Chapter 8.28
MARIJUANA REGULATIONS
Sections:
8.28.040 Commercial marijuana activity is prohibited.
8.28.050 Regulations applicable to the cultivation of marijuana.
8.28.060 Regulations applicable to the personal use and/or consumption of marijuana.
8.28.070 Violation and penalty.
8.28.010 Findings.
A. In 1996, with the adoption of Proposition 215, the California voters approved the Compassionate Use Act (Health and Safety Code Section 11362.5) to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician, without fear of criminal prosecution under limited, specified circumstances.
B. In 2004, the State Legislature enacted SB 420 to clarify the scope of the Compassionate Use Act and provide additional statutory guidance regarding medical marijuana use. These statutes are codified at Health and Safety Code Section 11362.7 et seq. and allow cities and counties to adopt supplemental rules and regulations.
C. On October 9, 2015, almost twenty years after passage of the Compassionate Use Act, the Governor signed the Medical Marijuana Regulation and Safety Act ("Act"), comprised of California legislative bills AB 243, AB 266, and SB 643. The Act creates a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis, all subject to local control. One of the purposes of the Act is to ensure uniformity among jurisdictions that wished to allow commercial marijuana operations.
D. Pending before the votes on November 8, 2016, is the Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA"). The purpose of AUMA is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products. Adults, age twenty-one and older, will be allowed to possess marijuana and grow certain amounts at home for personal use.
E. On February 17, 2016, the city adopted Chapter 17.96, Marijuana Cultivation and Dispensaries Prohibited. That marijuana ordinance places a complete ban on marijuana cultivation, processing, deliveries, and dispensaries in the city based upon various health, safety and welfare and land use findings relating to marijuana cultivation, dispensing, and consumption, which findings are incorporated herein by reference.
F. The city of Kerman has identified a number of health, safety, and welfare concerns associated with marijuana activities. These concerns are set forth in the original reports accompanying the current marijuana ordinance and are incorporated herein by reference. These concerns continue and have been exemplified throughout Fresno County and the state as evidenced by numerous area agency police reports and news articles and stories. Some of the continued documented problems include offensive odors, trespassing, theft, violent encounters, fire hazards and problems associated with mold, fungus, and pests.
G. Under MMRSA, and AUMA if it passes, the city retains its police powers and land use authority to regulate or ban marijuana activities, including commercial marijuana operations, cultivation, distribution and consumption for the health, safety, and welfare of the citizens of Kerman. (Ord. 16-08 §1(part), 2016).
8.28.020 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. (Ord. 16-08 §1(part), 2016).
8.28.030 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. "Cannabis" shall have the same meaning as "marijuana" as defined in this section.
B. "City" shall mean the city of Kerman.
C. "Collective or cooperative cultivation" means the association within California of qualified patients, persons with valid identification cards, and designated primary care givers to cultivate marijuana for medical purposes as may be allowed under the Compassionate Use Act, the Medical Marijuana Program Act, or the California Medical Marijuana Regulation and Safety Act adopted on October 9, 2015, with legislative bills AB 243, AB 266, and SB 643 ("MMRSA").
D. "Commercial marijuana activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation, distribution, delivery, or sale of marijuana and marijuana products.
E. "Consumption of marijuana" shall mean smoking or ingesting marijuana or marijuana products.
F. "Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, trimming, or processing of marijuana.
G. "Delivery" shall be as defined in the MMRSA, California Business and Professions Code Section 19300.5(m), as that section may be amended from time to time, and includes the commercial transfer of medical marijuana and medical marijuana products from a dispensary as well as the use of any technology platform that enables qualified patients and caregivers to arrange for or facilitate the transfer.
H. "Distribution" means the procurement, sale, and transport of marijuana and marijuana products between entities for commercial use purposes.
I. "Licensee" means the holder of any state issued license related to marijuana activities, including but not limited to licenses issued under Division 10 of the Business and Professions Code, Section 26000 et seq.
J. "Limited home cultivation" means cultivation of up to six living marijuana plants, and possession of the marijuana produced by those plants, within the private residence of the person cultivating them or within an accessory structure to the person’s private residence on the same grounds.
K. "Marijuana" shall have the meaning set forth in the MMRSA Section 11018, which provides that:
"Marijuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
L. "Marijuana 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 persons.
M. "Marijuana 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.
N. "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 Regulation and Safety Act, California Health and Safety Code Sections 11362.5 and 11362.7 et seq.
O. "Private residence" means a house, an apartment unit, a mobile home, or other similar dwelling that is a "residential dwelling unit," as defined by the California Building Code (California Code Regulations Title 24, Section 202), that is fully enclosed and secured with a lock, and that is the primary residence of the person in possession.
P. "Recreational marijuana or recreational marijuana use" means all uses of marijuana not included within the definition of medical marijuana use.
Q. "Sale" includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuana products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of marijuana or marijuana products by a licensee to the licensee from whom such marijuana or marijuana product was purchased.
R. Any term defined in this section also means the very term as defined by the California Business and Professions Code or the California Health and Safety Code, unless otherwise specified. (Ord. 16-08 §1(part), 2016).
8.28.040 Commercial marijuana activity is prohibited.
Commercial marijuana cultivation, processing, delivery, dispensaries, sale and operations shall be prohibited activities in the city, except where the city is preempted by federal or state law from enacting a prohibition on any such activity. (Ord. 16-08 §1(part), 2016).
8.28.050 Regulations applicable to the cultivation of marijuana.
A. General. To the extent that the city is required to allow the cultivation of marijuana, whether for medical or recreational use, 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 or by the city code in Chapter 17.96. Only "limited home cultivation" as defined in this chapter shall be permissible in the city of Kerman. Collective, cooperative, or other cultivation of marijuana shall be prohibited in the city of Kerman.
B. Personal Use Cultivation. The cultivation of marijuana shall be subject to the limits set forth in any applicable state law. An individual who has a right to cultivate marijuana for personal use shall be allowed to cultivate up to six living marijuana plants within his/her private residence, in an attached garage, or in an accessory building if the property is detached single-family residential. No outdoor cultivation is allowed within the city. Marijuana cultivation for personal use shall be subject to the following requirements:
1. Area. The marijuana cultivation area shall not exceed thirty-two square feet measured by the canopy and not exceed ten feet in height per residence. This limit applies regardless of the number of individuals residing in the residence. The cultivation area shall be a single designated area.
2. Lighting. Marijuana cultivation lighting shall not exceed a total of one thousand two hundred 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 marijuana cultivation or processing is prohibited.
5. Evidence of Cultivation. From a public right of way, there shall be no exterior evidence of marijuana cultivation occurring on the site.
6. Residence. The qualified individual shall reside in the residence where the marijuana cultivation occurs.
7. Cultivation Elsewhere in City. The qualified individual shall not participate in marijuana cultivation in any other location within the city of Kerman.
8. Incidental Use. The residence shall maintain kitchen, bathrooms, and primary bedrooms for their intended use and not be used primarily for marijuana cultivation.
9. Ventilation. The 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 Section 402.3, Mechanical Ventilation (or its equivalent(s)).
10. Storage of Chemicals. Any chemicals used for 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 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 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 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. The police department may direct the owner and lessee to the building department and planning department 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 building department 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. (Ord. 16-08 §1(part), 2016).
8.28.060 Regulations applicable to the personal use and/or consumption of marijuana.
A. State Prohibitions. The state prohibitions in Health and Safety Code Section 11362.3 regarding smoking, ingesting, and possessing are incorporated by reference.
B. City Facilities. Possession, smoking, and consumption of marijuana whether for medical marijuana use or recreational use shall be prohibited in any building owned, leased, or occupied by the city. (Ord. 16-08 §1(part), 2016).
8.28.070 Violation and penalty.
Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor and subject to a maximum penalty of six months imprisonment in the County Jail or a fine of one thousand dollars, as well as the administrative penalties that may be set forth in this code. Violators shall be subject to any other enforcement remedies available to the city under any applicable state or federal statue or pursuant to any other lawful power the city may possess. (Ord. 16-08 §1(part), 2016).
8.28.080 Public nuisance.
Any violation of this chapter is hereby declared to be a public nuisance. The city may avail itself to all legal and equitable remedies to abate such public nuisance. (Ord. 16-08 §1(part), 2016).
8.28.090 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 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. (Ord. 16-08 §1(part), 2016).
8.28.100 Severability.
If any provision of this chapter is declared unlawful by a court of competent jurisdiction, the council intends that the remaining provisions of this chapter remain in effect. (Ord. 16-08 §1(part), 2016).