Chapter 17.96
MARIJUANA CULTIVATION AND DISPENSARIES PROHIBITED
Sections:
17.96.030 Relationship to other laws.
17.96.050 Prohibition of marijuana cultivation.
17.96.060 Consumption of medical marijuana.
17.96.070 Dispensary as a prohibited use.
17.96.080 Public nuisance declared.
17.96.090 Violation and penalty.
17.96.010 Purpose and intent.
The purpose of this chapter is to expressly prohibit the cultivation of marijuana and marijuana dispensaries in all zone districts in order to protect the public peace, health, safety, and general welfare of the citizens of the city. (Ord. 16-02 §1(part), 2016).
17.96.020 Findings.
A. The council hereby finds that the cultivation of marijuana significantly impacts, or has the potential to significantly impact, the city’s jurisdiction. These impacts include damage to buildings in which cultivation occurs, including improper and dangerous electrical alterations and use, inadequate ventilation, increased occurrences of home-invasion robberies and similar crimes and nuisance impacts to neighboring properties from the strong and potentially noxious odors from the plants, and increased crime.
B. According to the chief of police, marijuana grows have been operating in the surrounding cities and the county of Fresno for several years and have been the subject of armed robberies with shots fired, incidents with juveniles and young adults, trespass, theft, and arrests for violation of both state and federal laws, including seizure of illegal firearms. There has been some cultivation within the city and cultivation is likely to increase as surrounding cities and the county have banned or are banning cultivation. Marijuana cultivation attracts crime and associated violence and is harmful to the safety and welfare of the city and its residents and constitutes a public nuisance.
C. Marijuana cultivation in the city poses a threat to the public peace, health and safety. Many marijuana grows have emerged in the city which are very visible to the public, and easily accessible to the public, including children and youths. There is a threat of violent crime due to the size, location, and monetary value of these mature marijuana grows.
D. It is acknowledged that the voters of the state of California have provided a limited criminal defense to the cultivation, possession and use of marijuana for medical purposes through the adoption of the Compassionate Use Act in 1996 pursuant to Proposition 215 and codified as Health and Safety Code Section 11362.5. The Compassionate Use Act (CUA) does not address the land use or other impacts that are caused by the cultivation of marijuana.
E. The CUA is limited in scope, in that it only provides a defense from criminal prosecution for possession and cultivation of marijuana to qualified patients and their primary caregivers. The scope of the Medical Marijuana Program Act (MMPA), commencing with Health and Safety Code Section 11362.7, is also limited in that it establishes a statewide identification program and affords qualified patients, persons with identification cards and their primary caregivers, an affirmative defense to certain enumerated criminal sanctions that would otherwise apply to transporting, processing, administering or distributing marijuana.
F. Neither the CUA and MMPA nor the California Constitution creates a right to cultivate medical marijuana.
G. It is critical to note the CUA and MMPA do not abrogate the city’s powers to regulate for public health, safety, and welfare. Health and Safety Code Section 11362.5(b)(2) provides that the CUA does not supersede any legislation intended to prohibit conduct that endangers others. In addition, Health and Safety Code Section 11352.83 authorizes cities and counties to adopt and enforce rules and regulations consistent with MMPA.
H. The council finds that neither the CUA nor the MMPA preempts the city’s exercise of its traditional police powers in enacting land use and zoning regulations, as well as legislation for preservation of public health, safety, and welfare, such as this zoning ordinance prohibiting marijuana cultivation and dispensaries in all zone districts.
I. Marijuana remains an illegal substance under the Federal Controlled Substances Act, 21 U.S.C. 801 et seq., and is classified as a "Schedule I Drug," which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for its use under medical supervision. Furthermore, the Federal Controlled Substances Act makes it unlawful for any person to cultivate, manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense marijuana. The Controlled Substances Act contains no statutory exemption for the possession of marijuana for medical purposes. The city does not wish to be in violation of federal law.
J. In 2013, the California Supreme Court confirmed that cities have the authority to ban medical marijuana land uses (City of Riverside v. Inland Empire Patients Health and Wellness Center (2013) 56 Cal. 4th 729).
K. Under the Federal Controlled Substances Act, codified in 21 U.S.C. Section 801 et seq., the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need.
L. On October 9, 2015, Governor Jerry Brown signed into law three bills--AB 243, AB 266 and SB 643--which together form the Medical Marijuana Regulation and Safety Act ("MMRSA"). The MMRSA, which became effective January 1, 2016, creates a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis.
M. In addition to creating these state controls, the MMRSA preserves the city’s authority to prohibit, regulate and/or license medicinal marijuana uses within its jurisdiction, as it expressly provides in the MMRSA. (Business and Professions Code Sections 19315(a), 19316, and 19316(c).)
N. The MMRSA further expressly allows local governments to enact ordinances expressing their intent to prohibit the cultivation of marijuana and their intent not to administer a conditional permit program pursuant to Health and Safety Code Section 11362.777 for the cultivation of marijuana (Health and Safety Code Section 11362.777(c)(4)).
O. The MMRSA requires a local government that wishes to prevent marijuana delivery activity, as defined in Business and Professions Code Section 19300.5(m), from operating within the local government’s boundaries to enact an ordinance affirmatively banning such delivery activity (Business and Professions Code Section 19340(a)).
P. Under the dual licensing system created by the Act, before any kind of medical marijuana license will be issued by the state, the applicant must have obtained the necessary local license and/or permit for the requested marijuana-related use.
Q. Pursuant to the following statutes created by the Act, local jurisdictions that adopt a ban on medicinal marijuana dispensaries and/or cultivation will effectively have a veto over whether a state license for the locally regulated activities can be issued (Business and Professions Code Sections 19312 and 19320(b); Health and Safety Code Section 11362.777(b)(1)).
R. The city hereby reaffirms and confirms that the city’s zoning code is adopted and operates under the principles of permissive zoning, meaning that any land use not specifically authorized or identified in the zoning code is prohibited. California Health and Safety Code Section 11362.777(b)(3) expressly provides that the Department of Food and Agriculture may not issue a state license to cultivate medical marijuana within a city that prohibits cultivation under the principles of permissive zoning. Notwithstanding this, and without waiving any rights pursuant to its permissive zoning, the adoption of prohibitions of marijuana cultivation and dispensaries is in the interest of the city.
S. Several California cities have reported negative impacts of marijuana cultivation, processing and delivery and/or distribution activities, including but not limited to offensive odors, the illegal sale and distribution of marijuana, and public health concerns including fire hazards and problems associated with mold, fungus, and pests.
T. Due to the value of marijuana plants and their strong smell (which alerts others to their locations), marijuana cultivation creates an increased risk to public safety and/or an "attractive nuisance."
U. The indoor cultivation of marijuana has potential adverse effects to the structural integrity of the buildings in which it is cultivated, and the use of high wattage grow lights and excessive use of electricity increases the risk of fire, which presents a clear and present danger to the building and its occupants.
V. The Attorney General’s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or other concentration of marijuana in any location or premises without adequate security increases the risk that nearby homes or businesses may be negatively impacted by nuisance activity such as loitering or crime.
W. Based on the experiences of other cities, the foregoing negative effects on the public health, safety, and welfare would be likely to occur in the city due to marijuana cultivation and dispensaries and their associated activities.
X. The city council held a public hearing on February 17, 2016, and duly considered staff reports, planning commission recommendations, and public comments.
Y. The city has a compelling interest in protecting the public health, safety, and welfare of its residents and businesses and in preserving the peace and quiet of the neighborhoods in which marijuana is currently grown. (Ord. 16-02 §1(part), 2016).
17.96.030 Relationship to other laws.
This chapter is not intended to, nor shall it be construed or given effect in a manner that causes it to, apply to any activity that is regulated by federal or state law to the extent that application of this chapter would conflict with such law or would unduly interfere with the achievement of federal or state regulatory purposes. This chapter shall be interpreted to be compatible and consistent with federal, county and state enactments and in furtherance of the public purposes which those enactments express. This chapter will supersede any other provisions of this code found to be in conflict therewith. (Ord. 16-02 §1(part), 2016).
17.96.040 Definitions.
For purposes of this chapter, unless the particular provision or the context otherwise clearly requires, the definitions in this section shall govern the construction, meaning, and application of words and phrases used in this chapter:
A. "Cultivation" means the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof in any location.
B. "Marijuana" means all parts of the plant Cannabis sativa L., whether growing or not, and includes medical marijuana.
C. "Medical marijuana" means marijuana used for medical purposes in accordance with California Health and Safety Code Section 11362.5.
D. "Collective, cooperative or dispensary" means a collective, cooperative, dispensary, operator, establishment, provider, association or similar entity that cultivates, distributes, delivers, or processes marijuana for medical purposes relating to a qualified patient or primary caregiver, pursuant to the Compassionate Use Act and the Medical Marijuana Program Act.
E. "Primary caregiver" means a primary caregiver as defined in Health and Safety Code Section 11362.7.
F. "Qualified patient" means a qualified patient as defined in Health and Safety Code Section 11362.7. (Ord. 16-02 §1(part), 2016).
17.96.050 Prohibition of marijuana cultivation.
Marijuana cultivation by any person, including primary caregivers and qualified patients, collectives, cooperatives or dispensaries, is prohibited in all zone districts within the city. (Ord. 16-02 §1(part), 2016).
17.96.060 Consumption of medical marijuana.
No on-site consumption of medical marijuana shall occur except by a qualified patient or person with an identification card who lives on the property as their principal place of residence. (Ord. 16-02 §1(part), 2016).
17.96.070 Dispensary as a prohibited use.
A dispensary is a prohibited use in all zone districts in the city. (Ord. 16-02 §1(part), 2016).
17.96.080 Public nuisance declared.
Any use or condition caused or permitted to exist within any zone district of the city in violation of the provisions of this chapter is hereby declared a public nuisance. The city will avail itself of all available legal remedies to abate the nuisance. (Ord. 16-02 §1(part), 2016).
17.96.090 Violation and penalty.
A. A violation of this chapter may be prosecuted by the city attorney through the civil enforcement process, including injunctive relief, as set forth in this code and state law.
B. Each day a person is in violation of this chapter shall be considered a separate violation.
C. The administrative citation penalty for each and every marijuana plant cultivated in violation of this chapter shall be one thousand dollars per plant.
D. Any property upon which a violation of this chapter is found shall be subject to immediate abatement by the city.
E. In addition to any administrative penalty assessed for violation of this chapter, any person found in violation of this chapter will be charged abatement costs and enforcement costs as defined in this code, calculated to recover the total costs incurred by the city in enforcing this chapter. (Ord. 16-02 §1(part), 2016).
17.96.100 Severance.
If any section, subsection, phrase, or clause of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this chapter. (Ord. 16-02 §1(part), 2016).