ORDINANCE NO. City Attorney s Synopsis

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1 Eff: ORDINANCE NO. AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK AMENDING TITLE 3 (BUSINESSES AND LICENSES), TITLE 5 (POLICE AND PUBLIC SAFETY) AND TITLE 10 (ZONING REGULATIONS) OF THE BURBANK MUNICIPAL CODE (BMC) TO DEFINE AND REGULATE CERTAIN CANNABIS ACTIVITIES IN THE CITY. City Attorney s Synopsis This Ordinance amends Title 3, Title 5, and Title 10 of the Burbank Municipal Code to update the City s cannabis regulations in compliance with recent changes to state law enacted through the Control, Regulate and Tax Adult Use of Marijuana and the Medicinal and Adult-Use Cannabis Regulation and Safety Act. Specifically, this Ordinance maintains the existing prohibition on commercial cannabis activities, clarifies who may engage in personal cultivation as permitted by new state laws, and requires such personal cultivation to be conducted indoors. THE COUNCIL OF THE CITY OF BURBANK FINDS AS FOLLOWS: A. In 1970 Congress passed the Federal Controlled Substances Act ( CSA ), 21 U.S.C. sections 801 et seq., which prohibits the manufacture, cultivation, distribution and possession of marijuana and classifies it as a Schedule 1 drug, meaning it has no accepted medical value in treatment. B. In 1996, California voters approved Proposition 215 (H&S ), entitled the Compassionate Use Act ( CUA ), with the intent to ensure that seriously ill individuals have the right to obtain and use marijuana for medical purposes when recommended by a physician. C. In 2003, the California Legislature passed Senate Bill 420 (H&S et seq.) to create the Medical Marijuana Program ( MMP ), which clarified the scope of the CUA by establishing a voluntary program for the issuance of medical marijuana identification cards for qualified patients, set limits on the amount of marijuana any individual could possess, and provided an exemption from State criminal liability for persons who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes. D. On October 9, 2015, Governor Jerry Brown approved the Medical Marijuana Regulation and Safety Act ( MMRSA ), which was comprised of the following California legislative bills: Assembly Bill 243, Assembly Bill 266, and Senate Bill 643. MMRSA established a State licensing scheme for individuals and entities engaged in Exhibit A- 1

2 commercial medical cannabis activity, while protecting land use and police powers of local governments. MMRSA allowed local jurisdictions to regulate and/or completely prohibit commercial medical cannabis activities, including cultivation, processing, transportation, testing, and distribution of medical cannabis. E. On January 26, 2016, the Council of the City of Burbank adopted Ordinance No. 16-3,872, which codified the City s prohibition of all commercial medical cannabis activities, including medical cannabis deliveries, medical cannabis dispensaries, and commercial medical cannabis cultivation throughout the City. Notwithstanding the prohibition of commercial medical cannabis activities, Ordinance No. 16-3,872 specifically authorized (1) medical cannabis delivery to qualified patients located within the City by primary caregivers, as defined, and (2) personal cultivation of medical cannabis by qualified patients or primary caregivers, as defined, in order to ensure that seriously ill patients had access to medical cannabis if necessary. Ordinance No. 16-3,872 was silent regarding non-medical cannabis activities, as those activities remained prohibited under then-existing State law. F. On November 8, 2016, the Control, Regulate and Tax Adult Use of Marijuana Act ( AUMA ) was approved by California voters, which, among other things, legalized the use of recreational (non-medical) cannabis by those who are 21 years of age or older and established a comprehensive system for the State to regulate commercial recreational cannabis activity. AUMA grants State agencies the authority to create, issue, renew, discipline, suspend, or revoke licenses for commercial recreational cannabis activities, and requires the State to begin issuing operational licenses to commercial cannabis businesses by January 1, G. On June 27, 2017, Governor Jerry Brown approved Senate Bill No. 94, the Medicinal and Adult-Use Cannabis Regulation and Safety Act ( MAUCRSA ), which became effective immediately and merged the medical cannabis and recreational cannabis regulations together. Among other things, MAUCRSA does the following: Incorporates both recreational and medical commercial cannabis activities under the same commercial license types that will be issued by the State. Previous commercial medical cannabis activities that fell under a dispensary license will now be licensed under a retailer license (MAUCRSA 4; see California Business & Professions Code ( B&P ) 26050; 26070). Reaffirms that local governments maintain regulatory, land use, and zoning authority over commercial cannabis activities, including the ability to completely prohibit commercial cannabis activities and businesses within a local jurisdiction (B&P 26200). Reaffirms that MAUCRSA does not limit the authority or remedies of a local government under any provision of law, including but not limited to a local government s constitutional right to make and enforce within its limits all police regulations not in conflict with general laws (B&P 26200(f)). Provides that the State may not issue a State commercial cannabis license if issuance would violate local ordinances (B&P 26055(d)). Exhibit A- 2

3 Requires local governments to provide the state with copies of local ordinances related to commercial cannabis activities (B&P 26055(f)). Requires local governments to provide the state with the name of a contact person who will communicate with state licensing authorities over issuance of state licenses within the local government s jurisdiction, in order to confirm compliance with local laws. Upon receipt of an application for a state commercial cannabis license, the State will notify the local contact person and the local contact person may notify the State whether such activities will be in compliance with local laws. If no response is provided by the local contact person within 60 business days of receiving the State s inquiry, there will be a rebuttable presumption that the applicant s proposed commercial cannabis activities are in compliance with local laws. (B&P 26055(f)). Requires local governments to allow cannabis cultivation for personal use by adults who are 21 years of age or older, provided that such personal cultivation (1) occurs inside a private residence (including an accessory structure to a private residence) and (2) does not exceed six living plants upon the grounds of the private residence at one time (California Health & Safety Code ( H&S ) ). Allows local governments to enact reasonable regulations on personal cannabis cultivation, including completely prohibiting outdoor personal cultivation (H&S ). H. The Burbank Municipal Code ( BMC ) expressly prohibits all commercial medical cannabis activities within the City. Furthermore, Title 10 (Zoning Regulations) of the BMC expressly provides that uses in all zones are only allowed as authorized under the provisions of the BMC. While the City Council believes that all commercial recreational cannabis activities are prohibited within the City because they are not authorized anywhere throughout the BMC, the Council desires to enact this ordinance to expressly make clear that all such commercial recreational cannabis activities are prohibited in all zones throughout the City. I. The BMC currently authorizes personal cultivation of medical cannabis by qualified patients and primary caregivers, but is silent regarding personal cultivation for recreational purposes by adults who are 21 years or older. In order to ensure compliance with state law mandates issued under MAUCRSA, the Council desires to enact this ordinance to expressly make clear that in addition to personal cultivation by qualified patients and primary caregivers, adults who are 21 years or older may engage in personal cannabis cultivation on the grounds of a private residence. Furthermore, in order to facilitate enforcement and reduce potential impacts on neighboring residents, the Council desires to require that all personal cannabis cultivation (both medical and recreational) occur indoors. J. In order to align various cannabis-related terminology currently referenced in the BMC with updated state law terminology issued under MAUCRSA, the Council desires to enact this ordinance to make clarifying updates to cannabis-related definitions and references throughout the BMC. Exhibit A- 3

4 K. Section 200 of the City s Charter vests the Council with the authority to exercise all powers necessary or appropriate to a municipal corporation and the general welfare of its inhabitants, which are not prohibited by the California Constitution or the Charter. L. The Planning Board held a duly noticed public hearing on October 23, 2017, at which time it considered all evidence presented, both written and oral and at the end of the hearing voted to adopt a resolution recommending that the City Council adopt this Ordinance; and M. The City Council held a duly noticed public hearing on this Ordinance on November 7, 2017, at which time it considered all evidence presented, both written and oral. THE COUNCIL OF THE CITY OF BURBANK DOES ORDAIN AS FOLLOWS: Section 1. Incorporation of Findings. The City Council of the City of Burbank hereby finds that the above findings are true and correct and are hereby incorporated by reference. Section 2. Authority. This Ordinance is adopted pursuant to the authority granted by the California Constitution, Charter of the City of Burbank, and State law, including but not limited to Article XI, Section 7 of the California Constitution, the Compassionate Use Act, the Medical Marijuana Program, the Control, Regulate and Tax Adult Use of Marijuana Act, and the Medicinal and Adult-Use Cannabis Regulation and Safety Act. Section 3. Environmental Review. This Ordinance was determined to be exempt from the California Environmental Quality Act (CEQA) under Section 15061(b)(3) of the CEQA Guidelines (14 CCR et seq.) in that it can be seen with certainty that there is no possibility that the proposed changes to the Burbank Municipal Code including the Zone Text Amendment would have a significant effect on the environment. The City s existing Zoning Code and permissive zoning provisions already prohibit all uses that are being expressly prohibited by this Ordinance. Therefore, this Ordinance will have no impact on the physical environment as it will not result in any changes. Section 4. Amendment to B.M.C Section (Prohibition) of Article 26 (Commercial Cannabis Activity), Chapter 4 (Businesses and Occupations), Title 3 (Businesses and Licenses) of the Burbank Municipal Code is amended and restated as follows: : PROHIBITION: A. Definitions. The words and phrases used in this Section shall have the same meanings as set forth in Section Exhibit A- 4

5 B. Commercial cannabis activities of all types, including cannabis deliveries and cannabis retailers, are prohibited in the City, as provided in Sections and Accordingly, the City shall not issue any entitlement, license, or permit, whether administrative or discretionary, for any commercial cannabis activity for which a license is required under State law, including but not limited to the Control, Regulate and Tax Adult Use of Marijuana Act or the Medicinal and Adult-Use Cannabis Regulation and Safety Act. Section 5. Amendment to B.M.C Section (Cannabis Activities) of Article 2 (Crimes Against Public Health and Safety), Chapter 3 (Morals and Conduct), Title 5 (Police and Public Safety) of the Burbank Municipal Code is amended and restated as follows: : CANNABIS ACTIVITIES: A. Definitions. The words and phrases used in this Section shall have the same meanings as set forth in Section B. Commercial cannabis activities of all types are prohibited in the City. No person shall establish, operate, conduct or allow a commercial cannabis activity anywhere within the City, except where the City is preempted by Federal or State law from enacting a prohibition on any such activity. C. To the extent not already covered by subsection B above, all deliveries of cannabis are expressly prohibited within the City. No person or entity shall conduct any deliveries of cannabis that either originate or terminate within the City. Notwithstanding any other provision of this Code, primary caregivers, who are exempt from the licensing requirements of the Control, Regulate and Tax Adult Use of Marijuana Act and the Medicinal and Adult-Use Cannabis Regulation and Safety Act pursuant to California Business & Professions Code section 26033(b), may deliver medical cannabis to their qualified patients within the City, which number may not exceed five qualified patients. D. To the extent not already covered by subsection B above, all cannabis retailers are expressly prohibited within the City. No person or entity shall establish or operate any cannabis retailer operation within the City. E. Notwithstanding any other provision of this Code, cannabis cultivation for personal use is permitted in compliance with the following requirements: 1. A qualified patient or primary caregiver, who is exempt from specified licensing requirements under California Business and Professions Code section 26033, may cultivate cannabis for the personal use of qualified patients, so long as the total number of cultivated plants does not exceed six living plants. 2. Any individual who is 21 years of age or older may cultivate cannabis for personal use in compliance with California Health and Safety Code sections and , so long as the total number of cultivated plants does not exceed six living plants. Exhibit A- 5

6 3. All personal cannabis cultivation as permitted under this section shall be conducted outside or inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, so long as the cultivation area is in a locked space. Cannabis plants that are cultivated pursuant to this section shall not be visible from a public place. No more than the maximum amounts of cannabis plants permitted under subsections E.1. and E.2., respectively, shall be cultivated upon the grounds of a single private residence at one time. F. Any activity conducted, or permitted to be conducted, in violation of any provision of this Section or any other provision of this Code shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the City pursuant to California Code of Civil Procedure section 731 or any other remedy available to the City. Section 6. Amendment to B.M.C The Cannabis Uses section of Section (Uses in All Zones (Except Residential Zones)) of Article 5 (Use Table and General Use Regulations) of Chapter 1 (Zoning) of Title 10 (Zoning Regulations) of the Burbank Municipal Code is amended and restated as indicated on Exhibit 1, attached and incorporated by reference. Section 7. Amendment to B.M.C (Cannabis Activity). Section (Prohibited Cannabis Activity) of Article 5 (Use Table and General Use Regulations), Chapter 1 (Zoning), Title 10 (Zoning Regulations) of the Burbank Municipal Code is amended and restated as follows: : PROHIBITED CANNABIS ACTIVITY: A. DEFINITIONS. The following definitions shall have the following meanings, and shall apply to Section , Section , Section , Section , Section , Section , and any other provisions of this Code where reference is made to this section. Cannabis shall have the same meaning as set forth in California Business & Professions Code as the same may be amended from time to time. Cannabis accessories shall have the same meaning as set forth in California Business & Cannabis products shall have the same meaning as set forth in California Business & Caregiver or primary caregiver shall have the same meaning as set forth in California Health & Safety Code as the same may be amended from time to time. Commercial cannabis activity shall have the same meaning as that set forth in California Business & Professions Code as the same may be amended from time to time, Exhibit A- 6

7 which includes cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery, or sale of cannabis or cannabis products. Commercial cannabis activity includes both for-profit and non-profit commercial cannabis activities. Commercial cannabis activity includes sale or delivery of cannabis to customers by a retailer. Control, Regulate and Tax Adult Use of Marijuana Act or AUMA shall mean Proposition 64, approved by the voters of the State of California on November 6, Cooperative shall mean two or more persons collectively or cooperatively cultivating, using, transporting, possessing, administering, delivering or making available cannabis, with or without compensation. Cooperative includes an Association as defined in California Business & Professions Code as the same may be amended from time to time. Cultivation shall have the same meaning as set forth in California Business & Cultivation shall not include cultivation for personal use by a qualified patient or primary caregiver, who is exempt from specified licensing requirements under California Business & Professions Code section 26033, so long as the total number of cultivated plants does not exceed six living plants. Cultivation shall not include cultivation for personal use performed by an individual who is 21 years of age or older in compliance with California Health & Safety Code and , so long as the total number of cultivated plants does not exceed six living plants. Customer shall have the same meaning as set forth in California Business & Delivery shall have the same meaning as set forth in California Business & Delivery shall not include primary caregivers, who are exempt from specified licensing requirements under California Business & Professions Code section 26033, delivering medical cannabis to their qualified patients within the City, which number may not exceed 5 qualified patients. Distribution shall have the same meaning as set forth in California Business & License shall have the same meaning as set forth in California Business & Professions Code as the same may be amended from time to time. Manufacturer shall have the same meaning as set forth in California Business & Exhibit A- 7

8 Medical cannabis, or medicinal cannabis product, shall have the same meaning as set forth in California Business & Professions Code as the same may be amended from time to time. Medicinal and Adult-Use Cannabis Regulation and Safety Act or MAUCRSA shall mean California Senate Bill No. 94, signed into law on June 27, 2017, as the same may be amended from time to time. Operation shall have the same meaning as set forth in California Business & Private residence shall have the same meaning as set forth in California Health & Safety Code , as the same may be amended from time to time, which includes a house, apartment unit, mobile home, or other similar dwelling. Qualified patient shall have the same meaning as set forth in California Health & Safety Code as the same may be amended from time to time. Retailer shall mean any operation involving the retail sale or delivery of cannabis, cannabis products, or cannabis accessories to customers for which a State license is required under AUMA or MAUCRSA. Retailers shall include cooperatives. Sell, sale, and to sell shall have the same meaning as set forth in California Business & Testing laboratory shall have the same meaning as set forth in California Business & B. PROHIBITION. 1. Commercial cannabis activities of all types are expressly prohibited in all zones in the City. No person shall establish, operate, conduct or allow a commercial cannabis activity anywhere within the City, except where the City is preempted by Federal or State law from enacting a prohibition on any such activity. 2. To the extent not already covered by subsection B.1 above, all deliveries of cannabis are expressly prohibited within the City. No person or entity shall conduct any deliveries of cannabis that either originate or terminate within the City. 3. To the extent not already covered by subsection B.1 above, all cannabis retailers are expressly prohibited within the City. No person or entity shall establish or operate any cannabis retailer operation within the City. 4. This section is meant to prohibit all activities for which a State license is required under AUMA or MAUCRSA. Accordingly, the City shall not issue any use permit, variance, building permit, or any other entitlement, license, or permit, Exhibit A- 8

9 whether administrative or discretionary, for any activity for which a State license is required under AUMA or MAUCRSA. C. DELIVERY TO QUALIFIED PATIENTS. Notwithstanding any other provision of this Code, primary caregivers, who are exempt from the licensing requirements of AUMA or MAUCRSA pursuant to California Business & Professions Code section 26033(b), may deliver medical cannabis to their qualified patients within the City, which number may not exceed five qualified patients. D. CULTIVATION FOR PERSONAL USE. Notwithstanding any other provision of this Code, cannabis cultivation for personal use is permitted in compliance with the following requirements: 1. A qualified patient or primary caregiver, who is exempt from specified licensing requirements under California Business and Professions Code section 26033, may cultivate cannabis for the personal use of qualified patients, so long as the total number of cultivated plants does not exceed six living plants. 2. Any individual who is 21 years of age or older may cultivate cannabis for personal use in compliance with California Health and Safety Code sections and , so long as the total number of cultivated plants does not exceed six living plants. 3. All personal cannabis cultivation as permitted under this section shall be conducted outside or inside a private residence, or inside an accessory structure to a private residence located upon the grounds of a private residence, so long as the cultivation area is in a locked space. Cannabis plants that are cultivated pursuant to this section shall not be visible from a public place. No more than the maximum amounts of cannabis plants permitted under subsections D.1. and D.2., respectively, shall be cultivated upon the grounds of a single private residence at one time. E. PUBLIC NUISANCE. Any use or condition caused, or permitted to exist, in violation of any provision of this Section shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the City pursuant to California Code of Civil Procedure Section 731 or any other remedy available to the City. Section 8. Amendment to B.M.C The Cannabis Uses section of Table (Permitted Uses in the R-1 and R-1-H Zones) of Section (Uses in R-1 and R-1-H Zones) of Division 1 (Single Family Residential Zones) of Article 6 (Residential Uses and Standards) of Chapter 1 (Zoning) of Title 10 (Zoning Regulations) of the Burbank Municipal Code is amended and restated as follows: Land Use R-1 R-1-H Specific Use Standards Exhibit A- 9

10 Cannabis Uses Cannabis delivery Commercial cannabis activities Cultivation Retailer Section 9. Amendment to B.M.C The Cannabis Uses section of Table (Permitted Uses in the Multiple Family Residential Zones) of Section (Uses in the Multiple Family Residential Zones) of Division 4 (Multiple Family Residential Zones) of Article 6 (Residential Uses and Standards) of Chapter 1 (Zoning) of Title 10 (Zoning Regulations) of the Burbank Municipal Code is amended and restated as follows: Land Use R-2 R-3 R-4 Specific Use Standards Cannabis Uses Cannabis delivery Commercial cannabis activities Cultivation Retailer Section 10. State Contact. The Community Development Director or the Director s designee ( Director ) shall serve as the City s contact for State licensing authorities regarding commercial cannabis activity within the City, and shall deliver the contact information for this person to the State in compliance with California Business & Professions Code The Director shall respond to inquiries from the State regarding commercial cannabis activities within the City, and shall deliver a copy of this Ordinance, as well as any future amendments, to the State in compliance with California Business & Professions Code Section 11. Severability. If any provision of this Ordinance or its application is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions, sections, or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end each phrase, section, sentence, or word is declared to be severable. Section 12. Effective Date. This Ordinance shall become effective at 12:01 a.m. on the thirty-first (31st) day after the date of adoption. PASSED AND ADOPTED this day of, Will Rogers City of Burbank Mayor Exhibit A- 10

11 Attest: Zizette Mullins, MMC, City Clerk Approved as to Form Office of the City Attorney By: Lisa Kurihara, Assistant City Attorney Exhibit A- 11

12 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF BURBANK ) I, Zizette Mullins, MMC, City Clerk of the City of Burbank, do hereby certify that the foregoing Ordinance No. was duly and regularly passed and adopted by the Council of the City of Burbank at its regular meeting held on the day of, 2017, by the following vote: AYES: NOES: ABSENT: I further certify that said Synopsis was published as required by law in a newspaper of general circulation in the City of Burbank, California on the day of, Zizette Mullins, MMC, City Clerk Exhibit A- 12

13 EXHIBIT 1 Amendment to B.M.C The Cannabis Uses section of Section (Uses in All Zones (Except Residential Zones)) is amended and restated as follows: LAND USE C- 2 C- 3 C- 4 M- 1 M- 2 MDM- 1 MDC- 2 MDC- 3 MDC- 4 N B GO RC C- R RB P BCC- 1 BCC- 2 BCC- 3 BCC M MPC- 1 MPC- 2 MPC- 3 OS A P RR AD CANNABIS USES Cannabis Delivery Commercial Cannabis Activities Cultivation Retailer Exhibit A- 13