Chapter 5.22
MARIJUANA*

Sections:

5.22.01    Purpose and intent.

5.22.02    Definitions.

5.22.03    Regulations applicable to the cultivation of medical marijuana.

5.22.04    Regulations applicable to the cultivation of recreational or adult use marijuana.

5.22.05    Regulations applicable to commercial cannabis operations, dispensaries, and deliveries.

5.22.06    Regulations applicable to the consumption of marijuana.

5.22.07    Penalties and enforcement.

5.22.08    Judicial review.

5.22.09    Commercial cannabis testing operations.

*    Code reviser’s note: Ordinance 05-40 adds the provisions of this chapter as Chapter 5.21. The provisions have been editorially renumbered to prevent duplication of numbering.

5.22.01 Purpose and intent.

It is the purpose and intent of this chapter to promote the health, safety, morals, and general welfare of the residents and businesses within the City by regulating the cultivation, processing, extraction, manufacturing, testing, distribution, transportation, sale, and consumption of marijuana, whether for medical purposes as currently allowed under State law, or for recreational use should recreational use become lawful under State law. (§ 2, Ord. 05-40, eff. January 5, 2006; § 2, Ord. 16-23, eff. November 2, 2016)

5.22.02 Definitions.

For purposes of this chapter, the following definitions shall apply:

(a)    “Act” means the Medicinal and Adult Use Cannabis Regulation and Safety Act (“MAUCRSA”), including implementing regulations, as the Act and implementing regulations may be amended from time to time. Definitions in this section referencing provisions of the Act shall also include amendments to the Act.

(b)    “Business” means a commercial cannabis operation allowed by this chapter.

(c)    “Business owner” means the owner(s) of the cannabis operation. For corporations and limited liability companies, “business owner” means the president, vice president, and any shareholder owning a ten percent (10%) or greater share of the corporation or company. For partnerships, “business owner” means all general partners and managing partners.

(d)    “Cannabis” or “marijuana” shall have the meaning set forth in California Business and Professions Code Section 26001, subdivision (f). “Cannabis” and “marijuana” may be used interchangeably, but shall have the same meaning.

(e)    “Cannabis dispensary” or “dispensary” means any facility or location, whether fixed or mobile, and any building or structure, where cannabis is made available to, distributed by, or distributed to more than two (2) persons.

(f)    “Cannabis products” means cannabis that has undergone a process whereby the plant material has been transformed into a concentrate, including, but not limited to, concentrated cannabis, or an edible or topical product containing cannabis or concentrated cannabis and other ingredients.

(g)    “City” means the City of Clovis.

(h)    “Collective or cooperative cultivation” means the association within California of qualified patients, persons with valid identification cards, and designated primary caregivers to cultivate marijuana for medical purposes as may be allowed under the Compassionate Use Act, the Medical Marijuana Program Act, or the California Medical Cannabis Regulation and Safety Act adopted on October 9, 2015, with legislative bills AB 243, AB 266, and SB 643.

(i)    “Commercial cannabis operation” means any commercial cannabis activity, and all facilities and equipment that support that activity, as set forth in California Business and Professions Code Section 26001, subdivision (k), and allowed under the Act, and as the Act and implementing regulations may be amended from time to time.

(j)    “Cultivate” or “cultivation” shall have the meaning set forth in California Business and Professions Code Section 26001, subdivision (l).

(k)    “Delivery” shall have the meaning set forth in California Business and Professions Code Section 26001, subdivision (p) and shall also include any technological platform that enables persons to arrange or facilitate the transfer of cannabis.

(l)    “Medical marijuana or medical marijuana use” means the use of cannabis for the purposes set forth in the Compassionate Use Act and the Medical Marijuana Program Act, California Health and Safety Code Sections 11362.5 and 11362.7 et seq.

(m)    “Operator” means the business owner and any other person designated by the business owner as responsible for the day-to-day cannabis operations.

(n)    “Police Chief” means the Police Chief of the City of Clovis or his or her designee.

(o)    “Premises” means the actual building(s), and/or designated units/suites, as well as any accessory structures, parking areas, or other immediate surroundings, and includes the entire parcel of property used in connection with the a commercial cannabis operation.

(p)    “Recreational marijuana,” “recreational marijuana use,” or “adult use marijuana” means all uses of cannabis not included within the definition of “medical marijuana use.”

(q)    “Responsible party” shall mean the business owner, operator, manager(s), and any employee having significant control over the commercial cannabis operations. (§ 2, Ord. 05-40, eff. January 5, 2006; § 1, Ord. 15-22, eff. December 9, 2015; § 2, Ord. 16-23, eff. November 2, 2016; § 1, Ord. 17-25, eff. December 13, 2017)

5.22.03 Regulations applicable to the cultivation of medical marijuana.

To the extent that the City is required to allow the cultivation of medical marijuana under State law, the rules set forth herein shall apply. Nothing in this section shall be interpreted to permit commercial marijuana operations or marijuana dispensaries otherwise prohibited by this chapter.

(a)    Personal use cultivation. An individual qualified patient or person with an identification card shall be allowed to cultivate medical marijuana within his/her private residence, in an attached garage, or in an accessory building if the property is detached single-family residential. A primary caregiver shall only cultivate medical marijuana at the residence of a qualified patient or person with an identification card for whom he/she is the primary caregiver. Medical marijuana cultivation for personal use shall be subject to the following requirements:

(1)    Area. The medical marijuana cultivation area shall not exceed thirty-two (32) square feet measured by the canopy and not exceed ten feet (10') in height per residence. This limit applies regardless of the number of qualified patients or persons with an identification card residing in the residence. The cultivation area shall be a single designated area.

(2)    Lighting. Medical marijuana cultivation lighting shall not exceed a total of one thousand two hundred (1,200) watts.

(3)    Building code requirements. Any alterations or additions to the residence, including garages and accessory buildings, shall be subject to applicable building and fire codes, including plumbing and electrical, and all applicable zoning codes, including lot coverage, setback, height requirements, and parking requirements.

(4)    Gas products. The use of gas products (CO2, butane, etc.) for medical marijuana cultivation or processing is prohibited.

(5)    Evidence of cultivation. From a public right-of-way or other public space there shall be no exterior evidence of medical marijuana cultivation occurring on the site.

(6)    Residence. The qualified patient or person with an identification card shall reside in the residence where the medical marijuana cultivation occurs.

(7)    Cultivation elsewhere in City. The qualified patient or person with an identification card shall not participate in medical marijuana cultivation in any other location within the City of Clovis.

(8)    Incidental use. The residence shall maintain kitchen, bathrooms, and primary bedrooms for their intended use and not be used primarily for medical marijuana cultivation.

(9)    Ventilation. The medical marijuana cultivation area shall include a ventilation and filtration system designed to ensure that odors from the cultivation are not detectable beyond the residence, or property line for detached single-family residential, and designed to prevent mold and moisture and otherwise protect the health and safety of persons residing in the residence and cultivating the marijuana. This shall include, at a minimum, a system meeting the requirements of the current, adopted edition of the California Building Code Section 1203.4, Natural Ventilation, or 402.3, Mechanical Ventilation (or its equivalent(s)).

(10)    Storage of chemicals. Any chemicals used for medical marijuana cultivation shall be stored outside of the habitable areas of the residence and outside of public view from neighboring properties and public rights-of-way.

(11)    Nuisance. The medical marijuana cultivation area shall: not adversely affect the health or safety of the nearby residents by creating dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration, or other impacts; and not be hazardous due to the use or storage of materials, processes, products or wastes, or from other actions related to the cultivation.

(12)    Property owner authorization. For rental property, the lessee shall obtain written authorization from the property owner or property management company to cultivate medical marijuana.

(13)    Notification. The owner and any lessee of the residence upon which cultivation will occur shall inform the Police Department of the intent to cultivate medical marijuana and pick up a handout setting forth the owner and lessee responsibilities under this section. This notification shall be provided prior to the commencement of the cultivation except that, for existing cultivation, the information shall be provided within ten (10) days of the effective date of this chapter. The Police Department may direct the owner and lessee to the Department of Planning and Development Services for more information about building code and permit requirements that may be applicable if alterations or additions to the residence are contemplated. The Police Department and Department of Planning and Development Services shall keep patient information confidential to the extent required by law.

(14)    Additional requirements for garages and accessory buildings. The following additional requirements shall apply for personal use cultivation that occurs in a garage or accessory building: the garage or accessory building shall be secure, locked, and fully enclosed, with a ceiling, roof or top, and entirely opaque. The garage or building shall include a burglar alarm monitored by an alarm company or private security company. The garage or building, including all walls, doors, and the roof, shall be constructed with a firewall assembly of green board meeting the minimum building code requirements for residential structures and include material strong enough to prevent entry except through an open door.

(15)    Posting of physician recommendation or identification card: Posting of owner permission. A copy of a qualified patient physician recommendation or identification card shall be posted in a conspicuous place in the cultivation area for each patient residing in the residence that is cultivating medical marijuana. For rental properties, a copy of the owner’s written authorization to cultivate marijuana shall be posted in the same manner.

(b)    Collective or cooperative cultivation. The collective or cooperative cultivation of medical marijuana shall be prohibited in the City. (§ 2, Ord. 05-40, eff. January 5, 2006; § 2, Ord. 12-08, eff. November 7, 2012; § 2, Ord. 16-23, eff. November 2, 2016)

5.22.04 Regulations applicable to the cultivation of recreational or adult use marijuana.

To the extent that the City is required to allow the cultivation of recreational or adult use marijuana under State law, the rules set forth herein shall apply. Nothing in this section shall be interpreted to permit commercial marijuana operations or marijuana dispensaries otherwise prohibited by this chapter.

(a)    State law limits. The cultivation of recreational or adult use marijuana shall be subject to the limits set forth in any applicable State law.

(b)    Compliance with medical marijuana personal use cultivation rules. All persons lawfully allowed to cultivate recreational or adult use marijuana under State law shall be subject to the same rules, requirements, and limitations applicable to the personal use cultivation of medical marijuana set forth in this chapter. (§ 2, Ord. 16-23, eff. November 2, 2016; § 2, Ord. 17-25, eff. December 13, 2017)

5.22.05 Regulations applicable to commercial cannabis operations, dispensaries, and deliveries.

(a)    Commercial cannabis operations. Except as provided for in Section 5.22.09, commercial cannabis operations as defined in Section 5.22.02(i) are prohibited within the City.

(b)    Dispensaries. Cannabis dispensaries as defined in Section 5.22.02(e) are prohibited within the City.

(c)    Deliveries. The delivery of cannabis as defined in Section 5.22.02(k) is prohibited in the City, except to and from cannabis testing facilities as permitted by Section 5.22.09, regardless of whether the delivery is initiated within or outside of the City, and regardless of whether a technology platform is used for delivery by the dispensary.

(d)    Exceptions to dispensary ban for certain healthcare facilities. The following facilities providing medical marijuana to patients are not subject to the dispensary ban provided they are in strict compliance with Health and Safety Code Sections 11362.5 and 11362.7 et seq., and all other State and local laws pertaining to the uses, including zoning, permitting, and licensing requirements:

•    A clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2 of the Health and Safety Code.

•    A health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.

•    A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2 of the Health and Safety Code.

•    A residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2 of the Health and Safety Code.

•    A residential hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code. (§ 2, Ord. 16-23, eff. November 2, 2016; § 3, Ord. 17-25, eff. December 13, 2017)

5.22.06 Regulations applicable to the consumption of marijuana.

No person shall smoke, ingest, or otherwise consume marijuana or marijuana products, whether recreational or medical, in the City of Clovis unless such smoking, ingesting or consumption occurs entirely within a private residence. “Within a private residence” shall mean inside habitable areas and shall not include garages, whether attached or detached, and other accessory buildings unless those buildings are at all times fully enclosed during the consumption.

Medical marijuana may also be consumed within a clinic, health care facility, residential care facility, or residential hospice licensed pursuant to applicable provisions of the California Health and Safety Code.

All consumption shall be done in a manner so as to not cause a nuisance to nearby residents with noxious odors or other adverse health and safety impacts. (§ 2, Ord. 16-23, eff. November 2, 2016)

5.22.07 Penalties and enforcement.*

Violations of this chapter for conduct that is not otherwise considered lawful under State law shall be considered misdemeanors and are punishable in accordance with Chapter 2 of Title 1. Each and every day, or portion thereof, a violation exists is a separate offense. The City may also pursue all applicable civil and administrative remedies, including but not limited to injunctive relief and administrative citations.

Should a court of competent jurisdiction subsequently determine that the criminal penalty provision renders this chapter unlawful, the City intends that the misdemeanor provision be severable from the remaining penalty provisions and the City will only pursue noncriminal remedies for violations of this chapter. (§ 2, Ord. 05-40, eff. January 5, 2006; § 2, Ord. 16-23, eff. November 2, 2016. Formerly 5.22.06)

*    Code reviser’s note: Ord. 16-23 lays this section out as 5.22.06. It has been editorially renumbered to avoid duplication of numbering.

5.22.08 Judicial review.

Judicial review of a decision made under this chapter may be had by filing a petition for a writ of mandate with the Superior Court in accordance with the provisions of the California Code of Civil Procedure Section 1094.5. Any such petition shall be filed within ninety (90) days after the day the decision becomes final as provided in California Code of Civil Procedure Section 1994.6, which shall be applicable for such actions. (§ 2, Ord. 05-40, eff. January 5, 2006; § 2, Ord. 16-23, eff. November 2, 2016. Formerly 5.22.07)

*    Code reviser’s note: Ord. 16-23 lays this section out as 5.22.07. It has been editorially renumbered to avoid duplication of numbering.

5.22.09 Commercial cannabis testing operations.

Notwithstanding the prohibition on commercial cannabis operations set forth in Section 5.22.05, commercial cannabis testing operations may be allowed in the City as set forth in this section.

(a)    Permitted uses. Businesses meeting the requirements of this section, and otherwise allowed by the applicable zoning, shall be allowed to conduct the following commercial cannabis operations in the City:

•    Testing as allowed by the Medicinal and Adult Use Cannabis Regulation and Safety Act.

(b)    Minimum operational requirements and restrictions. The following operational requirements and restrictions shall apply to commercial cannabis testing operations:

(1)    The business shall be an International Organization for Standardization ISO/IEC 17025:2005 certified lab. If the ISO standard is updated, the business shall meet the updated standard.

(2)    The business shall at all times be in compliance with the Act and the implementing regulations, as they may be amended from time to time, as well as all State license(s) required under the Act, and any other applicable State law. The business shall obtain all license(s) required under the Act prior to opening for business.

(3)    There shall be no signage or markings on the business premises or off site, which in any way evidence that a commercial cannabis operation is occurring on the property. Interior building signage is permissible provided the signage is not visible outside of the building.

(4)    No cannabis shall be smoked, ingested or otherwise consumed on the premises. Adequate signage of this prohibition shall be displayed throughout the facility.

(5)    Transportation shall only be conducted as permitted by State law.

(6)    There shall be no deliveries of cannabis or cannabis-containing products to or from the premises, except in connection with delivering cannabis products for testing.

(7)    The cultivation, manufacturing, extraction, processing or retail sale of cannabis is expressly prohibited.

(8)    There shall be no public access to the premises.

(9)    The business shall not allow anyone under twenty-one (21) years of age to handle cannabis or cannabis products.

(10)    The business shall comply with any distance separation requirements from schools as required by State law.

(11)    The business shall comply with all applicable building and fire codes relating to the commercial cannabis operation.

(12)    The business shall comply with all environmental laws and regulations pertaining to the commercial cannabis operation, including the storage, use and disposal of chemicals and waste product, and shall otherwise use best practices to avoid environmental harm.

(13)    The business shall provide a sufficient odor-absorbing ventilation and exhaust system, so that odor generated inside the facility that is distinctive to its commercial cannabis operation is not detected outside the premises, outside the building housing the commercial cannabis operation, or anywhere on adjacent property or public rights-of-way.

(14)    The business shall comply with any security measures required by the Police Chief reasonably relating to the commercial cannabis operation. Security measures may relate to controlled building access (exterior and interior), alarms, security lighting, security cameras, and delivery of cannabis products. The security measures shall be approved in writing by the Police Chief prior to commencing operations. The Police Chief may supplement these security requirements once operations begin.

(15)    Delivery vehicles shall not have any markings indicating that deliveries are being made to a cannabis operation. The transportation of cannabis samples to and from the premises shall be in unmarked vehicles with no indication that the vehicles are transporting cannabis samples and/or products.

(16)    The business shall make and maintain complete, accurate and legible records of the permitted commercial cannabis operation evidencing compliance with the requirements of this section. Those records shall be maintained for a minimum of five (5) years.

(17)    The commercial cannabis operation shall be open for inspection by any City law enforcement officer at any time the business is operating, at any other time upon responding to a call for service related to the property where the commercial cannabis operations is occurring, or otherwise upon reasonable notice.

(18)    In authorizing commercial cannabis testing operations under this section, the City makes no guarantees or promises as to the lawfulness of the approved activity under State or Federal law, and the business owner, operator and all responsible parties are obligated to comply with all applicable laws and regulations. To the fullest extent permitted by law, the City shall not assume any liability whatsoever with respect to the adoption of this chapter or the operation of any commercial cannabis operation approved pursuant to this chapter, or under State or Federal law. The business owner, operator and all responsible parties shall defend, hold harmless, release, and indemnify the City, its agents, officers, and employees from any liability associated with the approved use or adverse determinations made by the State or Federal government. An adverse determination could include cessation of operations. (§ 4, Ord. 17-25, eff. December 13, 2017)