Chapter 18. Marijuana Dispensaries, Cultivation, Processing, Usage, Sales, and Delivery

Sec. 4-18.01 Purpose and Intent.

It is the purpose and intent of this Chapter for the City Council to exercise its police powers derived from Section 7 of Article XI of the California Constitution and State law to promote the health, safety, and general welfare of the residents and businesses of the City of Hercules by regulating cannabis within the City’s jurisdictional limits, unless preempted by Federal or State law. The City Council finds that prohibitions on marijuana cultivation, marijuana processing, marijuana usage, marijuana sales, marijuana commercial delivery, and marijuana dispensaries are necessary for the preservation and protection of the public health, safety, and welfare of the City and its community, and that such local prohibitions are specifically authorized under State law pursuant to California Health and Safety Code Sections 11362.2 and 26200, and the Adult Use of Marijuana Act (“AUMA”), Section 3, “Purpose and Intent,” subsections (c) and (d).

Notwithstanding any provision of this Code to the contrary, any land use that cannot be conducted or carried out without being in violation of State or Federal law or this Code, expressly including, but not limited to, marijuana dispensaries, marijuana commercial deliveries, and marijuana cultivation, shall be prohibited in all planning areas and zoning districts within the City. (Ord. 504 § 1 (part), 2017: Ord. 492 § 3 (part), 2016)

Sec. 4-18.02 Definitions.

“Accessory structure” shall mean an enclosed structure either attached to and having a common wall with the main structure or may be freestanding enclosure, as defined in Section 35.210 of the Hercules Zoning Ordinance.

“Adult Use of Marijuana Act” or “AUMA” shall mean Proposition 64 now contained in Health and Safety Code Sections 11108 and 11362.

“Cannabis” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(f) as the same may be amended from time to time, and means any or all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin or separated resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, including marijuana infused in foodstuff or any other ingestible or consumable product containing marijuana.

“Caregiver” or “primary caregiver” shall have the same meaning as set forth in Health and Safety Code Section 11362.7 as the same may be amended from time to time.

“Commercial cannabis activity” shall have the same meaning as that set forth in Business and Professions Code Section 19300.5(k) as the same may be amended from time to time.

“Cooperative/collective” shall mean two (2) or more persons collectively or cooperatively cultivating, distributing, using, transporting, possessing, administering, delivering or making available medical marijuana, with or without compensation.

“Cultivation” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(l) as the same may be amended from time to time.

“Cultivation site” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(x) as the same may be amended from time to time.

“Delivery” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(m) as the same may be amended from time to time. “Delivery” shall not include the carriage of medical marijuana or medical marijuana products on public roads when otherwise in compliance with California Business and Professions Code Section 19340, and shall not include the noncommercial delivery of medical marijuana or medical marijuana products by primary caregivers as defined in California Health and Safety Code Section 11362.7.

“Dispensary” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(n) as the same may be amended from time to time. For purposes of this Chapter, “dispensary” shall also include a cooperative/collective.

“Dispensing” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(o) as the same may be amended from time to time.

“Distribution” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(p) as the same may be amended from time to time.

“Distributor” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(q) as the same may be amended from time to time.

“Manufacturer” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(y) as the same may be amended from time to time.

Marijuana. See “Cannabis.”

“Medical marijuana,” “medical marijuana product,” or “marijuana product” shall have the same meanings as set forth in Business and Professions Code Section 19300.5(ag) as the same may be amended from time to time and shall also include “medical marijuana” as such phrase is used in the August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, as may be amended from time to time, that was issued by the office of the Attorney General for the State of California or subject to the provisions of California Health and Safety Code Section 11362.5 (Compassionate Use Act of 1996) or California Health and Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana Program Act).

“Medical marijuana cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of any form of cannabis, regardless of whether there is an intent to produce, distribute, or sell the resulting product commercially.

“Medical marijuana dispensary” means any facility or location, whether fixed or mobile, where marijuana, marijuana products, or devices for the use of marijuana or marijuana products, either individually or in any combination, are offered, carried, transported, transmitted, manufactured, stored, placed, cultivated, sold, traded, exchanged, bartered, made available to and/or distributed, expressly including an establishment that delivers marijuana or marijuana products as part of a retail sale.

“Medical marijuana processing” means any method used to prepare marijuana or its byproduct for commercial retail and/or wholesale distribution, including but not limited to: drying, cleaning, curing, packaging, and extraction of active ingredients to create marijuana related products and concentrates.

“Medical Marijuana Regulation and Safety Act” or “MMRSA” shall mean the following bills signed into law on October 9, 2015, as the same may be amended from time to time: AB 243, AB 246, and SB 643.

“Nursery” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(ah) as the same may be amended from time to time.

“Qualifying patient” or “qualified patient” shall have the same meaning as set forth in Health and Safety Code Section 11362.7 as the same may be amended from time to time.

“Testing laboratory” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(z) as the same may be amended from time to time.

“Transport” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(am) as the same may be amended from time to time.

“Transporter” shall have the same meaning as set forth in Business and Professions Code Section 19300.5(aa) as the same may be amended from time to time. (Ord. 504 § 1 (part), 2017: Ord. 492 § 3 (part), 2016. Formerly 4-18.03)

Sec. 4-18.03 Prohibited Uses.

(a) Notwithstanding any provision of this Section or Chapter, no person shall transact, perform, engage in and carry on in the City any business, trade, profession, calling, use or occupation that cannot be, or is not, conducted or carried out without being in violation of State or Federal law, or this Code, and no license will be issued for any such business, trade, profession, calling, use, or occupation, including but not limited to a marijuana dispensary, marijuana commercial sales, marijuana delivery, or marijuana cultivation as defined in Section 4-18.02.

(b) Commercial and nonpersonal use marijuana activities of all types are expressly prohibited in all planning areas and zoning districts within the City. No person shall establish, operate, conduct or allow any commercial or nonpersonal use marijuana activity anywhere within the City.

(c) To the extent not already covered by subsection (b) of this Section, and except for the noncommercial delivery of medical marijuana or medical marijuana products by primary caregivers, all deliveries of medical or nonmedical marijuana are expressly prohibited within the City of Hercules. No person shall conduct any deliveries that either originate or terminate within the City.

(d) This Section is meant to prohibit all activities for which a State license is required. Accordingly, the City shall not issue any permit, license or other entitlement for any activity for which a State license is required under the Medical Marijuana Regulation and Safety Act (“MMRSA”) or the Adult Use of Marijuana Act (“AUMA”).

(e) Cultivation of marijuana for noncommercial purposes including, but not limited to, cultivation by a qualified patient or a primary caregiver is expressly prohibited in all zones, planned developments, and all specific and master plan areas in the City of Hercules, except in residential zones as described in Section 4-18.04.

(f) As specified by California Health and Safety Code Section 11362.3 the following are prohibited:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Business and Professions Code Section 26200.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited, pursuant to Business and Professions Code Section 11362.3(a)(2), and the City’s Smoking Ordinance, Chapter 5-6.

(3) Smoke marijuana or marijuana products within one thousand (1,000) feet of a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Business and Professions Code Section 26200 or Chapter 3.5 of Division 8 and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center.

(4) Possess an open container or open package 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.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest 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 in accordance with Business and Professions Code Section 26200 and while no persons under the age of twenty-one (21) years are present. (Ord. 504 § 1 (part), 2017: Ord. 492 § 3 (part), 2016. Formerly 4-18.02)

Sec. 4-18.04 Personal Marijuana Cultivation.

(a) Outdoor cultivation of marijuana is prohibited within the City limits of the City of Hercules.

(b) Indoor personal use cultivation of marijuana is authorized by Health and Safety Code Section 11362.1(a)(3), and in accordance with the following local requirements:

(1) A person twenty-one (21) years and older must plant, cultivate, harvest, dry, or process plants in accordance with this Chapter.

(2) The marijuana plants and anything produced by the plants must be kept within the person’s private residence, fully enclosed and secure, and not visible by normal unaided vision from a public place.

(3) Not more than six (6) living plants may be planted, cultivated, harvested, dried, or processed at one time, but outdoor cultivation, harvesting, or processing will continue to be prohibited at all times.

(4) A person engaging in indoor cultivation pursuant to this Section shall obtain written and signed consent of the property owner where the indoor cultivation of marijuana is located.

(5) The property used for indoor cultivation of marijuana shall be a residential unit located upon the grounds of a private residence that is fully enclosed and secure, and not visible by normal unaided vision from a public place.

(6) The property used for indoor cultivation of marijuana shall be locked and inaccessible to minors, and if inside an accessory structure to a private residence located upon the grounds of a private residence that it is fully enclosed, secure, and not visible by normal unaided vision from a public place. An accessory structure used for the cultivation of marijuana pursuant to California Health and Safety Code Section 11362.2(b)(2) must meet the permitting and setback requirements for accessory structures provided for in the Hercules Zoning Ordinance.

(7) Odors shall be contained on the property on which the cultivation is located. If the City receives complaints of odors, the City may cause the inspection and abatement of the nuisance pursuant to subsection (b)(10) of this Section, or any other remedy available at law.

(8) Generators or gas products used to power electrical or lighting fixtures or equipment for indoor cultivation shall be prohibited.

(9) Use of volatile solvents for indoor cultivation shall be prohibited, including, but not limited to: (a) explosive gases, such as butane, propane, xylene, styrene, gasoline, kerosene, O2 or H2; and (b) dangerous poisons, toxins, or carcinogens, such as methanol, isopropyl alcohol, methylene chloride, acetone, benzene, toluene, and trichloroethylene.

(10) A person engaging in indoor cultivation pursuant to this Section shall first provide a signed acknowledgment and consent form to the City of Hercules on a form prescribed by the City Manager confirming compliance with State law and the conditions contained in this Section, and granting the Building Inspector and/or Code Enforcement Officer access with twenty-four (24) hour notice upon receipt by the City of a complaint regarding the person’s cultivation activity. If the inspection is denied, an enforcement and/or abatement action shall be commenced to abate the nuisance conditions.

(11) The acknowledgment and consent form will expire after twelve (12) months and must be renewed annually if indoor personal use marijuana cultivation is to continue. (Ord. 504 § 1 (part), 2017)

Sec. 4-18.05 Penalties.

A person who violates this Chapter is subject to all abatement and civil penalty provisions of the Hercules Municipal Code, including but not limited to the public nuisance provisions of Chapter 4-10, and any and all applicable laws and regulations without limitation. In addition to any other administrative enforcement action authorized pursuant to the Hercules Municipal Code, the City Attorney may bring a civil action for injunctive relief and civil penalties against any person or entity that violates this Chapter. (Ord. 504 § 1 (part), 2017: Ord. 492 § 3 (part), 2016. Formerly 4-18.04)

Sec. 4-18.06 Public Nuisance.

Any use or condition caused, or permitted to exist, in violation of any provision of this Chapter shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the City pursuant to Code of Civil Procedure Section 731 or any other remedy available to the City. (Ord. 504 § 1 (part), 2017)

Sec. 4-18.07 Future Amendments and Preservation of Local Control.

The City expressly reserves the right to adopt and enforce local ordinances to regulate and control all local marijuana-related activities in a manner consistent with State law, including but not limited to regulation of use, possession, use for medical purposes, licensing, retail and distribution, cultivation, transportation, delivery, manufacturing, packaging, advertising, marketing, records keeping, fees, taxation, permits, and inspections. (Ord. 504 § 1 (part), 2017)