HomeMy WebLinkAbout2015-33 - Imposing an Express Ban on Marijuana Cultivation, Marijuana Processing, Marijuana Delivery, and Marijuana Dispensaries in the CityORDINANCE NO. 2015-33
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, IMPOSING AN
EXPRESS BAN ON MARIJUANA CULTIVATION,
MARIJUANA PROCESSING, MARIJUANA DELIVERY,
AND MARIJUANA DISPENSARIES IN THE CITY
WHEREAS, in 1996, the voters of the State of California approved Proposition
215 (codified as Health & Safety Code Section 11362.5 et seq. and entitled "The
Compassionate Use Act of 1996" referred to herein as the "CUA");
WHEREAS, the intent of the CUA was to enable seriously ill Californians to
legally possess, use, and cultivate marijuana for medical use under state law once a
physician has deemed the use beneficial to a patient's health;
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical
Marijuana Program ("MMP"), codified as Health and Safety Code Section 11362.7 et
seq., which permits qualified patients and their primary caregivers to associate
collectively or cooperatively to cultivate marijuana for medical purposes without being
subject to criminal prosecution under the California Penal Code;
WHEREAS, neither the CIIA nor the MMP require or impose an affirmative duty
or mandate upon a local government to allow, authorize, or sanction the establishment
of facilities that cultivate or process medical marijuana within its jurisdiction;
WHEREAS, in May 2013, the California Supreme Court issued its decision in
City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al.,
holding that cities have the authority to ban medical marijuana land uses;
WHEREAS, under the Federal Controlled Substances Act, codified in 21 U.S.C.
Section 801 et seg., the use, possession, and cultivation of marijuana are unlawful and
subject to federal prosecution without regard to a claimed medical need;
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical
Marijuana Regulation and Safety Act" (" Act"), which is comprised of the state legislative
bills known as AB 243, AB 266, and SB 643, into law;
WHEREAS, the Act becomes effective January 1, 2016 and contains provisions
that govern the cultivating, processing, transporting, testing, and distributing of medical
cannabis to qualified patients. The Act also contains new statutory provisions that:
• Allow local governments to enact ordinances expressing
their intent to prohibit the cultivation of marijuana and their intent
not to administer a conditional permit program pursuant to Health &
Safety Code Section 11362.777 for the cultivation of marijuana
(Health & Safety Code § 11362.777(c)(4));
Ordinance No. 2015-33
Page 2 of 8
• Expressly provide that the Act does not supersede or limit
local authority for local law enforcement activity, enforcement of
local ordinances, or enforcement of local permit or licensing
requirements regarding marijuana (Business & Professions Code §
19315(a));
• Expressly provide that the Act does not limit the authority or
remedies of a local government under any provision of law
regarding marijuana, including but not limited to a local
government's right to make and enforce within its limits all police
regulations not in conflict with general laws (Business &
Professions Code § 19316(c)); and
L• Require a local government that wishes to prevent marijuana
ivery activity, as defined in Business & Professions Code section
19300.5(m) of the Act, from operating within the local government's
boundaries to enact an ordinance affirmatively banning such
delivery activity (Business & Professions Code § 19340(a));
WHEREAS, several California cities have reported negative impacts of marijuana
cultivation, processing and distribution activities, including offensive odors, illegal sales
and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts,
fire hazards, and problems associated with mold, fungus, and pests;
WHEREAS, marijuana plants, as they begin to flower and for a period of two
months or more, produce a strong odor, offensive to many people, and detectable far
beyond property boundaries if grown outdoors;
WHEREAS, in the case of multiple qualified patients who are in control of the
same legal parcel, or parcels, of property, or in the case of collective or cooperative
cultivation, or in the case of a caregiver growing for numerous patients, a very large
number of plants could be cultivated on the same legal parcel, or parcels, within the City
of Newport Beach ("City");
WHEREAS, the strong smell of marijuana creates an attractive nuisance, alerting
persons to the location of the valuable plants, and creating a risk of burglary, robbery or
armed robbery;
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the structural integrity of the building, and the use of high wattage grow lights and
excessive use of electricity increases the risk of fire which presents a clear and present
danger to the building and its occupants;
WHEREAS, the Attorney General's August 2008 Guidelines for the Security and
Non -Diversion of Marijuana Grown for Medical Use recognizes that the cultivation or
Ordinance No. 2015-33
Page 3 of 8
other concentration of marijuana in any location or premises without adequate security
increases the risk that nearby homes or businesses may be negatively impacted by
nuisance activity such as loitering or crime;
WHEREAS, based on the experiences of other cities, these negative effects on
the public health, safety, and welfare are likely to occur, and continue to occur, in the
City due to the establishment and operation of marijuana cultivation, processing and
distribution activities;
WHEREAS, Section 200 of the City's Charter vests the City Council with the
authority to make and enforce all laws, rules and regulations with respect to municipal
affairs subject only to the restrictions and limitations contained in the Charter and the
State Constitution, and the power to exercise, or act pursuant to any and all rights,
powers, and privileges, or procedures granted or prescribed by any law of the State of
California;
WHEREAS, the Newport Beach Municipal Code ("NBMC") does not expressly
address the cultivation, processing, delivery, and distribution of medical marijuana,
instead, Section 1.01.090 provides that "[i]n no event shall any license, permit, or
approval ... be granted for a use or activity that is illegal or unlawful under federal, state
or City laws or regulations;"
WHEREAS, prior to the effective date of this ordinance, the cultivation,
processing and distribution of medical marijuana is prohibited in the City to the extent
such activities are prohibited by the Federal Controlled Substances Act or other law;
WHEREAS, based on the findings above, the potential establishment of the
cultivation, processing and distribution of medical marijuana in the City without an
express ban on such activities poses a current and immediate threat to the public
health, safety, and welfare in the City due to the negative impacts of such activities as
described above;
WHEREAS, the issuance or approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for marijuana
cultivation, processing, delivery, and/or distribution will result in the aforementioned
threat to public health, safety, and welfare; and
WHEREAS, it is in the interest of the City, its residents, and its lawfully permitted
businesses that City adopts this ordinance to expressly prohibit the establishment and
operation of marijuana cultivation, processing, delivery, and dispensary activities as well
as the issuance of any use permit, variance, building permit, or any other entitlement,
license, or permit for any such activity, except where the City is preempted by federal or
state law from enacting a prohibition on any such activity. or a prohibition on the
issuance of any use permit, variance, building permit, or any other entitlement, license,
or permit for any such activity.
Ordinance No. 2015-33
Page 4 of 8
NOW THEREFORE, the City Council of the City of Newport Beach does ordain
as follows:
Section 1. The City Council of the City of Newport Beach hereby finds that the
above recitals are true and correct and are incorporated into the substantive portion of
this ordinance.
Section 2: The City Council hereby adds Chapter 10.70 entitled "Medical
Marijuana" to the City of Newport Beach Municipal Code to read as follows:
10.70.010 Legislative Findings and Statement of Purpose.
A. The City Council finds that the prohibitions on marijuana
cultivation, marijuana processing, marijuana delivery, and
marijuana dispensaries are necessary for the preservation and
protection of the public health, safety, and welfare for the City and
its community. The City Council's prohibition of such activities is
within, the authority conferred upon the City Council in its Charter
and state law.
B. On October 9, 2015, the governor signed the "Medical
Marijuana Regulation and Safety Act" ("Act") into law. The Act
becomes effective January 1, 2016 and contains new statutory
provisions that:
1. Allow local governments to enact ordinances
expressing their intent to prohibit the cultivation of marijuana
and their intent not to administer a conditional permit
program pursuant to Health & Safety Code section
11362.777 for the cultivation of marijuana (Health & Safety
Code § 11362.777(c)(4));
2. Expressly provide that the Act does not supersede or
limit local authority for local law enforcement activity,
enforcement of local ordinances, or enforcement of local
permit or licensing requirements regarding marijuana
(Business & Professions Code § 19315(a));
3. Expressly provide that the Act does not limit the
authority or remedies of a local government under any
provision of law regarding marijuana, including but not
limited to a local government's right to make and enforce
within its limits all police regulations not in conflict with
general laws (Business & Professions Code § 19316(c));
and
Ordinance No. 2015-33
Page 5 of 8
4. Require a local government that wishes to prevent
marijuana delivery activity, as defined in Business &
Professions Code section 19300.5(m) of the Act, from
operating within the local government's boundaries to enact
an ordinance affirmatively banning such delivery activity
(Business & Professions Code § 19340(a)).
C. The City Council finds that this chapter: (1) expresses its
intent to prohibit the cultivation of marijuana in the City and to not
administer a conditional permit program pursuant to Health &
Safety Code section 11362.777 for the cultivation of marijuana in
the City; (2) exercises its local authority to enact and enforce local
regulations and ordinances, including those regarding the
permitting, licensing, or other entitlement of the activities prohibited
by this chapter; (3) exercises its police power to enact and enforce
regulations for the public benefit, safety, and welfare of the City and
its community; and (4) expressly prohibits the delivery of marijuana
in the City.
10.70.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. "Marijuana" 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. The term "marijuana" 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).
B. "Marijuana Cultivation" means growing, planting, harvesting,
drying, curing, grading, trimming, or processing of marijuana.
Ordinance No. 2015-33
Page 6 of 8
C. "Marijuana Processing" means any method used to prepare
marijuana or its byproducts for commercial retail and/or wholesale,
including but not limited to: drying, cleaning, curing, packaging, and
extraction of active ingredients to create marijuana related products
and concentrates.
D. "Marijuana Dispensary" or "Marijuana Dispensaries" means
any business, office, store, facility, location, retail storefront or
wholesale component of any establishment, cooperative or
collective that delivers (as defined in Business & Professions Code
section 19300.5(m) or any successor statute thereto) whether
mobile or otherwise, dispenses, distributes, exchanges, transmits,
transports, sells or provides marijuana to any person for any
reason, including members of any medical marijuana cooperative
or collective consistent with 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 for the
purposes set forth in 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).
E. "Medical marijuana collective" or 'cooperative or collective"
means any group that is collectively or cooperatively cultivating and
distributing marijuana for medical purposes that is organized in the
manner set forth 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).
10.70.030 Prohibited Activities.
Marijuana cultivation, marijuana processing, marijuana delivery,
and marijuana dispensaries 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. No use permit,
variance, building permit, or any other entitlement, license, or
permit, whether administrative or discretionary, shall be approved
or issued for the activities of marijuana cultivation, marijuana
processing, marijuana delivery, or the establishment or operation of
Ordinance No. 2015-33
Page 7 of 8
a marijuana dispensary in the City, and no person shall otherwise
establish or conduct such activities in the City, except where the
City is preempted by federal or state law from enacting a prohibition
on any such activity for which the use permit, variance, building
permit, or any other entitlement, license, or permit is sought.
10.70.040 Public Nuisance.
Any violation of this chapter is hereby declared to be a public
nuisance.
10.70.050 Violations.
Any violation of this chapter shall be punishable as provided in
Section 1.04.010 of this Code or any successor section thereto.
10.70.060 Severability.
If any section, subsection, sentence or clause of this chapter is, for
any reason, held to be invalid or unconstitutional by a court of
competent jurisdiction, such decision shall not affect the validity of
the remaining portions of this chapter.
Section 3: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one (1) or more sections, subsections, sentences, clauses or phrases be declared,
invalid or unconstitutional.
Section 4: The City Council finds the approval of this ordinance is not subject to
the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly. Alternatively, the City Council finds the
approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3)
because it has no potential for causing a significant effect on the environment.
Ordinance No. 2015-33
Page 8 of 8
Section 5: This ordinance shall be in full force and effect thirty (30) days after its
adoption by a majority vote of the City Council. The Mayor shall sign and the City Clerk
shall attest to the passage of this ordinance. The City Clerk shall cause this ordinance,
or a summary thereof, to be published pursuant to Charter Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach, held on the 10th day of November, 2015, and adopted at a regular
meeting of the City Council of Newport Beach, held on the 24th day of November, 2015,
by the following vote, to wit:
AYES, COUNCILMEMBERS Peotter, Petros, Curry,
Duffield, Muldoon, Dixon, Mayor Selich
NOES, COUNCILMEMBERS None
ABSENT COUNCILMEMBERS None
ATTEST:
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LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
,It/' (- r )
AARON C. HARP, CITY ATTORNEY
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2015-33 was duly and regularly introduced on the 10th day of November, 2015, and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 24th day of
November, 2015, and that the same was so passed and adopted by the following vote, to wit:
AYES: Council Member Peotter, Council Member Petros, Council Member Curry,
Council Member Duffield, Council Member Muldoon, Mayor Pro Tem Dixon,
Mayor Selich
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 24th day of November, 2015.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
-a#i r &T)14
City Clerk' `J ° v
City of Newport Beach, California
(Seal)
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2015-33 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
2015.
Introduced Ordinance: November 14, 2015
Adopted Ordinance: November 28, 2015
In witness whereof, I have hereunto subscribed my name this ,'+'I` day of��"
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City'Clerk v
City of Newport Beach, California
(Seal)