus. & Prof. Code § 26053.
20 Bus. & Prof. Code § 26038.)
21 Bus. & Prof. Code § 26055(e).
22 Bus. & Prof. Code § 26200(a). But see, Bus. & Prof. Code §§ 19340(f), 26080(b), 26090(c) [prohibiting cities
from preventing the use of public roads to lawfully transport or deliver nonmedical marijuana].
23 Bus. & Prof. Code § 26201.
24 Bus. & Prof. Code § 2603.
25 Bus. & Prof. Code § 26038(a)
26 Bus. & Prof. Code § 26038(c).
for enforcing local ordinances and regulations. 27 For state - licensed facilities operating within a
city, a city may have authority to enforce state law and regulations "if delegated the power to do
so by the [ B]ureau [of Marijuana Control] or a licensing authority. "28
II. Key Differences Between the AUMA and MMRSA
A. Licensing
The MMRSA established dual licensing of medical marijuana businesses, requiring both local
approval and a state license in order for a'business to operate legally. 29 Specifically, the MMRSA
requires applicants to provide the relevant state licensing entity with documentation proving their
compliance with local ordinances and regulations. 30
The AUMA does not require an applicant to provide evidence of local permission prior to being
issued a state license. 31 Instead, the AUMA prohibits state licensing entities from approving
licenses for activities that would violate local ordinances. 32 Thus, state licensing officials bear
the onus of evaluating local regulatory compliance.
Under this system, the AUMA allows a nonmedical marijuana business licensed by the state to
operate within city limits unless the city's municipal code prohibits the use. Cities that wish to
regulate or prohibit nonmedical marijuana businesses will need to do so before the State begins
issuing licenses, either by enacting a nonmedical marijuana ordinance /regulation or by amending
an existing medical marijuana ordinance /regulation to include nonmedical marijuana within its
scope.
B. License Revocation
Under the MMRSA, revocation of a local license or permit unilaterally terminates the ability of
the medical marijuana business to operate in the jurisdiction issuing the permit, until such time as
the local permitting entity reinstates it.33 .
Under the AUMA, if a local jurisdiction revokes a local license, permit, or authorization for a
licensee to engage in commercial marijuana activity within the local jurisdiction, the Bureau of
Marijuana Control must initiate proceedings to determine whether the state license issued should
be suspended or revoked within ten days of being notified by the local jurisdiction of the local
revocation. 34 Note, however, that, even if the state license is not suspended or revoked
immediately, the business cannot operate within the local jurisdiction once local revocation
occurs.
27 Bus. & Prof. Code § 26200 (b).
28 Bus. & Prof. Code § 23202(a).
29 Bus. & Prof. Code § 19320(b).
30 Bus. & Prof. Code § 19322(a).
31 Bus. & Prof. Code § 26056.
32 Bus. & Prof. Code § 26055(e).
33 Bus. & Prof. Code § 19320(d).
34 Bus. & Prof. Code § 26200(c).
M
C. Personal, Indoor Cultivation
Under the MMRSA, local governments possess the power to regulate and completely ban
personal, indoor cultivation. 35 Under the AUMA local governments can "reasonably regulate"
indoor cultivation of up to six marijuana plants for personal use, but cannot ban it.36
D. Personal Outdoor Cultivation
Under the MMRSA local governments can prohibit all outdoor cultivation. Under the AUMA
local governments can prohibit all outdoor cultivation, until such time as the Attorney General
determines that the use of nonmedical marijuana is lawful in the State of California under federal
law. 37 Upon such determination, the AUMA purports to repeal all local bans on outdoor
cultivation. 38
E. Amendment
Any portion of the MMRSA can be amended at any time, if there is sufficient political. support
within the Legislature for making substantive changes to the regulatory structure. Under some
circumstances, an amendment to the MMRSA by the Legislature might arguably violate The
Compassionate Use Act of 1996 (adopted by the voters as Proposition 215), which
decriminalized the personal use of medical marijuana. 39
Under the AUMA, the Legislature may amend Sections 5 (relating to the use of medical
marijuana for medical purposes) and 6 (relating to state licensing) and the provisions relating to
penalties by majority vote. The Legislature may amend any other provision of the Act by a 2/3
vote. Any amendment must further the purposes and intent of the AUMA. The purpose and
intent of the Act include allowing local governments to ban nonmedical marijuana businesses.
F. Taxation
The AUMA imposes new state taxes on medical and nonmedical marijuana in the following
manner:
• Effective January 1, 2018, the AUMA imposes an excise tax at the rate of 15% of gross
retail sales receipts . 40
o This tax will be in addition to existing state and local sales tax.41 Given that state
and local sales taxes can range from 7 -10 %, the combined excise tax + sales tax at
the retail level could approach 25 %;
35 Health & Saf, Code § 11362.777(g); Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984; Kirby v. County
of Fresno (2015) 242 Cal.App.4th 940, 969 -970.
36 Bus. & Prof. Code § 11362.2(b)(1).
37 Bus. & Prof. Code § 11362.2(b)(4).
38 Bus. & Prof. Code § 11362.2(b)(4).
39 Health & Saf. Code § 11362.5.
40 Rev. & Tax Code § 34011(a).
Effective January 1, 2018, the AUMA imposes a separate cultivation tax on all harvested
marijuana as follows: 42
o $9.25 per dry- weight ounce on all marijuana flowers;
o $2.75 per dry- weight ounce on all marijuana leaves;
The AUMA prohibits imposition of state and local sales taxes on medical marijuana. 43
The AUMA exempts marijuana cultivated for personal use from taxation. 44
The AUMA does not pre -empt local taxation. 45 However, the AUMA's estimated cumulative tax
rate of nearly 35% on the purchase of nonmedical marijuana has potentially troubling
implications for local governments. A high state tax rate by itself may depress sales and
stimulate the black market. Any local taxation of marijuana should be governed by an awareness
that a high retail sales tax rate, imposed on an industry that, until recently, has not been regulated
at all, might stimulate black market activity and compromise the anticipated yield of revenue. In
order to avoid such a result, cities might consider imposing an excise tax on discrete commercial
nonmedical marijuana activities rather than on retail sales. New taxes on marijuana require
compliance with Proposition 218.
1. Allocation of State Tax Revenues
After repaying certain state agencies for marijuana regulatory costs not covered by license fees,
and malting certain grants to universities for research and development and the Governor's
Office of Business and Economic Development, the AUMA distributes the remaining tax
revenue as follows:
• 60% for youth programs, substance abuse education, prevention and treatment;
• 20% for environmental cleanup and remediation; and
• 20% for state and local programs that reduce DUI and grant programs designed to reduce
negative health impacts resulting from marijuana legalization
G. Deliveries
Under the MMRSA, medical marijuana deliveries can only be made from a state - licensed
dispensary in a city, county, or city and county that does not explicitly prohibit it by local
ordinance. 46 A delivery person must carry a copy of the dispensary's state - issued license, a
government ID, and a copy of the delivery request. 47 The patient or caregiver requesting the
delivery must also maintain a copy of the delivery request. 48 Dispensaries and delivery Teople
who comply with MMRSA are immune from prosecution for marijuana transportation. 9
41 Rev. & Tax Code § 34011(d).
42 Rev. & Tax Code § 34012.
43 Rev. & Tax Code § 34011(g).
44 Rev. & Tax Code § 340120).
45 Rev. & Tax Code § 34021.
46 Bus. & Prof. Code § 19340(a).
47 Bus. & Prof. Code §§ 19340(b)(2), 19340(d).
48 Bus. & Prof. Code § 19340(e).
49 Bus. & Prof. Code § 19317(f).
rel
Under the AUMA, deliveries can be made by a state - licensed retailer, microbusiness, or
nonprofit unless they are prohibited by local ordinance.50 Although the AUMA does require a
customer requesting delivery to maintain a copy of the delivery request, there is no express
requirement that delivery people carry or maintain any records. 51 Moreover, unlike the MMRSA,
the AUMA does not require that deliveries come from a dispensary. Instead, it states that
"Deliveries, as defined in this division, may only be made by a licensed retailer or microbusiness,
or a licensed-nonprofit under Section 26070.5. "52 Thus, there is at least some question regarding
whether deliveries may be made from non - retail locations by retail employees.
Under both the MMRSA and the AUMA, local jurisdictions can ban or regulate deliveries within
their borders. 53 However, local jurisdictions cannot prevent a delivery service from using public
roads to simply pass through its jurisdiction from a licensed dispensary to a delivery location
outside of its boundaries. 54
III. Local Regulatory Options 55
The AUMA preserves the authority of a city to adopt business regulations and land use
regulations for nonmedical marijuana activities. 56
A. Personal Marijuana Cultivation
Under the AUMA local governments can regulate or ban all personal, outdoor cultivation, until
such time as the Attorney General determines that the use of nonmedical marijuana is lawful in
the State of California under federal law. In addition, local governments can "reasonably
regulate," but cannot ban, personal, indoor cultivation. Nothing in the AUMA requires a city to
enact an ordinance or regulation by a certain date. However, assuming that the AUMA passes, if
a city does not have a ban or regulatory scheme govern ing personal, outdoor cultivation or a
regulatory scheme governing personal, indoor cultivation in place before November 9, 2016, a
person may legally engage in personal cultivation of up to six marijuana plants at his or her
private residence.
50 Bus. & Prof. Code §26090(a).
51 Bus. & Prof. Code §26090(b).
5' Bus. & Prof. Code § 26090(a).
5s Bus. & Prof. Code §§ 19340(a), 19316(a), 26200.
54 Bus. & Prof. Code §§ 19340(f), 26080(b), 26090(c).
55 For a thorough discussion of the various marijuana regulatory options that a city may consider, see McEwen,
Medical Maryuana- Revisited After New State Laws (Spring 2016) <http://www.cacities.org/Resources-
Documents/Memb er- Engagement/Professional -D epartments/ City- Attorneys/Library /2016 /Spring - 2016/5 -2016 -
Spring- Medical- Marijuana- %E2 %80 %93- Revisited - After >. In addition, sample ordinances may be found on the
League's website, at: http: / /www.cacities.org/ Policy- Advocacy/Hot- Issues/Medical- Marijuana. But note: the
regulatory schemes discussed in the McEwen paper and posted on the League's website pertain to medical
marijuana businesses under the MMRSA and may need to be modified to comply with the requirements of the
AUMA.
56 Health & Saf. Code § 11362.2; Bus. & Prof. Code §§ 26201, 26200(a).
7
B. Nonmedical Marijuana Businesses
The AUMA recognizes a range of businesses, including dispensaries, cultivators, manufacturers,
distributors, transporters, and testing laboratories. Cities may expressly ban, adopt business
regulations, or adopt land use regulations pertaining to any or all of these businesses.
Again, the AUMA does not require a city to enact a regulatory scheme or ban by a certain date.
However, assuming that the AUMA passes in November, if a city wishes to regulate or ban
marijuana businesses before marijuana businesses may legally operate within the city, the
regulations or ban will need to take effect before the state begins issuing nonmedical marijuana
business licenses. The League anticipates that cities have until January 1, 2018 to enact bans or
regulations relating to nonmedical marijuana businesses, because: (1) nonmedical marijuana
businesses cannot operate in any city without a state license; 57 (2) the state licensing agencies in
charge of implementing the AUMA have stated that they anticipate that they will not begin
issuing licenses under the NEVIRSA until January 2018, and it is unlikely that said agencies will
be able to begin issuing licenses under the AUMA before they begin issuing licenses under the
MMRSA; and (3) the AUMA does not require state agencies to issue licenses until January 1,
2018.58 It is not the League's position that state licensing agencies cannot issue licenses before
January 1, 2018, just that it is unlikely that they will do so.
C. Caution Against Use of Permissive Zoning
Under a permissive zoning code, any use not enumerated in the code is presumptively prohibited,
unless an authorized city official finds that the proposed use is substantially the same in character
and intensity as those land uses listed in the code. 59 Although the NIMRSA upheld a city's
'authority to rely on permissive zoning to prohibit medical marijuana land uses, it is unlikely that
cities will succeed in arguing that nonmedical marijuana land uses are prohibited by permissive
zoning under the AUMA. This is so because: (1) the statutory language in the AUMA regarding
local control seems to anticipate that a city will adopt an ordinance explicitly prohibiting and /or
regulating nonmedical marijuana businesses (rather than relying on the silence of its Code to
argue for a prohibited use); 60 (2) the AUMA does not contain the same protective language as the
"Bus. & Prof. Code § 26038.
58 Bus. & Prof. Code § 26012 (c).
s9 See City of Corona v. Naulls (2008) 166 Cal.AppAth 418, 433 -436. See also County of Los Angeles v. Hill (2011)
192 Cal.AppAth 861, 871 [holding that "medical marijuana dispensaries and pharmacies are not `similarly situated'
for public health and safety purposes "]; City of Monterey v. Carr•nshimba (2013) 215 Cal.AppAth 1068, 1091
[holding that a medical marijuana dispensary was not substantially similar to the listed commercial use
classifications for personal services, retail sales, pharmacies and medical supplies]; County of Tulare v. Nunes
(2013) 215 Cal.AppAth 1188,1205 [holding that a medical marijuana collective did not qualify as an "agricultural"
land use because "marijuana is a controlled substance and is not treated as a mere crop or horticultural product under
the law "].
60 Bus. & Prof Code § 26200 [ "Nothing in this division shall be interpreted to supersede or limit the authority of a
local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including,
but not limited to, local zoning and land use requirements, business license requirements, and requirements related
8
MMRSA with respect to permissive zoning; 61 and (3) the AUMA explicitly designates
nonmedical marijuana as an agricultural product —thus if a city's permissive zoning code
authorizes agricultural uses, the city may be precluded from arguing that marijuana is
prohibited.62 Therefore, cities that wish to ban all or some nonmedical marijuana activities
should adopt express prohibitions, even if they operate under a permissive zoning code.
IV. What actions need to be taken?
At this time city officials should: (1) review the city's municipal code; (2) consider whether they
wish to regulate the personal cultivation of nonmedical marijuana indoors; (3) consider whether
they wish to regulate or ban the personal cultivation of nonmedical marijuana outdoors; (4)
consider whether they wish to enact business regulations of nonmedical marijuana businesses;
(5) consider whether they wish to enact land use regulations of nonmedical marijuana
businesses; (6) consider whether they wish to enact local taxes on marijuana; and (7) comply
with Proposition 218 if they decide to enact local taxes on marijuana.
Cities should prioritize considering or enacting ordinances regulating personal nonmedical
marijuana cultivation, because it will be legal under state law on November 9, 2016 if the
AUMA passes, whereas nonmedical marijuana businesses will not be able to operate lawfully
until the state licensing system becomes operational (likely in late 2017). Although cultivation
for personal use will be legal as of November 9, 2016 if the AUMA is approved by voters,
local governments will not lose any regulatory authority if they do not have an ordinance in
place addressing personal cultivation before the election. Locals will retain the ability to
regulate personal cultivation and to enact related ordinances at any time after the election.
The only change the AUMA will make in this area is to prohibit local bans of indoor
cultivation for personal use. No ordinance enacted prior to the election can prevent this
change in the law.
to reducing exposure to second hand smoke, or to completely prohibit the establishment or operation of one or more
types of businesses licensed under this division within the local jurisdiction. "] (emphasis added).
" Compare Health & Saf. Code § 11362.777(b)(3) [a "person or entity shall not submit an application for a state
license ... if the proposed cultivation of marijuana will violate the provisions of any local ordinance or regulation,
or if medical marijuana is prohibited by the city, county, or city and county in which the cultivation is proposed to
occur, either expressly or otherwise under principles of permissive zoning "] with Bus. & Prof Code § 26205(e)
[ "Licensing authorities shall not approve an application for a state license under this division if approval of the state
license will violate the provisions of any local ordinance or regulation adopted in accordance with Section 26200. "].
62 Bus. & Prof. Code § 26067(a).
VE