MEMORANDUM. 2) Direct staff to prepare an ordinance banning all marijuana uses and activities to the extent authorized by current state law; and

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MEMORANDUM DATE: November 8, 2017 TO: FROM: RE: Mayor and City Council City Attorney Marijuana-Related Activities and Uses Consideration and Possible Adoption of a Draft Ordinance Prohibiting the

1 MEMORANDUM DATE: November 8, 2017 TO: FROM: RE: Mayor and City Council City Attorney Marijuana-Related Activities and Uses Consideration and Possible Adoption of a Draft Ordinance Prohibiting the Same to the Extent Authorized by California Law At your October 18, 2017 Council meeting, the Council received and considered a report from a Council Subcommittee, comprised of Deputy Mayor Kranz and Council member Mosca, which provided recommendations and additional information regarding certain aspects of marijuanarelated activities and uses. Subsequent to considering the report, public comments and Council deliberation, the Council (4-1 Council member Muir voting no) moved as follows: 1) Direct staff to prepare a draft ordinance regarding commercial marijuana cultivation and related uses and activities incorporating Council s comments and bring back for Council s consideration for placement on the November 2018 ballot; 2) Direct staff to prepare an ordinance banning all marijuana uses and activities to the extent authorized by current state law; and 3) Direct staff to ensure that all properties that may be impacted be noticed prior to any public hearings regarding the proposed ordinances. In response to No. 2 of the Council s action, attached is a draft ordinance ready for first reading, which if adopted, would expressly prohibit commercial and personal marijuana related activities and uses to the extent authorized by California law, and thereby, prevent and invalidate any state license or authorization regarding the same. The following reflects the major components of the draft ordinance: All commercial marijuana-related activities and uses are prohibited, to the extent authorized by California law (including retail sales, cultivation, manufacturing, distribution and transportation (delivery) Item 10E 1 of 10

2 Medical marijuana-related activities and uses are specifically prohibited to the extent authorized by California law Personal outdoor cultivation is prohibited Pursuant to state law, cities may only regulate and not prohibit personal indoor cultivation (up to six plants); indoor cultivation is not addressed and thereby would not be regulated (this may be changed to impose City regulations at a later date) The possession, smoking or ingesting of marijuana or marijuana-related products in public places or in buildings owned, leased or occupied by the City is prohibited (this would include the possession of edibles in parks) Any violation of any provision shall be either an infraction or misdemeanor, at the discretion of the City Attorney, and constitutes a public nuisance which may be abated by use of the civil process Item 10E 2 of 10

3 ORDINANCE NO AN ORDINANCE OF THE CITY COUNCIL ADDING CHAPTER 9.21 TO THE ENCINITAS MUNICIPAL CODE TO PROHIBIT COMMERCIAL AND PERSONAL MARIJUANA RELATED ACTIVITIES AND USES TO THE EXTENT AUTHORIZED BY CALIFORNIA LAW, AND THEREBY, PREVENT AND INVALIDATE ANY STATE LICENSE OR AUTHORIZATION REGARDING THE SAME WHEREAS, in November 2016, California voters approved Proposition 64, also known as the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ), which under state and local law, among other things, subject to certain restrictions and conditions, authorizes persons 21 years of age and older to (1) smoke, ingest or otherwise use nonmedical marijuana and marijuana related products; (2) purchase, possess, transport, obtain or give away (without compensation to persons age 21 and older) up to 28.5 grams of marijuana or 8 grams of concentrated marijuana; and (3) plant, cultivate and process up to six living marijuana plants for personal use; WHEREAS, in order to regulate the commercial use of marijuana, AUMA (pursuant to the Business and Professions Code) grants state agencies the power to create, issue, renew, discipline, suspend or revoke licenses for businesses including the sale, cultivation, manufacturing, distribution, transportation (delivery), storage and testing of marijuana; WHEREAS, AUMA provides that such state agencies shall promulgate rules and regulations and begin issuing licenses by January 1, 2018; WHEREAS, AUMA provides that a city shall not prevent transportation of marijuana or marijuana products on public roads by a licensee transporting the same in compliance with state law; WHEREAS, AUMA authorizes cities to completely prohibit personal outdoor cultivation on the grounds of a private residence (until a determination by the California Attorney General that nonmedical use of marijuana is lawful in the State of California under federal law ); WHEREAS, AUMA authorizes cities to completely prohibit or regulate the establishment or operation of any marijuana business that may be licensed by the state, within its jurisdiction, including marijuana sales, cultivation, manufacturing, distribution, transportation (delivery), storage, and testing of marijuana; WHEREAS, absent appropriate local regulations pursuant to AUMA, State regulations will control; WHEREAS, in May 2013, the California Supreme Court held in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., 56 Cal.4 th 729 (2013) that cities have the authority to regulate or ban outright medical marijuana land uses; WHEREAS, on June 27, 2017, Senate Bill 94 (SB 94), a budget trailer bill known as the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), became effective immediately and creates a single regulatory system for medical and nonmedical commercial marijuana-related businesses; Item 10E 3 of 10

4 WHEREAS, MAUCRSA repealed the Medical Cannabis Regulation and Safety Act (MCRSA) adopted in 2015, and incorporated certain provisions from MCRSA into the licensing provisions of AUMA to create one consolidated act known as MAUCRSA; WHEREAS, the Federal Controlled Substances Act prohibits the use, possession and cultivation of marijuana, and renders the same unlawful and subject to federal prosecution notwithstanding a claimed medical need; WHEREAS, MAUCRSA authorizes cities to continue prohibiting or regulating commercial operations, activities and uses relating to marijuana, including, but not limited to, prohibiting medical and nonmedical businesses; enacting and enforcing reasonable regulations relating to the personal cultivation and processing of marijuana indoors, and prohibiting the personal cultivation and processing of marijuana outdoors; and prohibiting the possession, smoking and ingestion of marijuana and marijuana-related products in public places, places where smoking is prohibited under the municipal code and otherwise, and within buildings owned, leased or occupied by a city, among other places; WHEREAS, the City has relied upon the application of permissive zoning to prohibit land uses and activities related to marijuana; WHEREAS, the City currently prohibits smoking (which includes vaping) in certain public places and other places properly designated as no smoking areas; WHEREAS, the City expressly desires to prohibit each and every marijuana and marijuana-related use and activity, including marijuana sales, cultivation, manufacturing, distribution, transportation (delivery), storage and testing of marijuana, to the extent authorized by California law; WHEREAS, this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ENCINITAS, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Encinitas hereby finds and determines that all of the above recitals are true and correct and incorporates the same into this Ordinance as if fully set forth herein. SECTION 2. A new Chapter 9.21 is hereby added to the Encinitas Municipal Code to read as follows: Marijuana and Marijuana-Related Activities and Uses Item 10E 4 of 10

5 Purpose and Intent Definitions Commercial Use Delivery Prohibited Exceptions Mobile Dispensaries--Prohibited Carriage of Marijuana Medical Use Personal Use Penalty for Violations Purpose and Intent. The purpose and intent of this Chapter is to regulate commercial, medical and personal marijuana and marijuana-related activities and uses; and, expressly prohibit each and every marijuana and marijuana-related use and activity, including marijuana sales, cultivation, manufacturing, distribution, transportation (delivery), storage, and testing of marijuana, to the extent authorized by California law. Nothing in this Chapter shall be interpreted to preempt or render inapplicable any provision of federal or state law Definitions. For purposes of this Chapter, the following definitions apply: Commercial marijuana activity includes the sale, cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, labeling, transportation (delivery), distribution of marijuana and marijuana products. Cultivation means any activity involving the planting, growing, harvesting, drying, curing, grading or trimming of marijuana. Delivery means the commercial transport or transfer, by any means, of marijuana and marijuana-related products from any marijuana business (or otherwise commercial transport or transfer), regardless of where the marijuana business (or marijuana) is located, to any person or place within the City. Delivery also includes the use by a retailer of any technology platform owned and controlled by the retailer, or independently licensed under California law, that enables customers to arrange for or facilitate the commercial transfer by a licensed retailer (or supplier) of marijuana or marijuana-related products. Distribution means the procurement, sale and transport of marijuana and marijuanarelated products between entities for commercial use purposes. Licensee means the holder of any state issued license related to marijuana activities, including but not limited to licenses issued pursuant to the Business & Professions Code. Manufacture means to compound, blend, extract, infuse or otherwise make or prepare a marijuana product. 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 Item 10E 5 of 10

6 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 (Compassionate Use Act of 1996) or California Health and Safety Code Sections to (Medical Marijuana Program Act). Marijuana accessories means any equipment, products or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, smoking, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana or marijuana-related products into the human body. Marijuana Business means a medical or nonmedical marijuana business (whether undertaken for profit or not-for-profit), dispensary, association, collective, cooperative, provider, person, or similar individual, entity or organization which sells (whether wholesale or retail), provides, conveys, distributes, delivers, dispatches, cultivates, stores, processes or prepares medical marijuana (or otherwise engages in commercial cannabis activity); Mobile dispensary means (i) any conveyance, powered or unpowered, licensed or unlicensed, manned or unmanned, from which marijuana is offered for viewing; sampling; concurrent or subsequent sale; or is given away; provided; distributed or dispensed; and which (ii) is owned, leased, operated, used, maintained or controlled by any person. Marijuana products means marijuana that has undergone a process whereby the plant material has been transformed into a concentrate, including but not limited to, concentrated cannabis, or an edible or topical product containing marijuana or concentrated cannabis and other ingredients. Operating a Mobile Dispensary means parking, stopping, idling, or standing on public or private property for the purpose of permitting marijuana to be offered for viewing; sampling; concurrent or subsequent sale; or to be given away; provided; distributed or dispensed. Person includes any individual, firm, company, organization, co-partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular. Private residence means residential unit such as a house, apartment unit, mobile home, or other similar dwelling. Qualified Patient, Primary Caregiver and Person with an Identification Card have the same meanings as those terms are defined in Section of the California Health and Safety Code. Sale includes any transaction whereby, for any consideration, title to marijuana is transferred from one person to another, and includes the delivery of marijuana or marijuanarelated products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same Item 10E 6 of 10

7 Any term defined in this Section also means that same term as defined in the California Business & Professions Code or the California Health & Safety Code, unless otherwise specified Commercial Use. A. The establishment or operation of any business of commercial marijuana or marijuanarelated activity or use shall be prohibited to the extent authorized by California law. No use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for the establishment or operation of any such business or operation. Such prohibited businesses or operations include, but are not limited to: 1. The storage, distribution, or sale of marijuana, marijuana-related products, or marijuana accessories; 2. The cultivation of marijuana and any related uses, processes or activities; 3. The manufacture or testing of marijuana, marijuana-related products, or marijuana accessories; 4. Any other marijuana or marijuana-related business, use or activity that may obtain a license from the State of California or any of its departments or subordinate entities; and 5. Delivery (transport) and mobile dispensaries (see Sections and of this Chapter) Delivery Prohibited Exceptions Delivery, or engaging in any action in furtherance of that purpose, shall be prohibited; provided, however, that this section shall not apply to (i) a primary caregiver delivering medical marijuana for the personal medical purposes of that primary caregiver s qualified patient or (ii) qualified patients transporting medical marijuana for personal use only Mobile Dispensaries Prohibited Operating a mobile dispensary, or engaging in any action in furtherance of that purpose, shall be prohibited Carriage of Marijuana Nothing in this Chapter shall prohibit the carriage of medical marijuana or its derivative products on public roads in the City by a licensee pursuant to Section 19340(f) of the California Business and Professions Code Medical Use. Any medical marijuana-related activities and uses shall be prohibited to the extent authorized by California law. No other use permit, variance, building permit, or any other entitlement or permit, whether administrative or discretionary, shall be approved or issued for medical marijuana-related activities and uses in the City, and no person shall otherwise engage in or establish such activity or use Item 10E 7 of 10

8 Personal Use. A. For purposes of this subsection, personal use, possession, purchase, transport (delivery), or dissemination of marijuana shall be prohibited in the City to extent that such prohibition is authorized by California law. B. It shall be prohibited for any person to plant, cultivate, harvest, dry or process marijuana plants outdoors. No use permit, building permit, variance, or any other permit or entitlement, whether administrative or discretionary, shall be approved or issued for any such use or activity. C. It shall be prohibited for any person to possess, smoke or ingest marijuana in public places (including places open to the general public) and in places where smoking (including vaping) is prohibited pursuant to this Code, to the extent authorized by California law. D. It shall be prohibited for any person to possess, smoke or ingest marijuana or marijuana related products in buildings owned, leased or occupied by the City, to the extent authorized by California law Penalty for Violations No person, whether as principal, agent, employee or otherwise, shall violate, cause the violation of, or otherwise fail to comply with any of the requirements of this Chapter. Every act prohibited or declared unlawful, and every failure to perform an act made mandatory in this Chapter, shall be a misdemeanor or infraction, at the discretion of the City Attorney. In addition to the penalties provided in this Chapter, any condition caused or permitted to exist in violation of any of the provisions of this Chapter is declared to be a public nuisance and may be abated as provided in this Code and/or under California law. SECTION 3. CEQA. This Ordinance is not a project within the meaning of Section of the State of California Environmental Quality Act ( CEQA ) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of San Diego in accordance with CEQA guidelines SECTION 4. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional Item 10E 8 of 10

9 SECTION 5. Restatement of Existing Law. Neither the adoption of this Ordinance nor the repeal of any other Ordinance of this City shall in any manner affect the prosecution for violations of Ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this Ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter shall be construed as restatements and continuations, and not as new enactments. SECTION 6. This Ordinance shall be effective 30 days after its adoption and the City Clerk shall certify to the adoption of this Ordinance and cause the same to be published at least once in the Coast News within 15 days of its adoption. INTRODUCED AND READ at a Regular meeting of the City Council of the City of Encinitas, California, held the day of 2017, and thereafter PASSED AND ADOPTED at a Regular meeting of said City Council held the day of 2017, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED: Catherine Blakespear, Mayor ATTEST: Kathy Hollywood, City Clerk Item 10E 9 of 10

10 CERTIFICATE OF CITY CLERK I, Kathy Hollywood, City Clerk of the City of Encinitas, California, do hereby certify the foregoing to be a true and exact copy of Ordinance No , duly passed and adopted by the City Council of said City on the date and by the vote therein recited and that the same has been duly published according to law. Kathy Hollywood, City Clerk (SEAL OF CITY) Item 10E 10 of 10

ORDINANCE NO. WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical Marijuana Regulation and Safety Act" ("Act") into law; and

ORDINANCE NO. WHEREAS, on October 9, 2015, Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act (Act) into law; and ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, ADDING SECTION 9-3.502 TO PROHIBIT CANNABIS DISPENSARIES, CANNABIS MANUFACTURERS, CULTIVATION, AND CANNABIS DELIVERY IN