Central California Counties

CENTRAL CALIFORNIA

San Mateo:

 


Contra Costa:

 


Alameda:

January 6, 2016

The Honorable Board of Supervisors County Administration Building

1221 Oak Street Oakland, CA 94612

Dear Board Members:

Subject: ADOPT AN ORDINANCE ADDING CHAPTER 6.106 TO THE GENERAL ORDINANCE CODE RELATED TO THE PROHIBITION OF MEDICAL MARIJUANA CULTIVATION AND DELIVERY. RECOMMENDATION:

It is recommended that your Board give first and second readings and adopt an ordinance adding Chapter 6.106 to the General Ordinance Code related to the prohibition of medical marijuana cultivation and delivery in unincorporated Alameda County. DISCUSSION/SUMMARY: During the Board Transportation and Planning Committee meeting on December 9, 2015, the Committee heard a presentation regarding recent developments in California medical marijuana law, focused on the newly enacted Medical Marijuana Regulation and Safety Act (MMRSA). At the conclusion of the presentation, the Committee directed staff to draft an ordinance prohibiting the cultivation and delivery of medical marijuana in the unincorporated area of the County for consideration by the full Board. The primary intent of the ordinance is to preserve the County’s authority to regulate and license medical marijuana cultivation under the MMRSA by having a local ordinance regulating or prohibiting the cultivation of marijuana in place before March 1, 2016. The MMRSA creates a comprehensive state scheme for the licensure and regulation of medical marijuana cultivation, manufacturing, transporting, testing, delivery, and dispensing. It establishes a dual licensing structure requiring a state license and a local license or permit for persons to conduct commercial cannabis activity in the local jurisdiction. Local authority over licensing, zoning, and public safety is expressly preserved. The MMRSA defines the “delivery” of medical cannabis as the commercial transfer from a dispensary to a primary caregiver, qualified patient, or testing laboratory. A dispensary, by definition, is a retail sales establishment, “including an establishment that delivers, pursuant to express authorization by local ordinance, medical cannabis and medical cannabis products as part of a retail sale.” Only a dispensary may deliver medical cannabis to the end user of the product, and then only when expressly authorized by local ordinance. (The term “distribution” is used for the transfer between licensed entities, such as the transport from the manufacturer to the dispensary.) Alameda County General Code section 6.108.180 requires dispensary permit holders to “at all times comply with Section 11326.5 et seq. of the California Health and Safety Code and [chapter 6.108) in the operations of the dispensary. This includes the prohibition of sales, transportation and delivery of medical marijuana off the site of the dispensary premises.” Similarly, General Code section 6.110.020 does not allow the public to possess, use, or transport cannabis if such acts are not authorized by the Compassionate Use Act (Health and Safety Code section 11362.5). However, the General Code does not define the terms “dispensary”, “delivery”, and “medical cannabis” and it includes a definition of “cannabis” that is more narrow than the definition in the MMRSA. For clarity it is recommended that the General Code be amended to prohibit delivery, as more broadly defined in the MMRSA, of medical marijuana and that the prohibition on cultivation and delivery use the MMRSA’s more expansive definitions of cannabis and medical cannabis. The MMRSA prohibits cultivation of medical marijuana without both a state license and a “license, permit, or other entitlement” from the city or county where the cultivation will occur. An application for a state license may not be submitted (1) without having first received the local license, permit, or other entitlement for use; or (2) if the proposal for the state license will violate the provisions of a local ordinance or regulation; or (3) if medical marijuana is prohibited in the applicable local jurisdiction, “either expressly or otherwise under principles of permissive zoning.” A permissive zoning code is one in which any use that is not enumerated or listed in the zoning code is presumed to be prohibited. The Alameda County Zoning Ordinance is a permissive zoning code. The cultivation of marijuana is not enumerated as an allowed use in our Zoning Ordinance, making it a prohibited activity in the unincorporated area. There is conflicting language in the new cultivation code provisions (Health and Safety Code section 111362. 777) of the MMRSA. Despite statements that local governments will be allowed to issue or deny cultivation permits in “current or future land use regulations or ordinances,” other subdivisions of the statute provide that if a county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana before March 1, 2016, or chooses not to administer a conditional permit program, then the state will be the sole licensing authority for medical marijuana cultivation applicants in that city or county. While we consider our Zoning Ordinance to function as a prohibition on cultivation under the principles of permissive zoning, there is no statute or case law recognizing that it operates as such. Given the inconsistent language in the statute, we recommend amending the General Code to clarify that cultivating marijuana is prohibited in the unincorporated areas of the county until a local cultivation permit program and zoning regulations, should either be desired, are adopted. To adopt an ordinance addressing the delivery and cultivation issues, that will be effective before March 1, 2016 (following the 30-day publication period), second reading must occur no later than January 24, 2016.

Donna R. Ziegler

County Counsel

 

REVI.SED  January 26, 2016

ORDINANCE NO. 2016-_6 __

AN ORDINANCE OF THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY ADDING CHAPTER 6.106 TO THE GENERAL ORDINANCE CODE RELATED TO THE PROHIBITION OF MEDICAL MARIJUANA CULTIVATION AND DELIVERY WHEREAS, in 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5 and titled the “Compassionate Use Act of 1996”); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to be able to obtain and use it without fear of criminal prosecution under limited, specified circumstances; and WHEREAS, in 2004, Senate Bill 420 was enacted (codified as California Health and Safety Code section 11362. 7 et seq. and titled the “Medical Marijuana Program Act”) to clarify the scope of the Compassionate Use Act of 1996. The Medical Marijuana Program Act allows counties to adopt and enforce rules and regulations consistent with its provisions; and WHEREAS, in 2011 , Assembly Bill 2650 was enacted (codified as California Health and Safety Code section 11362. 768). This law affirms that counties can adopt ordinances that restrict the location and establishment of medical marijuana collectives and cooperatives; and WHEREAS, in 2015, Assembly Bills 243 and 266 and Senate Bill 643 were enacted (codified as California Business and Professions Code section 19300 et seq. and titled the “Medical Marijuana Regulation and Safety Act”). These bills also amended provisions of the Medical Marijuana Program Act related to the cultivation of medical marijuana; arid WHEREAS, pursuant to California Business and Professions Code section 19315(a), nothing in the Medical Marijuana Regulation and Safety Act shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements; and WHEREAS, this Ordinance is enacted, consistent with the Compassionate Use Act of 1996, the Medical Marijuana Program Act, and the Medical Marijuana Regulation and Safety Act to protect the public health, safety, and welfare of Alameda County residents in relation to the cultivation and delivery of medical marijuana; and WHEREAS, in Marat v. City of Live Oaf< (2013) 221 Cal.App.4th 975, the court held that neither the Compassionate Use Act nor the Medical Marijuana Program Act preempt a local jurisdiction’s police power to prohibit the cultivation of marijuana within its jurisdiction; and WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court concluded that nothing in the Compassionate Use Act nor the Medical Marijuana Program Act preclude a local jurisdiction from regulating or prohibiting facilities that distribute medical marijuana; and 1 WHEREAS, although banned in Alameda County under the principles of permissive zoning, it is believed that the cultivation of ~edical marijuana has been occurring in the unincorporated area of Alameda County; and WHEREAS, marijuana cultivation has been shown to involve avoidance of environmental laws and regulations and resulted in the pollution of waters and navigable waterways in the State of California. Unregulated marijuana cultivation can be harmful to the welfare of the surrounding community and its residents and constitute a public nuisance; and WHEREAS, absent appropriate regulation, marijuana cultivation and delivery in the unincorporated area of Alameda County poses a potential threat to the public peace, health, and safety; and WHEREAS, the County of Alameda intends to proceed with a study and public meetings to consider a revised ordinance that most effectively regulates and licenses all facets of medical marijuana activities; and WHEREAS, the County of Alameda has a compelling interest in protecting the public health, safety, and welfare of its citizens, residents, visitors and businesses, in preserving the peace and quiet of the neighborhoods within the unincorporated areas of the County by prohibiting the cultivation and delivery of medical marijuana until a comprehensive study is conducted and regulations adopted; and WHEREAS, this Ordinance is reflective of existing law and intended to clarify the County of Alameda’s position with regard to the cultivation and delivery of medical marijuana; and WHEREAS, nothing in this Ordinance shall be deemed to conflict with federal law as contained in the Controlled Substances .Act, 21 U.S. C. § 841 or to license any activity that is prohibited under said Act except as mandated by State law; and WHEREAS, nothing in this Ordinance shall be construed to: (1) allow persons to engage in conduct that endangers others or causes a public nuisance; (2) allow the use of marijuana for non-medical purposes; or (3) allow any activity relating to the cultivation, distribution, or consumption of marijuana that is illegal under state or federal law; NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF ALAMEDA THAT: SECTION 1. Chapter 6.106 of the Alameda County Ordinance Code is added to the General Ordinance Code to read as follows: 6.106.010 Purpose and intent. It is the purpose and intent of this Chapter to reflect existing law in the County of Alameda, clarifying and expressly prohibiting the cultivation and delivery of medical marijuana in order to 2 protect the environment and preserve the public peace, health, safety, and general welfare of the citizens and residents of, and travel.ers through, the County of Alameda. 6.106~020 Relationship to other laws. This Chapter is not intended to apply 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,· state, and county enactments and in furtherance of the public purposes which those enactmer:its express. ·The provisions of this Chapter will supersede any other provisions of this Code found to be in conflict. 6.106.030 Definitions. For purposes of this Chapter, these words and phrases shall be defined as follows: A. “Caregiver” or “primary caregiver” shall have the same definition as set forth in California Health and Safety Code section 11362.?(d) as it now reads or as amended. B. “Cultiyate” or “cultivation”· shall have the same definition as set forth in California Business and Professions Code section 19300.5(1) as it now reads or as amended. C. “Delivery” shall have the same definition as set forth in California Business and Professions Code section 19300.S(m) as it now reads or as amended and shall include the commercial transfer of medical cannabis or medical cannabis products from a dispensary, up to an amount determined by the bureau to a primary caregiver or qualified patient as defined in Section 11362. 7 of the Health and Safety Code, or a testing laboratory. D. “Dispensary” shall have the same definition as set forth in California Business and Professions Code section 19300.S(n) as it now reads or as amended, and shall include those facilities regulated by Chapter 6.108 of this Code. E. “Marijuana” shall have the same definition as “cannabis” as set forth in California Business and Professions Code section 19300.S(f) as it now reads or as amended. F. “Medical marijuana” shall have the same definition as “medical cannabis” and “medical cannabis product” as set forth in California Business and Professions Code section 19300.S(ag) as it now reads or as amended. G. “Qualified patient” shall have the same definition as set forth in California Health and Safety Code section 11362. 7 (f) as it now reads or as amended. 6.106.040 Medical marijuana cultivation and delivery prohibited. A. The cultivation and delivery of medical marijuana are prohibited in all areas of 3 unincorporated Alameda County. This prohibition includes, but is not limited to: 1. Cultivation of marijuana, either indoors or outdoors. 2. Operation of a marijuana nursery, as defined by California Business and Professions Code section 19300.5(ah) as it now reads or as amended. 3. Medical marijuana manufacturing sites, as defined by California Business and Professions Code section 19300.5(af) as it now reads or as amended. B. Notwithstanding Subsection A, nothing in this Chapter shall prohibit: 1. The carriage of medical cannabis or medical cannabis products on public roads by licensees acting in compliance with California Business and Professions Code section 19340 and any adopted state and local regulations. 2. Licensed transporters operating in compliance with California Business and Professions Code sections 19337 and 19338 and any adopted state and local regulations. 6.106.050 Enforcement. A The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. B. Violations of this Chapter are subject to a civil action brought by the district attorney or the county counsel, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1 ,000) per violation. C. Any violation of this Chapter is hereby declared to be a misdemeanor. Violations of this Chapter may, in the discretion of the district attorney, be prosecuted as infractions or misdemeanors. Notwithstanding this declaration, consistent with the holding in Kirby v. County of Fresno (2015) 242 Cal.App.41 h 940, neither a qualified patient nor a primary caregiver who cultivates or delivers marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician shall be subject to arrest or criminal prosecution for a violation of this Chapter as a misdemeanor. D. Violations of this Chapter are hereby declared to be public nuisances and may be enforced pursuant to the procedure in chapter 6.65 of this Code. E. Any person that violates this chapter shall be guilty of a separate offense for each and every day during any portion of which such person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly. F. In addition to other remedies provided by this chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the planning director or his designee, including, for example, administrative or judicial nuisance abatement proceedings, civil or 4 criminal code enforcement proceedings, and suits for injunctive relief. 6.106.060 Severability. If any clause, sentence, paragraph, subdivision, section or part of this Chapter or the application thereof is for any reason held to be unconstitutional by any final court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Chapter. SECTION 2. This Ordinance shall be repealed by its own terms upon the adoption of state legislation repealing or eliminating the March 1, 2016 deadline in Health and Safety Code section 11362.777(c)(4). SECTION 3. This ordinance shall take effect and be in force thirty (30) days from and after the date of passage. Before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the County of Alameda.

Adopted by the Board of Supervisors of the County of Alameda, State of California, on January “lJe, 2016, by the following called vote:

AYES:supervisors Carson, Chan, Miley, Valle & President Haggerty NOES: None EXCUSED: None

 

The Honorable Board of Supervisors County Administration Building

1221 Oak Street Oakland, CA 94612

 

Dear Board Members:

Subject: ADOPT AN ORDINANCE ADDING CHAPTER 6.106 TO THE GENERAL ORDINANCE CODE RELATED TO THE PROHIBITION OF MEDICAL MARIJUANA CULTIVATION AND DELIVERY.

RECOMMENDATION: It is recommended that your Board give first and second readings and adopt an ordinance adding Chapter 6.106 to the General Ordinance Code related to the prohibition of medical marijuana cultivation and delivery in unincorporated Alameda County. DISCUSSION/SUMMARY: During the Board Transportation and Planning Committee meeting on December 9, 2015, the Committee heard a presentation regarding recent developments in California medical marijuana law, focused on the newly enacted Medical Marijuana Regulation and Safety Act (MMRSA). At the conclusion of the presentation, the Committee directed staff to draft an ordinance prohibiting the cultivation and delivery of medical marijuana in the unincorporated area of the County for consideration by the full Board. The primary intent of the ordinance is to preserve the County’s authority to regulate and license medical marijuana cultivation under the MMRSA by having a local ordinance regulating or prohibiting the cultivation of marijuana in place before March 1, 2016. The MMRSA creates a comprehensive state scheme for the licensure and regulation of medical marijuana cultivation, manufacturing, transporting, testing, delivery, and dispensing. It establishes a dual licensing structure requiring a state license and a local license or permit for persons to conduct commercial cannabis activity in the local jurisdiction. Local authority over licensing, zoning, and public safety is expressly preserved. The MMRSA defines the “delivery” of medical cannabis as the commercial transfer from a dispensary to a primary caregiver, qualified patient, or testing laboratory. A dispensary, by definition, is a retail sales establishment, “including an establishment that delivers, pursuant to express authorization by local ordinance, medical cannabis and medical cannabis products as part of a retail sale.” Only a dispensary may deliver medical cannabis to the end user of the product, and then only when expressly authorized by local ordinance. (The term “distribution” is used for the transfer between licensed entities, such as the transport from the manufacturer to the dispensary.)

Alameda County General Code section 6.108.180 requires dispensary permit holders to “at all times comply with Section 11326.5 et seq. of the California Health and Safety Code and [chapter 6.108) in the operations of the dispensary. This includes the prohibition of sales, transportation and delivery of medical marijuana off the site of the dispensary premises.” Similarly, General Code section 6.110.020 does not allow the public to possess, use, or transport cannabis if such acts are not authorized by the Compassionate Use Act (Health and Safety Code section 11362.5). However, the General Code does not define the terms “dispensary”, “delivery”, and “medical cannabis” and it includes a definition of “cannabis” that is more narrow than the definition in the MMRSA. For clarity it is recommended that the General Code be amended to prohibit delivery, as more broadly defined in the MMRSA, of medical marijuana and that the prohibition on cultivation and delivery use the MMRSA’s more expansive definitions of cannabis and medical cannabis. The MMRSA prohibits cultivation of medical marijuana without both a state license and a “license, permit, or other entitlement” from the city or county where the cultivation will occur. An application for a state license may not be submitted (1) without having first received the local license, permit, or other entitlement for use; or (2) if the proposal for the state license will violate the provisions of a local ordinance or regulation; or (3) if medical marijuana is prohibited in the applicable local jurisdiction, “either expressly or otherwise under principles of permissive zoning.” A permissive zoning code is one in which any use that is not enumerated or listed in the zoning code is presumed to be prohibited. The Alameda County Zoning Ordinance is a permissive zoning code. The cultivation of marijuana is not enumerated as an allowed use in our Zoning Ordinance, making it a prohibited activity in the unincorporated area. There is conflicting language in the new cultivation code provisions (Health and Safety Code section 111362. 777) of the MMRSA. Despite statements that local governments will be allowed to issue or deny cultivation permits in “current or future land use regulations or ordinances,” other subdivisions of the statute provide that if a county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana before March 1, 2016, or chooses not to administer a conditional permit program, then the state will be the sole licensing authority for medical marijuana cultivation applicants in that city or county. While we consider our Zoning Ordinance to function as a prohibition on cultivation under the principles of permissive zoning, there is no statute or case law recognizing that it operates as such. Given the inconsistent language in the statute, we recommend amending the General Code to clarify that cultivating marijuana is prohibited in the unincorporated areas of the county until a local cultivation permit program and zoning regulations, should either be desired, are adopted. To adopt an ordinance addressing the delivery and cultivation issues, that will be effective before March 1, 2016 (following the 30-day publication period), second reading must occur no later than January 24, 2016. Donna R. Ziegler County Counsel

REVI.SED JAnuary 26, 2016 ORDINANCE NO. 2016-_6 __

AN ORDINANCE OF THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY ADDING CHAPTER 6.106 TO THE GENERAL ORDINANCE CODE RELATED TO THE PROHIBITION OF MEDICAL MARIJUANA CULTIVATION AND DELIVERY WHEREAS, in 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5 and titled the “Compassionate Use Act of 1996”); and WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to be able to obtain and use it without fear of criminal prosecution under limited, specified circumstances; and WHEREAS, in 2004, Senate Bill 420 was enacted (codified as California Health and Safety Code section 11362. 7 et seq. and titled the “Medical Marijuana Program Act”) to clarify the scope of the Compassionate Use Act of 1996. The Medical Marijuana Program Act allows counties to adopt and enforce rules and regulations consistent with its provisions; and WHEREAS, in 2011 , Assembly Bill 2650 was enacted (codified as California Health and Safety Code section 11362. 768). This law affirms that counties can adopt ordinances that restrict the location and establishment of medical marijuana collectives and cooperatives; and WHEREAS, in 2015, Assembly Bills 243 and 266 and Senate Bill 643 were enacted (codified as California Business and Professions Code section 19300 et seq. and titled the “Medical Marijuana Regulation and Safety Act”). These bills also amended provisions of the Medical Marijuana Program Act related to the cultivation of medical marijuana; arid WHEREAS, pursuant to California Business and Professions Code section 19315(a), nothing in the Medical Marijuana Regulation and Safety Act shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements; and WHEREAS, this Ordinance is enacted, consistent with the Compassionate Use Act of 1996, the Medical Marijuana Program Act, and the Medical Marijuana Regulation and Safety Act to protect the public health, safety, and welfare of Alameda County residents in relation to the cultivation and delivery of medical marijuana; and WHEREAS, in Marat v. City of Live Oaf< (2013) 221 Cal.App.4th 975, the court held that neither the Compassionate Use Act nor the Medical Marijuana Program Act preempt a local jurisdiction’s police power to prohibit the cultivation of marijuana within its jurisdiction; and WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court concluded that nothing in the Compassionate Use Act nor the Medical Marijuana Program Act preclude a local jurisdiction from regulating or prohibiting facilities that distribute medical marijuana; and 1 WHEREAS, although banned in Alameda County under the principles of permissive zoning, it is believed that the cultivation of ~edical marijuana has been occurring in the unincorporated area of Alameda County; and WHEREAS, marijuana cultivation has been shown to involve avoidance of environmental laws and regulations and resulted in the pollution of waters and navigable waterways in the State of California. Unregulated marijuana cultivation can be harmful to the welfare of the surrounding community and its residents and constitute a public nuisance; and WHEREAS, absent appropriate regulation, marijuana cultivation and delivery in the unincorporated area of Alameda County poses a potential threat to the public peace, health, and safety; and WHEREAS, the County of Alameda intends to proceed with a study and public meetings to consider a revised ordinance that most effectively regulates and licenses all facets of medical marijuana activities; and WHEREAS, the County of Alameda has a compelling interest in protecting the public health, safety, and welfare of its citizens, residents, visitors and businesses, in preserving the peace and quiet of the neighborhoods within the unincorporated areas of the County by prohibiting the cultivation and delivery of medical marijuana until a comprehensive study is conducted and regulations adopted; and WHEREAS, this Ordinance is reflective of existing law and intended to clarify the County of Alameda’s position with regard to the cultivation and delivery of medical marijuana; and WHEREAS, nothing in this Ordinance shall be deemed to conflict with federal law as contained in the Controlled Substances .Act, 21 U.S. C. § 841 or to license any activity that is prohibited under said Act except as mandated by State law; and WHEREAS, nothing in this Ordinance shall be construed to: (1) allow persons to engage in conduct that endangers others or causes a public nuisance; (2) allow the use of marijuana for non-medical purposes; or (3) allow any activity relating to the cultivation, distribution, or consumption of marijuana that is illegal under state or federal law; NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF ALAMEDA THAT: SECTION 1. Chapter 6.106 of the Alameda County Ordinance Code is added to the General Ordinance Code to read as follows: 6.106.010 Purpose and intent. It is the purpose and intent of this Chapter to reflect existing law in the County of Alameda, clarifying and expressly prohibiting the cultivation and delivery of medical marijuana in order to 2 protect the environment and preserve the public peace, health, safety, and general welfare of the citizens and residents of, and travel.ers through, the County of Alameda. 6.106~020 Relationship to other laws. This Chapter is not intended to apply 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,· state, and county enactments and in furtherance of the public purposes which those enactmer:its express. ·The provisions of this Chapter will supersede any other provisions of this Code found to be in conflict. 6.106.030 Definitions. For purposes of this Chapter, these words and phrases shall be defined as follows: A. “Caregiver” or “primary caregiver” shall have the same definition as set forth in California Health and Safety Code section 11362.?(d) as it now reads or as amended. B. “Cultiyate” or “cultivation”· shall have the same definition as set forth in California Business and Professions Code section 19300.5(1) as it now reads or as amended. C. “Delivery” shall have the same definition as set forth in California Business and Professions Code section 19300.S(m) as it now reads or as amended and shall include the commercial transfer of medical cannabis or medical cannabis products from a dispensary, up to an amount determined by the bureau to a primary caregiver or qualified patient as defined in Section 11362. 7 of the Health and Safety Code, or a testing laboratory. D. “Dispensary” shall have the same definition as set forth in California Business and Professions Code section 19300.S(n) as it now reads or as amended, and shall include those facilities regulated by Chapter 6.108 of this Code. E. “Marijuana” shall have the same definition as “cannabis” as set forth in California Business and Professions Code section 19300.S(f) as it now reads or as amended. F. “Medical marijuana” shall have the same definition as “medical cannabis” and “medical cannabis product” as set forth in California Business and Professions Code section 19300.S(ag) as it now reads or as amended. G. “Qualified patient” shall have the same definition as set forth in California Health and Safety Code section 11362. 7 (f) as it now reads or as amended. 6.106.040 Medical marijuana cultivation and delivery prohibited. A. The cultivation and delivery of medical marijuana are prohibited in all areas of 3 unincorporated Alameda County. This prohibition includes, but is not limited to: 1. Cultivation of marijuana, either indoors or outdoors. 2. Operation of a marijuana nursery, as defined by California Business and Professions Code section 19300.5(ah) as it now reads or as amended. 3. Medical marijuana manufacturing sites, as defined by California Business and Professions Code section 19300.5(af) as it now reads or as amended. B. Notwithstanding Subsection A, nothing in this Chapter shall prohibit: 1. The carriage of medical cannabis or medical cannabis products on public roads by licensees acting in compliance with California Business and Professions Code section 19340 and any adopted state and local regulations. 2. Licensed transporters operating in compliance with California Business and Professions Code sections 19337 and 19338 and any adopted state and local regulations. 6.106.050 Enforcement. A The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. B. Violations of this Chapter are subject to a civil action brought by the district attorney or the county counsel, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1 ,000) per violation. C. Any violation of this Chapter is hereby declared to be a misdemeanor. Violations of this Chapter may, in the discretion of the district attorney, be prosecuted as infractions or misdemeanors. Notwithstanding this declaration, consistent with the holding in Kirby v. County of Fresno (2015) 242 Cal.App.41 h 940, neither a qualified patient nor a primary caregiver who cultivates or delivers marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician shall be subject to arrest or criminal prosecution for a violation of this Chapter as a misdemeanor. D. Violations of this Chapter are hereby declared to be public nuisances and may be enforced pursuant to the procedure in chapter 6.65 of this Code. E. Any person that violates this chapter shall be guilty of a separate offense for each and every day during any portion of which such person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly. F. In addition to other remedies provided by this chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the planning director or his designee, including, for example, administrative or judicial nuisance abatement proceedings, civil or 4 criminal code enforcement proceedings, and suits for injunctive relief. 6.106.060 Severability. If any clause, sentence, paragraph, subdivision, section or part of this Chapter or the application thereof is for any reason held to be unconstitutional by any final court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Chapter. SECTION 2. This Ordinance shall be repealed by its own terms upon the adoption of state legislation repealing or eliminating the March 1, 2016 deadline in Health and Safety Code section 11362.777(c)(4). SECTION 3. This ordinance shall take effect and be in force thirty (30) days from and after the date of passage. Before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the County of Alameda. Adopted by the Board of Supervisors of the County of Alameda, State of California, on January “lJe, 2016, by the following called vote: AYES:supervisors Carson, Chan, Miley, Valle & President Haggerty NOES: None EXCUSED: None

Oakland: 

Oakland expands medical marijuana dispensaries, related businesses

By Erin Baldassari, ebaldassari@bayareanewsgroup.com

POSTED:   05/04/2016 03:22:10 AM PDT | UPDATED:   61 MIN. AGO

 

OAKLAND — The Oakland City Council voted unanimously early Wednesday morning to approve a new law expanding the number of medical marijuana dispensaries and related businesses operating in the city.

The policy — intended to bring the existing black market into the regulatory sunlight — covers everything from cultivation to finished product. It adds eight medical marijuana dispensary permits each year, and opens the door for 30 cultivators, 12 delivery businesses, five distributors, five transporters, two testing facilities, and 28 manufacturing businesses.

The expansion could mean big bucks for city coffers. Last year, the eight dispensaries already operating in the city generated roughly $4 million in taxes, said Greg Minor, an assistant to the city administrator. Double that figure and add in the potential for some 90 other businesses, and that’s a lot of possible new revenue for the city, though Minor shied away from putting a number on it.

Nearly all of the people who addressed the council during public comment lauded the city’s efforts at creating a robust regulatory framework that could serve as model for other California cities. But, many also blasted the inclusion of a late amendment, added at an April 26 public safety committee meeting, requiring that half of the business licenses be issued to applicants living within certain swaths of the city identified as having higher marijuana-related arrest rates.

Under the amendment, applicants who live in the neighborhoods would be required to maintain at least a 51 percent ownership in the business. A second amendment, added on Wednesday, also includes people who had previously been arrested in Oakland and incarcerated for marijuana-related offenses.

Councilmember Desley Brooks, who authored the change, said the amendment was aimed at increasing opportunities for people of color to secure a foothold in the burgeoning industry, as well as stem the impacts of drug laws that have historically criminalized communities of color, she said.

“When you look at the cannabis industry around the country, it is predominantly white,” Brooks said. “When you look at the cannabis industry here, with respect to ownership, it is predominantly white.”

But marijuana-related business owners criticized the amendment’s vague wording, arguing it will have unintended consequences that ultimately makes it more difficult for people of color to secure permits and operate legally. A black applicant could meet the equity objectives of the amendment, but not live within one of the neighborhoods identified, and therefore not qualify for the permit, for example.”While I agree with the overall objective, it is lacking in its intent to create true equity in ownership by those affected by the War on Drugs,” said Andrea Unsworth, owner of the delivery service Stashtwist. “Where are the owners, operators and founders of color? And why are you creating additional barriers for them to enter?”

Other speakers called for fewer limits on the number of licenses for small-scale growers and manufacturers operating out of their homes. The state legislature is considering adding a special classification for cottage-industry businesses as part of the Medical Marijuana Regulation and Safety Act that passed last year. Councilmember Rebecca Kaplan asked the staff to propose changes to the cottage-industry portion of the regulations after the state law passes.

In addition to the equity ownership provision, Kaplan said the law encourages environmental sustainability and incorporates local hire requirements.

“There’s a lot of really important work that’s been done,” Kaplan said. “And, we’ve accomplished some really important things.”

During the meeting, the council also voted to include an amendment to revisit the policy after one year, added marijuana-odor mitigation as a requirement for operation, and included “worker-cooperatives” under the list of allowed business types.

Following suggestions from Supernova Women, an advocacy organization formed by and for women of color in the cannabis industry, the council agreed to strengthen its local hire provision by adding fines and other consequences for noncompliance, as well as earmark resources for Oakland to lobby on behalf of local license holders with prior criminal records who may have more difficulty securing state approval.

Contact Erin Baldassari at 510-208-6428. Follow her at Twitter.com/e_baldi.

 


San Joaquin:

 


Calaveras:

April 12, 2016

ARTICLE 1.              GENERAL TERMS

 

17.95.100 Authority

The Calaveras County Board of Supervisors enacts this Chapter pursuant to authority granted by Article XI Section 7 of the California Constitution, Sections 25123(d), 25845 and 53069.4 of the California Government Code and Section 11362.83(c) of the California Health and Safety Code.

 

17.95.110 Purpose and Intent

A.              The purpose and intent of this Chapter is to quickly establish land use regulations concerning the cultivation, manufacture, testing, distribution, transportation, and storage of medical marijuanawithin the County of Calaveras in order to limit and control such activities in a manner that is 1) consistent with the policy preferences the Board of Supervisor’s described at the February 16, 2016 meeting, 2) consistent with MMRSA, 3) necessary to protect the public health, safety, and welfare of the residents of the County of Calaveras 4) designed to encourage medical cannabis cultivators to comply quickly with local land use regulations, and 5) designed to minimize the potential for significant additional impacts on the environment and unmitigated growth pending the adoption of an environmental impact report.

B.              The purpose and intent of this Chapter is also to reduce conditions that create public nuisances by enacting regulations including, without limitation, restrictions as to location, type, and size ofmarijuana cultivation sites, the location, type, and size  of commercial activities involving medical marijuana and the use of adequate screening, security, and other protective measures to more effectively control the adverse impacts associated with medical marijuana cultivation and commercial activities related to medical marijuana. 

C.              Nothing in this Chapter shall be construed to authorize any use, possession, cultivation, manufacture, transportation, or distribution of marijuana or marijuana products for non-medical purposes or that is in violation of law.

 

17.95.120 Findings

A.              The Federal Controlled Substances Act, 21 U.S.C. §§ 801 et seq., classifies marijuana 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 use under medical supervision.

B.              The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana.  The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes.

C.              In 1996, the voters of the State of California approved Proposition 215, “The Compassionate Use Act”, (codified as Health and Safety Code Section 11362.5), which was intended to decriminalize cultivation and possession of medical marijuana by a seriously ill patient, or the patient’s primary caregiver, for the patient’s personal use, and to create a limited defense to the crimes of possessing or cultivating marijuana.  The Act further provided that nothing in it shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, or to condone the diversion of marijuana for non-medical purposes.

D.              The State enacted SB 420 in 2004 (known as the “Medical Marijuana Program Act”, codified as Health and Safety Code Section 11362.7 et seq.) to expand and clarify the scope of The Compassionate Use Act of 1996 by creating the Medical Marijuana Identification Card program, creating reasonable regulations for cultivating, processing, transporting and administering marijuana, as well as limiting the amount of marijuana a qualified individual may possess.

E.              The Medical Marijuana Program Act defines a “primary caregiver” as an individual who is designated by a qualified patient or by a person with an identification card, and who has consistently assumed responsibility for the housing, health, or safety of that patient or person and is further defined in the California Supreme Court decision People v. Mentch (2008) 45 Cal.4th 274.

F.              The State enacted the Medical Marijuana Regulation and Safety Act (MMRSA) on September 11, 2015 (SB 643, AB 266, and AB 243), instituting a comprehensive state-level licensure and regulatory scheme for cultivation, manufacturing, distribution, transportation, laboratory testing, and dispensing of medical marijuana through numerous changes and additions to the Business & Professions Code and the Health and Safety Code.  MMRSA legalizes and regulates for-profit commercial activity related to medicalmarijuana in California.

G.              While Calaveras County has never adopted a local ordinance allowing or regulating medical cannabis cultivation within the County (or other medical cannabis activities besides dispensaries), there have been for many years several hundred unregulated cannabis cultivation sites within the County which were unlawful under principles of permissive zoning and County Code 17.04.010. The County has long had insufficient resources to bring code enforcement or nuisance actions against the vast majority of these cultivation sites.

H.              MMRSA contains provisions allowing counties and cities to adopt local regulations to further regulate or to ban medical cannabis activities within their jurisdictional boundaries.

I.              When MMRSA was originally enacted on January 1, 2016, it contained a provision requiring local governments to either adopt a local regulatory scheme for medical cannabis activities by March 1, 2016 or the State would become “the sole licensing authority” for these activities.

J.              Throughout the State of California, many cities and counties, including cities and counties surrounding Calaveras County, quickly adopted local urgency ordinances banning or severely restricting medical cannabis activities within their boundaries.

K.              On February 3, 2016, the Governor of California signed Assembly Bill 21, removing the March 1st deadline for counties and cities to develop their own regulatory schemes.

L.              On February 16, 2016, the Board of Supervisors, at an open public meeting, directed the County Counsel’s Office to bring forward an ordinance allowing but regulating medical cannabis cultivation and commercial uses involving medical cannabis within the jurisdictional boundaries of Calaveras County.  This ordinance will require the preparation of a programmatic environmental impact report before it can be adopted and implemented, and this process has the potential to take twelve months to complete.

M.              Meanwhile, in the wake of the Board of Supervisor’s February 16, 2016 directive to prepare an ordinance allowing medical cannabis cultivation, Calaveras County is experiencing a marked influx of people who are escaping the new regulatory bans of medical cannabis cultivation in neighboring jurisdictions, purchasing and leasing real estate within the County, and seeking to use these properties to cultivate medical cannabis in anticipation of the County’s new ordinance. There has also been a steep rise in land speculation by existing local growers who are buying inexpensive properties affected by the Butte Fire and seeking to move or expand their cultivation sites beyond the ones they have already created.  These trends may be contributing to an unstudied, unregulated, and potentially significant impact on the environment.

N.              The County’s geographic and climatic conditions, which include dense forested areas with adequate precipitation and mild winters, provide conditions that are favorable to outdoor marijuana cultivation, allowing growers to achieve a high per-plant yield.  The Federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams, or about one-half (1/2) pound, to 846 grams, or nearly two (2) pounds.

O.              MMRSA’s adoption of a comprehensive statewide licensing and enforcement scheme for medical cannabis operations will make it easier for local jurisdictions to regulate medical cannabis at the local level, and permit fees will help pay for additional enforcement staff. The local cannabis growing season typically begins in early spring, and local cultivators will be more incentivized to comply with a local regulatory scheme if they have not yet planted a crop in a manner that is inconsistent with these regulations.

P.              Children (minor under the age of 18) are particularly vulnerable to the effects of marijuana use and the presence of marijuana plants or products is an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children (including schools, parks, and other similar locations).

Q.              The unregulated cultivation of marijuana in the unincorporated area of Calaveras County can adversely affect the health, safety, and well-being of the County, its residents and environment.  Comprehensive civil regulation of premises used for marijuana cultivation, including zoning regulation, is proper and necessary to reduce the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation, and that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in densely populated areas.

R.              Comprehensive regulation of premises used for marijuana cultivation or commercial activities related to marijuana is proper and necessary to address the risks and adverse impacts as stated herein, that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place.

S.              Comprehensive regulation of commercial activities related to marijuana, including but not limited to the manufacture of marijuana products, distribution of marijuana, storage of marijuana, testing of marijuana, and commercial transport of marijuana, is proper and necessary to address the risks and adverse impacts associated with such activities, which include but are not limited to risks related to the concentration of large amounts of marijuana on a single premises, fire hazards, and toxin release hazards.

T.              Outdoor marijuana cultivation, especially within the foothills, is creating devastating impacts to California’s surface and groundwater resources.  The State Water Resources Control Board, the North Coast Regional Water Quality Control Board, the Central Valley Regional Water Quality Control Board and the Department of Fish and Wildlife have seen a dramatic increase in the number of marijuana gardens, and corresponding increases in impacts to water supply and water quality, including the discharge of sediments, pesticides, fertilizers, petroleum hydrocarbons, trash and human waste.  The sources of these impacts result from unpermitted and unregulated timber clearing, road development, stream diversion for irrigation, land grading, erosion of disturbed surfaces and stream banks, and temporary human occupancy without proper sanitary facilities.

U.              The immunities from certain prosecution provided to qualified patients and their primary caregivers under State law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance.  By adopting the regulations contained in this Chapter in coordination with MMRSA, the County is hoping to minimize the risks of and complaints regarding fire, odor, crime and pollution caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Calaveras County.

V.              Nothing in this Chapter shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under State law.  No provision of this Chapter shall be deemed a defense or immunity to any action brought against any person by the County of Calaveras, Calaveras County District Attorney, the Attorney General of State of California, or the United States of America.

W.              In Browne v. County of Tehama, 213 Cal. App. 4th 704 (2013), the California Court of Appeal stated that “Neither the Compassionate Use Act nor the Medical MarijuanaProgram grants . . . anyone . . . an unfettered right to cultivate marijuana for medical purposes.  Accordingly, the regulation of cultivation of medical marijuana does not conflict with either statute.”  Similarly, in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., 56 Cal. 4th 729 (2013), the California Supreme Court concurred that “Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land . . .” Additionally, inMaral v. City of Live Oak (2013), 221 Cal.App. 4th 975, 983, review denied 2014 Cal. LEXIS 2402 (March 26, 2014), the same Court of Appeal held that “there is no right-and certainly no constitutional right-to cultivate medical marijuana . . .”  The Court in Live Oak affirmed the ability of a local governmental entity to prohibit the cultivation of marijuanaunder its land use authority.

X.              California Business and Professions Code §19315 expressly states that the chapter added to the Business and Professions Code pursuant to the MMRSA shall not be interpreted “to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements”.

Y.              California Business and Professions Code §19316(a) expressly states, “Pursuant to Section 7 of Article XI of the California Constitution, a city, county, or city and county may adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity.  Any standards, requirements, and regulations regarding health and safety, testing, security, and worker protections established by the state shall be the minimum standards for all licensees statewide.”

Z.              California Business and Professions Code §19316(c) expressly states, “Nothing in this chapter, or any regulations promulgated thereunder, shall be deemed to limit the authority or remedies of a city, county, or city and county under any provision of law, including, but not limited to, Section 7 of Article XI of the California Constitution.

AA.              California Business and Professions Code §19320(d) expressly states that “local jurisdictions retain the power to assess fees and taxes, as applicable, on facilities that are licensed pursuant to this chapter and the business activities of those licenses”.

For more on Applicability, Interpretation, and General Terms


Alpine:

 


Santa Cruz:

 


Santa Clara:

 


Stanislaus:

 


Tuolumne:

 


Mono:

 

 


Monterey:

 


Merced:

The city of Merced appears to be on its way to having four medical cannabis dispensaries, but the future of cultivation remains uncertain.

During a special meeting Wednesday, April 20, 2016, the council gave staff direction for a new ordinance that would allow dispensaries in commercial office space and deliveries of medical cannabis in town.

The members took no official vote but the majority agreed on allowing four dispensaries, and permitting deliveries if they come from a certified dispensary.

Councilman Noah Lor said there should be no restrictions on the number of dispensaries, saying the city should promote healthy competition.

The council did not agree on the number of plants that should be allowed for patients to grow at home, ranging from zero up to 12 immature or six mature plants.

BY THADDEUS MILLER
Read more here: http://www.mercedsunstar.com/news/local/community/article73007037.html#storylink=cpy


Mariposa:

 


Medera:

 


Fresno:

 


Kings:

As of January 1, 2016, a ban on outdoor medical marijuana grows was enacted by Kings county in November 2011. It states, “Cultivation of medical marijuana is prohibited in all zones of the county, except for cultivation for personal medicinal use by a qualified patient within a secured, locked and fully enclosed structure on their personal residence.” Read King County’s medical marijuana ordinance. (Search for “marijuana”; it’s Article V.)


Tulare:

 


Inyo:

 

 

 

Advertisements

Create a free website or blog at WordPress.com.

Up ↑

%d bloggers like this: