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CC SR 20160216 04 - Medical Marijuana OrdinanceCITY OF RANCHO PALOS VERDES PUBLIC HEARING Date: February 16, 2016 Subject: Consideration and Possible Action to Enact a Code Amendment to Regulate and Prohibit Medical Marijuana (ZON2016-00050) Subject Property: Citywide 1. Report of Notice Given: City Clerk Morreale 2. Declare the Hearing Open: Mayor Dyda 3. Staff Report & Recommendation: Deputy Community Development Director Mihranian 4. Public Testimony: Appellant: N/A Applicant: City 5. Council Questions: 6. Rebuttal: 7. Council Deliberation: 8. Declare Hearing Closed: Mayor Dyda 9. Council Action: 1 RANCHO PALOS VERDES CITY COUNCIL AGENDA REPORT AGENDA DESCRIPTION: MEETING DATE: 02/16/2016 AGENDA HEADING: Public Hearing Consideration and possible action to enact a Code Amendment to regulate and prohibit medical marijuana (Case No. ZON2016-00050) RECOMMENDED COUNCIL ACTION: 1) Direct Staff to initiate the Code Amendment process to add a new Chapter 8.18 to Title 8 of the Rancho Palos Verdes Municipal Code, and to amend Title 17 of the Rancho Palos Verdes Zoning Code to expressly regulate or prohibit medical marijuana cultivation, dispensation, mobile delivery, and/or processing, etc., throughout the City. FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A 'I ORIGINATED BY: Ara Mihranian, Deputy Community Development Director' -O - REVIEWED BY: Terry Rodrigue, Interim Community Development Director_ APPROVED BY: Doug Willmore, City Manager..-`F`"r ATTACHED SUPPORTING DOCUMENTS: A. Assembly Bill No. 21 (page A-1) BACKGROUND AND DISCUSSION: The State Medical Marijuana Regulation and Safety Act ("MMRSA") was enacted by the State Legislature in 2015 as a means of preserving cities' local police powers to regulate and prohibit the cultivation, processing, mobile delivery, and dispensation of medical marijuana. However, the MMRSA inadvertently included language that could have preempted (i.e., nullified) local agencies' basic police powers to regulate marijuana cultivation if no ordinance was enacted by cities by March 1, 2016. At the time that the public notice for this matter was published on January 30, 2016, the MMRSA still included this March 1St deadline for action by local agencies. However, on February 3, 2016, Governor Brown signed AB 21 (see attachment), thereby repealing the March 1St deadline. In light of this, the adoption of an Urgency Ordinance to prohibit the cultivation of medical marijuana is no longer an urgent matter. Nonetheless, Staff recommends that the City Council initiate the planning process to amend the Municipal 2 Code and Zoning Code to explicitly regulate or prohibit the cultivation, processing, mobile delivery, and/or dispensation of medical marijuana throughout the City. If so directed, the Planning Commission will review and forward recommended draft ordinance language for the Council's consideration within the next two months. It should be noted that the City's existing municipal and zoning codes are currently silent as to express regulations or prohibitions relating to medical marijuana businesses. However, the Zoning Code is structured as a "permissive zoning system" such that medical marijuana cultivation, processing and dispensation, as uses not specifically enumerated in the Zoning Code, are currently prohibited. If adopted, express regulations or prohibitions relating to medical marijuana could clarify this prohibition or such other regulations for medical marijuana, as directed by the Council. Additionally, Section 5.10.020(d) of the Municipal Code prevents the City from issuing a business permit so long as marijuana remains prohibited under the laws of the United States. CONCLUSION: For the foregoing reasons, Staff and the City Attorney's office jointly recommend that the City Council initiate Code Amendment proceedings to explicitly prohibit or regulate the cultivation, processing, mobile delivery, and/or dispensation of medical marijuana throughout the City in order to retain maximum local regulatory authority and to protect the public peace, health, and safety. ALTERNATIVES: In addition to the Staff recommendation, the following alternative actions are available for the City Council's consideration: Affirm that the City's Zoning Code, operating as a "permissive zoning system," currently prohibits medical marijuana cultivation, processing, mobile delivery, and/or dispensation because such uses are not specifically enumerated in the Zoning Code, and direct Staff not to proceed with amending the Code. Such affirmation could be made by resolution at a future meeting. 2. Direct Staff to take no action at this time. 3 Bill Text - AB -21 Medical marijuana: cultivation licenses. P--� ,� LEGISLATIVE INFORMATION AB -21 Medical marijuana: cultivation licenses. (2015-2016) Assembly Bill No. 21 CHAPTER 1 Page 1 of 5 An act to amend Section 11362.777 of the Health and Safety Code, relating to medical marijuana, and declaring the urgency thereof, to take effect immediately. Approved by Governor February 03, 2016. Filed with Secretary Of State February 03, 2016. ] LEGISLATIVE COUNSEL'S DIGEST AB 21, Wood. Medical marijuana: cultivation licenses. Existing law, the Compassionate Use Act of 1996, an initiative measure enacted by the approval of Proposition 215 at the November 5, 1996, statewide general election, authorizes the use of marijuana for medical purposes. Existing law, enacted by the Legislature, provides for the licensing and regulation by both state and local entities of medical marijuana and its cultivation. Existing law provides that if a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, commencing March 1, 2016, the Department of Food and Agriculture is the sole licensing authority for medical marijuana cultivation applicants in that city, county, or city and county. This bill would delete the provision that grants the department the sole licensing authority under those circumstances. Existing law exempts certain persons cultivating medical marijuana from the requirement to obtain both a state license from the Department of Food and A-1 http://leginfo.legislature.ca.gov/faces/bilINavClient.xhtml?bill_id=201520160AB21 2/9/2016 Bill Text - AB -21 Medical marijuana: cultivation licenses. Page 2 of 5 Agriculture and a license, permit, or other entitlement allowing cultivation from the city, county, or city and county in which the cultivation will occur. Existing law authorizes a city, county, or city and county to regulate or ban the cultivation, storage, manufacture, transport, provision, or other activity by a person otherwise exempt from state regulation, or to enforce that regulation or ban. This bill would instead provide that an exemption from these licensure requirements does not limit or prevent a city, county, or city and county from exercising its police power authority under a specified provision of the California Constitution. This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3 Appropriation: no Fiscal Committee: no Local Program: no THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11362.777 of the Health and Safety Code is amended to read: 11362.777. (a) The Department of Food and Agriculture shall establish a Medical Cannabis Cultivation Program to be administered by the secretary and, except as specified in subdivision (c), shall administer this section as it pertains to the cultivation of medical marijuana. For purposes of this section and Chapter 3.5 (commencing with Section 19300) of Division 8 of the Business and Professions Code, medical cannabis is an agricultural product. (b) (1) A person or entity shall not cultivate medical marijuana without first obtaining both of the following: (A) A license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city, county, or city and county in which the cultivation will occur. (B) A state license issued by the department pursuant to this section. (2) A person or entity shall not submit an application for a state license issued by the department pursuant to this section unless that person or entity has received a license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from the city, county, or city and county in which the cultivation will occur. (3) A person or entity shall not submit an application for a state license issued by the department pursuant to this section 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 A-2 http://leginfo.legislature.ca.gov/faces/bilINavClient.xhtml?bill_id=201520160AB21 2/9/2016 Bill Text - AB -21 Medical marijuana: cultivation licenses. Page 3 of 5 cultivation is proposed to occur, either expressly or otherwise under principles of permissive zoning. (c) (1) Except as otherwise specified in this subdivision, and without limiting any other local regulation, a city, county, or city and county, through its current or future land use regulations or ordinance, may issue or deny a permit to cultivate medical marijuana pursuant to this section. A city, county, or city and county may inspect the intended cultivation site for suitability before issuing a permit. After the city, county, or city and county has approved a permit, the applicant shall apply for a state medical marijuana cultivation license from the department. A locally issued cultivation permit shall only become active upon licensing by the department and receiving final local approval. A person shall not cultivate medical marijuana before obtaining both a permit from the city, county, or city and county and a state medical marijuana cultivation license from the department. (2) A city, county, or city and county that issues or denies conditional licenses to cultivate medical marijuana pursuant to this section shall notify the department in a manner prescribed by the secretary. (3) A city, county, or city and county's locally issued conditional permit requirements must be at least as stringent as the department's state licensing requirements. (d) (1) The secretary may prescribe, adopt, and enforce regulations relating to the implementation, administration, and enforcement of this part, including, but not limited to, applicant requirements, collections, reporting, refunds, and appeals. (2) The secretary may prescribe, adopt, and enforce any emergency regulations as necessary to implement this part. Any emergency regulation prescribed, adopted, or enforced pursuant to this section shall be adopted in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, and, for purposes of that chapter, including Section 11349.6 of the Government Code, the adoption of the regulation is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, and general welfare. (3) The secretary may enter into a cooperative agreement with a county agricultural commissioner to carry out the provisions of this chapter, including, but not limited to, administration, investigations, inspections, licensing and assistance pertaining to the cultivation of medical marijuana. Compensation under the cooperative agreement shall be paid from assessments and fees collected and deposited pursuant to this chapter and shall provide reimbursement to the county agricultural commissioner for associated costs. (e) (1) The department, in consultation with, but not limited to, the Bureau of A-3 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB21 2/9/2016 Bill Text - AB -21 Medical marijuana: cultivation licenses. Page 4 of 5 Medical Marijuana Regulation, the State Water Resources Control Board, and the Department of Fish and Wildlife, shall implement a unique identification program for medical marijuana. In implementing the program, the department shall consider issues, including, but not limited to, water use and environmental impacts. In implementing the program, the department shall ensure that: (A) Individual and cumulative effects of water diversion and discharge associated with cultivation do not affect the instream flows needed for fish spawning, migration, and rearing, and the flows needed to maintain natural flow variability. (B) Cultivation will not negatively impact springs, riparian wetlands, and aquatic habitats. (2) The department shall establish a program for the identification of permitted medical marijuana plants at a cultivation site during the cultivation period. The unique identifier shall be attached at the base of each plant. A unique identifier, such as, but not limited to, a zip tie, shall be issued for each medical marijuana plant. (A) Unique identifiers will only be issued to those persons appropriately licensed by this section. (B) Information associated with the assigned unique identifier and licensee shall be included in the trace and track program specified in Section 19335 of the Business and Professions Code. (C) The department may charge a fee to cover the reasonable costs of issuing the unique identifier and monitoring, tracking, and inspecting each medical marijuana plant. (D) The department may promulgate regulations to implement this section. (3) The department shall take adequate steps to establish protections against fraudulent unique identifiers and limit illegal diversion of unique identifiers to unlicensed persons. (f) (1) A city, county, or city and county that issues or denies licenses to cultivate medical marijuana pursuant to this section shall notify the department in a manner prescribed by the secretary. (2) Unique identifiers and associated identifying information administered by a city or county shall adhere to the requirements set by the department and be the equivalent to those administered by the department. (g) This section does not apply to a qualified patient cultivating marijuana pursuant to Section 11362.5 if the area he or she uses to cultivate marijuana does not exceed 100 square feet and he or she cultivates marijuana for his or her personal medical use and does not sell, distribute, donate, or provide marijuana to any other person or entity. This section does not apply to a primary caregiver A-4 http://Ieginfo.legislature.ca.gov/faces/bilINavClient.xhtml?bill_id=201520160AB21 2/9/2016 Bill Text - AB -21 Medical marijuana: cultivation licenses. Page 5 of 5 cultivating marijuana pursuant to Section 11362.5 if the area he or she uses to cultivate marijuana does not exceed 500 square feet and he or she cultivates marijuana exclusively for the personal medical use of no more than five specified qualified patients for whom he or she is the primary caregiver within the meaning of Section 11362.7 and does not receive remuneration for these activities, except for compensation provided in full compliance with subdivision (c) of Section 11362.765. For purposes of this section, the area used to cultivate marijuana shall be measured by the aggregate area of vegetative growth of live marijuana plants on the premises. Exemption from the requirements of this section does not limit or prevent a city, county, or city and county from exercising its police authority under Section 7 of Article XI of the California Constitution. SEC. 2. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: To allow local governments to protect the health of their citizens by regulating marijuana at the earliest possible date, it is necessary that this act take effect immediately. A-5 http://leginfo.legislature.ca.gov/faces/bilINavClient.xhtml?bill_id=201520160AB21 2/9/2016