HomeMy WebLinkAboutStaff Report 6565CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY
February 1, 2016
The Honorable City Council
Palo Alto, California
PUBLIC HEARING: Adoption of an Emergency Ordinance of the Council
of the City of Palo Alto Adding Chapter 9.16 (Medical Marijuana
Cultivation and Delivery) to Title 9 (Public Peace, Morals and Safety)
of the Palo Alto Municipal Code to Prohibit Medical Marijuana
Cultivation and Delivery in Palo Alto Pursuant to California Assembly
Bills 243 and 266 and Senate Bill 643. This Action is Exempt Under
Section 15061(b)(3) of the California Environmental Quality Act
Recommendation
Staff recommends that Council adopt the attached emergency ordinance (Attachment A)
adding Chapter 9.16 (Medical Marijuana Cultivation and Delivery) to Title 9 (Public Peace,
Morals and Safety) of the Palo Alto Municipal Code to prohibit medical marijuana cultivation
and delivery in Palo Alto, effective immediately. This action implements state law and is
consistent with prior Council policy.
Executive Summary
The proposed emergency ordinance is consistent with the City’s existing land use policy
adopted on June 9, 1997, as an uncodified urgency Ordinance No. 4422, prohibiting the
establishment and operation of medical marijuana dispensaries under the City’s zoning
ordinance (Attachment B). The proposed ordinance expressly prohibits medical marijuana
cultivation and delivery within the City of Palo Alto, effective immediately.
Under new provisions of State law, cities that do not have a land use regulation or ordinance
regulating or prohibiting medical marijuana cultivation in effect by March 1, 2016, will lose local
authority to regulate or ban cultivation, and the State of California would become the sole
licensing authority for medical marijuana cultivation in the jurisdiction.
Also, under new provisions of State law, cities that do not have an ordinance regulating or
prohibiting medical marijuana delivery in effect by January 1, 2018 (the date the State
anticipates issuing licenses), will lose the local authority to regulate or ban delivery, and the
State of California would become the sole licensing authority for medical marijuana delivery in
the jurisdiction.
Staff recommends that the proposed emergency ordinance expressly prohibiting medical
marijuana cultivation and delivery within the City be adopted by Council in February to ensure
14
Page 2
an effective date prior to the State-imposed deadline of March 1, 2016 relating to local medical
marijuana cultivation.
Background
On October 9 2015, Governor Brown signed three new laws relating to medical marijuana,
Assembly Bills 243 and 266 and Senate Bill 643. These bills create a broad state regulatory and
dual licensing system governing the cultivation, testing and distribution of medical marijuana,
the manufacturing of marijuana products, and physician recommendations for medical
marijuana.
Under the new legislation titled collectively as the Medical Marijuana Safety and Regulation Act
(MMSRA), state licenses and local permits will be required for all facets of the medical
marijuana industry.
AB 243 establishes the Department of Food and Agriculture (DFA) as the licensing and
regulatory authority for medical marijuana cultivation. Any person who wishes to engage in
commercial cultivation of medical marijuana must obtain a state license from the DFA. AB 243
also requires (1) the DFA to work with other state agencies to develop environmental
protection standards, (2) the Department of Pesticide Regulation to establish medical
marijuana pesticide standards, and (3) the Department of Public Health to create standards for
labeling of marijuana edibles.
AB 266 creates the Bureau of Medical Marijuana Regulation within the Department of
Consumer Affairs (DCA) to develop regulations and issue state licenses for medical marijuana
dispensaries, distributors and transporters. AB 266 designates the Department of Public Health
as the licensing and regulatory authority for manufacturers of marijuana products and medical
marijuana testing laboratories. Like AB 243, AB 266 requires all state marijuana license
applicants to comply with local permitting requirements.
SB 643 establishes standards for physicians that recommend medical marijuana, including
discipline for physicians who recommend excessive amounts. SB 643 also creates standards for
state license applications and enforcement.
Discussion
On June 9, 1997, the Council adopted uncodified urgency Ordinance No. 4422, prohibiting the
establishment and operation of medical marijuana dispensaries under the City’s zoning
ordinance (Attachment B).
This urgency ordinance is not comprehensive and does not include an express prohibition
against medical marijuana cultivation or medical marijuana delivery in the City. However,
under principles of permissive zoning, neither medical marijuana cultivation nor medical
marijuana delivery are listed as permitted activities in the City’s zoning code and are
presumptively prohibited. To avoid confusion and preserve local control, staff recommends
including an express prohibition.
Page 3
The proposed ordinance would expressly prohibit medical marijuana cultivation and medical
marijuana delivery within the City. The proposed ordinance satisfies two MMRSA deadlines, as
follows, allowing the City to maintain local authority over medical marijuana cultivation and
delivery:
1. Under the MMRSA, cities that do not have a land use ordinance or regulation
prohibiting medical marijuana cultivation and choose not to implement a regulatory
scheme, commencing March 1, 2016, will lose local authority to regulate or ban
cultivation; and the DFA will become the sole licensing authority.
2. Under the MMRSA, medical marijuana deliveries can only be made by a state-licensed
dispensary in a city, county, or city and county that does not explicitly prohibit it by local
ordinance (Business and Professions Code section 19340(a), part of AB 266). The State
plans to begin issuing medical marijuana delivery licenses on January 1, 2018.
With regard to delivery, the proposed Ordinance incorporates a definition of “delivery” under
state law that would prohibit the operation of medical marijuana delivery business in the City
and the delivery of medical marijuana within the City from a business located elsewhere. The
proposed Ordinance does not prevent, however, the City from regulating medical marijuana
cultivation or delivery within the City of Palo Alto in the future, subject to the applicable state
licensing requirements in the MMRSA.
Timeline
Under the MMRSA, as discussed above, cities that do not have a land use ordinance or
regulation prohibiting medical marijuana cultivation and choose not to implement a regulatory
scheme, commencing March 1, 2016, will lose local authority to regulate or ban cultivation; and
the DFA will become the sole licensing authority.
Further, under the MMRSA, medical marijuana deliveries can only be made by a state-licensed
dispensary in a city, county, or city and county that does not explicitly prohibit it by local
ordinance (Business and Professions Code section 19340(a), part of AB 266). The State plans to
begin issuing medical marijuana delivery licenses on January 1, 2018.
Accordingly, staff recommends that the proposed emergency ordinance expressly prohibiting
medical marijuana cultivation and delivery within the City be adopted by Council in February to
ensure an effective date prior to the State-imposed deadline of March 1, 2016 relating to local
medical marijuana cultivation.1 The attached ordinance is an emergency ordinance that takes
effect immediately upon adoption. It requires 8 votes for adoption.
1 Given the short deadlines imposed by the State, some cities are adopting ordinances through their emergency
authority. Palo Alto’s emergency authority is codified in PAMC Section 2.04.270(d) and the attached ordinance
contains the necessary health and safety findings.
Page 4
Resource Impact
The staff does not anticipate a resource impact associated with this Ordinance.
Environmental Review
This proposed ordinance is not a project within the meaning of section 15378 of the California
Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in
physical change in the environment, either directly or ultimately. In the event that this
proposed ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have
no possibility of a significant effect on the environment in that this proposed ordinance simply
codifies an existing prohibition.
ATTACHMENTS:
Attachment A: Emergency Ordinance adding Chapter 9.16 to Title 9 of the Palo Alto
Municipal Code to Prohibit Cultivation and Delivery of Medical Marijuana (PDF)
Attachment B: Uncodified Urgency Ordinance No. 4422 Prohibiting the Establishment and
Operation of Medical Marijuana Delivery in the City dated June 9, 1997 (PDF)
Department Head: Molly Stump, City Attorney
Page 5
NOT YET APPROVED
160119 sh 0200001 1
ORDINANCE NO. ________
Emergency Ordinance of the Council of the City of Palo Alto Adding Chapter 9.16
(Medical Marijuana Cultivation and Delivery) to Title 9 (Public Peace, Morals and
Safety) of the Palo Alto Municipal Code to Prohibit Medical Marijuana Cultivation
and Delivery in Palo Alto Pursuant to California Assembly Bills 243 and 266 and
Senate Bill 643
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as
follows:
A. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among
other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in
the United States.
B. In 1972, California added Chapter 6 to the state Uniform Controlled Substances
Act, commencing at Health and Safety Code section 11350, which established the state’s
prohibition, penalties and punishments for the possession, cultivation, transportation and
distribution of marijuana.
C. In 1996, the voters of the State of California approved Proposition 215 (entitled
the “Compassionate Use Act of 1996” (CUA) and codified as California Health and Safety Code
Section 11362.5 et seq.).
D. California courts have held that the CUA created a limited exception from
criminal liability for seriously ill persons who are in need of medical marijuana for specified
medical purposes and who obtain and use medical marijuana under limited, specified
circumstances.
E. On June 9, 1997, the Palo Alto City Council adopted uncodified urgency
Ordinance No. 4422 declaring the establishment and operation of medical marijuana
dispensaries to be a prohibited use under the City’s zoning ordinance.
F. On January 1, 2004, the state Legislature enacted the "Medical Marijuana
Program" (MMP), codified as California Health and Safety Code sections 11362.7 to 11362.83,
to clarify the scope of the CUA, establish a voluntary program for identification cards issued by
counties for qualified patients and primary caregivers, and provide criminal immunity to
qualified patients and primary caregivers for certain activities involving medical marijuana,
including the collective or cooperative cultivation of medical marijuana.
G. The California Supreme Court ruled unanimously in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, that the CUA and the
ATTACHMENT A
NOT YET APPROVED
160119 sh 0200001 2
MMP do not preempt local ordinances that completely and permanently ban medical
marijuana dispensaries, collectives and cooperatives.
H. In Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Third District Court of
Appeal of California held, based on Inland Empire, that there was no right to cultivate medical
marijuana and that cities could implement and enforce a complete ban, including a ban on
personal cultivation.
I. On October 9, 2015, Governor Brown signed Assembly Bills 243 and 266 and
Senate Bill 643 (collectively known as the Medical Marijuana Regulation and Safety Act
(MMRSA)), which taken together create a broad state regulatory and licensing system
governing the cultivation, testing and distribution of medical marijuana, the manufacturing of
marijuana products, and physician recommendations for medical marijuana, and provide
immunity to marijuana businesses operating with both a state license and a local permit.
J. While the MMRSA expressly preserves local control over medical marijuana
facilities and land uses, including the authority to prohibit all medical marijuana businesses and
cultivation completely, newly-added Health & Safety Code section 11362.777(c)(4) provides
that where a local jurisdiction does not have a land use regulation or ordinance regulating or
prohibiting marijuana cultivation, either expressly or otherwise under principles of permissive
zoning, or chooses not to administer a conditional permit program under that section, then
commencing March 1, 2016, the state Department of Food and Agriculture (DFA) will become
the sole licensing authority for marijuana cultivation in that jurisdiction.
K. Newly-added Health & Safety Code section 11362.777(b)(3) provides that the
DFA may not issue a State license to cultivate medical marijuana within a city that prohibits
cultivation under principles of permissive zoning.
L. The MMRSA requires a city that wishes to prohibit medical marijuana delivery
activity, as defined in Business and Professions Code section 19000.5(m), from operating within
the city to enact an ordinance expressly prohibiting such delivery activity.
M. Medical marijuana cultivation and medical marijuana delivery are not listed in
the City’s zoning code as either permitted or conditionally-permitted land uses and are,
therefore, prohibited under the principles of permissive zoning provisions. (City of Corona v.
Naulls (2008) 166 Cal.App.4th 418, 431-433). Accordingly, under the MMRSA, the DFA may not
issue a State license to cultivate medical marijuana or for medical marijuana delivery within the
City of Palo Alto because medical marijuana cultivation and medical marijuana delivery are
prohibited in the City under principles of permissive zoning.
N. The City Council has determined that express Municipal Code provisions
prohibiting medical marijuana cultivation and medical marijuana delivery will benefit the public
by providing clear guidelines regarding the scope of prohibited conduct and minimize the
potential for confusion regarding the City’s policies.
NOT YET APPROVED
160119 sh 0200001 3
O. Many California communities have experienced adverse impacts and negative
secondary effects from medical marijuana establishments and cultivation sites, including
hazardous construction, unsafe electrical wiring, noxious odors and fumes affecting neighboring
properties and businesses, increased crime in and around such land uses, and the diversion of
medical marijuana to minors.
P. There is significant evidence that medical marijuana delivery services are also
targets of violent crime and pose a danger to the public.
Q. In order to protect the public health, safety, and welfare, the City Council
desires to add Palo Alto Municipal Code Chapter 9.16 to prohibit, in express terms, medical
marijuana cultivation and delivery within the City.
R. The State regulation and licensing as contemplated in Assembly Bills 243 and 266
and Senate Bill 643 have not yet taken effect nor been implemented, and the Council desires to
preserve local control over medical marijuana cultivation and delivery within the City.
S. This Ordinance is not a project within the meaning of section 15378 of the
California Environmental Quality Act (CEQA) Guidelines because it has no potential for resulting
in physical change in the environment, either directly or ultimately. In the event that this
Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained
in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment in that this Ordinance simply clarifies
existing local regulations.
SECTION 2. Chapter 9.16 (Medical Marijuana Cultivation and Delivery) is hereby
added to Title 9 (Public Peace, Morals and Safety) of the Palo Alto Municipal Code to read as
follows:
Chapter 9.16
MEDICAL MARIJUANA CULTIVATION AND DELIVERY
9.16.010 Definitions.
9.16.020 Prohibitions.
9.16.030 Enforcement.
9.16.010 Definitions.
(a) “Marijuana” means all parts of the plant Cannabis, 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 includes
marijuana infused in foodstuff, and concentrated cannabis and the separated resin, whether
crude or petrified, obtained from marijuana. 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
NOT YET APPROVED
160119 sh 0200001 4
compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except
resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are
incapable of germinations.
(b) “Medical marijuana cultivation” shall have the same meaning as “cultivation”
set forth in California Business and Professions Code Section 19300.5(l) as that section may be
amended from time to time.
(c) “Medical marijuana delivery” shall have the same meaning as “delivery” set
forth in California Business and Professions Code Section 19300.5(m) as that section may be
amended from time to time.
9.16.020 Prohibitions.
(a) The following are prohibited:
(1) Medical marijuana cultivation in all zones in the City of Palo Alto.
(2) Medical marijuana delivery in all zones in the City of Palo Alto.
9.16.030 Enforcement.
The City may enforce this section in any manner permitted by law. The violation of
this Chapter shall be and is hereby declared to be a public nuisance and shall, at the discretion
of the City, create a cause of action for injunctive relief.
SECTION 3. If any section, subsection, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining portion or
sections of the Ordinance. The City Council hereby declares that it should have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof irrespective of the
fact that any one or more sections, subsections, sentences, clauses or phrases be held invalid.
SECTION 4. The City Council finds and determines that this Ordinance is not a
project within the meaning of section 15378 of the California Environmental Quality Act
(“CEQA”) because it has no potential for resulting in physical change in the environment, either
directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is
subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it
can be seen with certainty to have no possibility of a significant effect on the environment in
that this Ordinance simply clarifies existing local regulations.
//
//
//
//
NOT YET APPROVED
160119 sh 0200001 5
SECTION 5. The City Council finds and declares that, for the reasons provided in
Section 1, this Ordinance is necessary as an emergency measure for preserving the public
peace, health, or safety. Pursuant to Palo Alto Municipal Code section 2.04.270(d), this
Ordinance shall take full force and effect immediately upon adoption by a vote of four-fifths of
the council members present.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
____________________________ ____________________________
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
____________________________ ____________________________
Principal Attorney City Manager
»jj..uj»i.-mim«»J'-'r",T-'1'u-l"l*'Jllt""*°,"**f"
rf PaloAlto
Office ofthe City Clerk
ORDINANCE NO. 4422
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
DECLARING THE ESTABLISHMENT AND OPERATION OF
MEDICAL MARIJUANA DISPENSARIES TO BE A PROHIBITED
USE UNDER THE ZONING ORDINANCE,AND DECLARING THE
URGENCY THERBOF,TO TAKE EFFECT IMMEDIATELY
The City Council of the City of Palo Alto does ordain as
follows:
SfiC/TION 1.Findings. The Council finds and declares:
A.In November 1996 the voters of the'State of California
approved an initiative measure known as Proposition 215,which
added Code Section 11362.5 to the California Health and Safety
Code.Proposition 215 created a defense to the criminal laws
•forbidding possession and cultivation of marijuana, for persons
possessing or cultivating the drug for personal medical purposes
upon the written or oral recommendation or approval of a physician.
The defense also extends to -the individual's primary caregiver as
defined by law.
B.Since enactment of Proposition 215,persons throughout
the State have expressed a desire to establish locations where
marijuana can be dispensed to those persons who qualify for its use
under state law.Because possession and cultivation of marijuana
was illegal until enactment of Proposition 215,cities and counties
had not addressed in their zoning and other regulations the
requirements for establishment and operation of facilities at which
medical marijuana would be dispensed.Some cities and counties
have responded to Proposition 215 by enacting ordinances which
establish new zoning and police regulations governing medical
marijuana dispensaries,or impose a limited-term moratorium on the
opening of such facilities,to allow time for study and development
of appropriate regulations.
C.The District Attorney's Office of Santa Clara County
has announced its intent to interpret Propertion 215 in a manner
which takes into account the humanitarian purposes of the
Proposition,allowing for some reasonable production and
distribution for medicinal purposes only.The nature and extent of
cultivation and distribution which may lawfully be undertaken by
private parties other than the medical marijuana users themselves
is thus an open question.Special zoning "and perhaps other
regulations would therefore be necessary in order to adequatelycontrolsuchusesinPaloAlto.*uaws.Ly
w,.D-The State Legislature is currently considering billswhichwouldregulatethedistributionofmedicalmarijuana.Any
city regulations of such activities may.be required to beconsistentwithsuchstatelaws,once enacted re«uirea co &e
910600*00*0520 P.O.Box 10250
Palo Alto,CA 94303
650.328.3631 fax
ATTACHMENT B
Citfbf Palo Alto
Office ofthe City Clerk
B..it is necessary for the preservation of the public
peace,health and safety to enact as an urgency measure an
ordinance,declaratory of existing law,prohibiting the
establishment and operation of medical marijuana dispensaries.The
reasons for the urgency are as follows:
1. The City has in recent weeks received inquiries
about establishment of a medical marijuana dispensary in the City.
2.Such inquiries should be taken seriously,
inasmuch as nearby communities have also received such requests and
experienced high interest by persons wishing to establish such
facilities.The City of San Jose, for example, has recently
obtained a court order requiring closure of an illegal medical
marijuana dispensary, and is processing permit requests for two
other facilities for which applications were filed under a
recently-enacted ordinance regulating medical marijuana
dispensaries.
3.While the City's zoning ordinance (Title 18,Palo
Alto Municipal Code!allows various kinds of medical and related
uses as permitted or conditional uses in specified zoning
districts,it does not provide for the medicinal distribution of
marijuana.Because cultivation and possession of marijuana in
California was illegal until passage of Proposition 215,facilities
dispensing medical marijuana are not an enumerated use under the
zoning ordinance.
4.Experience in other communities suggests that a
number of regulatory issues should be carefully considered prior to
allowing establishment of medical marijuana dispensaries in order
to prevent crime and ensure compatibility with other uses,
including residential uses and schools.These issues include
security requirements,appropriate zoning designations and
development standards,and monitoring and reporting requirements.
Study of these issues and development of recommendations will
require prioritization with other projects currently being
undertaken by the Police Department and the Department of Planninq
and Community Environment.
5.Because dispensation of medical marijuana is notanactivitycurrentlyaddressedintheMunicipalCode,the City can
expect to experience enforcement problems if persons attempt to
dispense medical marijuana in Palo Alto,in the absence of
regulations specifically governing such uses.-In light of the
expressed interest in establishing a medical marijuana dispensary
in Palo Alto,and the time required to study and develop
appropriate regulations,an urgency ordinance is necessary to
provide a clear statement of existing law and to protect the publicpeace,health and safety.^
SECTION 2.Definitions
Ordinance,the following definition shall applyFor the purposes of this
970603bde0080*20
P.O.Box 10250
650.329.2571
650.328.3631 fax
•?£*:
Office ofthe City Clerk
"Medical Marijuana Dispensary"is a facjU&fcy .wmh»mM*$uau»-.
is made available for medical purposes in accordance vtth-HfeAtiiandSafetyCodeSection11362.5 (Proposition ju9)r.'TMtf'Sao^*4#fv
include the cultivation or possession of atarijuafia;"^y"K"wt?*yX:e.
patient or caregiver,for medical use in accordance with Health and
Safety Code Section 11362.5.»*•*~,*-w-'."V.'"'
section 3.BffmfrUflhmgni;a.n,d.opexauon Protupi,Eeri-'^^
(a)No person shall operate 'or1 allow or "suffer •'tMe'
operation of a Medical Marijuana Dispensary within the City of Palo
Alto.
(b)No permit or certificate of use and occupancy shall be
issued for a Medical Marijuana Dispensary.
(c)This section is declaratory of existing law.
SECTION 4.Effective Date
effective immediately upon adoption.
This ordinance shall be
SECTION S. The Council finds that this project is
exempt from the provisions of the Environmental Quality Act i"CEQA*>
because it can be seen with certainty that there is no possibility
that'this project,which consists of a declaration of existing law,
will have a significant effect on the environment.
This ordinance was passed at a regular meeting of the
Council of the City of Palo Alto on Monday,June 9,1997,and was
passed by a four-fifths vote of all Council members present at the
meeting as follows:
INTRODUCED AND PASSED:June 9, 1997
AYES:EAKINS,FAZZINO,HUBER,MCCOWN,ROSENBAUW,SCHNEIDER, WHEELER
NOES:
ABSTENTIONS:
ABSENT:ANDERSEN,KNISS
ATTEST
/Pat.City Clerk
r Assistant City Attorney
9704»Mc0080520
Director of Planning and
Community Environment
P.O.Box 10250
Palo Alto,CA94303
ifrtimnnrm ,••.
650.328.3631 fax
;t
ft.J
•
mmmmntrnm
pet
^Mf^^^LSi
Office ofthe City Clerk
P.O.Box 10250
PaloAlto, CA 94303
650.329.2571
650.328.3631 fax
""-TWy-r1,t'-'in-fl •"••'i•'•rI-1iT