CITY OF CENTENNIAL, COLORADO ORDINANCE NO O-10

Transcription

1 CITY OF CENTENNIAL, COLORADO ORDINANCE NO O-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CENTENNIAL, COLORADO ESTABLISHING A TEMPORARY MORATORIUM ON THE OPERATION OF MARIJUANA CULTIVATION FACILITIES, MARIJUANA PRODUCT MANUFACTURING FACILITIES, MARIJUANA TESTING FACILITIES, RETAIL MARIJUANA STORES, AND MARIJUANA CLUBS, AND AMENDING TITLE 6 OF THE CENTENNIAL MUNICIPAL CODE TO ADD A NEW ARTICLE 5 CONCERNING ASPECTS OF MARIJUANA, REGULATING THE MANNER IN WHICH MARIJUANA IS GROWN FOR PERSONAL USE, PROHIBITING THE OPERATION OF CERTAIN MARIJUANA ENTERPRISES, AND PROHIBITING MARIJUANA ON CITY OWNED OR LEASED PROPERTY WHEREAS, the City of Centennial is a home rule municipal corporation created and organized pursuant to Article 20 of the Colorado Constitution and the Charter of the City of Centennial; and WHEREAS, by virtue of Article 20 of the Colorado Constitution, and as further authorized by state law, including, but not limited to, Sections and of the Colorado Revised Statutes, the City of Centennial has broad authority to exercise its police powers to promote and protect the health, safety, and welfare of the community and its citizens; and WHEREAS, pursuant to Section of the Colorado Revised Statutes, such police powers include the power to regulate the location and use of land within the community for trade, industry, or other purposes; and WHEREAS, Section of the Colorado Revised Statutes grants home rule cities the authority to plan for and regulate the planned and orderly use of land on the basis of the impact thereof on the community; and WHEREAS, the City possesses the power and authority to impose a temporary suspension and delay in the acceptance and processing of certain applications and approvals in order to study all factors impacting the land use scheme and to develop regulations; and WHEREAS, planning, land use, and general business regulation are well-established as purely matters of local concern; and WHEREAS, the City of Centennial is additionally authorized to manage and control all City owned or leased property; WHEREAS, on November 6, 2012 Colorado voters approved Amendment 64, Personal Use and Regulation of Marijuana, which adds a new Section 16 to Article XVIII of the Colorado Constitution; and

2 Page 2 of 11 WHEREAS, pursuant to Amendment 64, a locality, defined to include a municipality, may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance; and WHEREAS, pursuant to Amendment 64, the City may also prohibit or otherwise regulate the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in City owned or leased property; and WHEREAS, the City Council previously enacted Ordinance 2011-O-13 prohibiting medical marijuana businesses in the City and regulating the manner in which medical marijuana is grown within a primary residence by a patient or primary care-giver; and WHEREAS, Amendment 64 requires the State Department of Revenue to develop a state regulatory program for marijuana by July 1, 2013; and WHEREAS, the City Council instructs City staff to review state regulatory provisions, when available, and assemble information about best practices used by other communities pertaining to marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, and retail marijuana stores and thereafter report to City Council such information as deemed appropriate; and WHEREAS, the City Council finds and determines that a moratorium on commercial marijuana establishments will allow City staff and City Council the time to investigate the City s ability to permanently regulate marijuana establishments, and to consider and potentially develop appropriate regulations as directed by the City Council; and WHEREAS, pursuant to Ordinance 2011-O-13 pertaining to medical marijuana, the City Council has carefully considered the manner in which marijuana is cultivated within residential dwellings in order to assure the safety of the residents of the dwelling and the safety of the surrounding neighborhood; and WHEREAS, the City Council also recognized the negative impacts of possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in City owned or leased property; and WHEREAS, the City Council has additionally considered the potential for marijuana enterprises not specifically referenced in Amendment 64 and operating outside any City licensing or permitting scheme which sell or dispense marijuana and marijuana products such as vending machines; and WHEREAS, the City Council hereby determines that: (1) temporarily suspending the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, retail marijuana stores, and marijuana clubs; (2) regulating the manner in which marijuana is grown for personal use; (3) prohibiting marijuana on City owned or leased property; and (4) prohibiting the operation of marijuana enterprises within the City to be in the best interests of the health, safety and welfare of the community and its citizens.

3 Page 3 of 11 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CENTENNIAL, COLORADO, ORDAINS: Section 1. Incorporation of Recitals. The foregoing recitals are hereby affirmed and incorporated herein by this reference as findings of the City Council. Section 2. Temporary Suspension and Delay Enacted. Effective as of September 30, 2013, the City of Centennial hereby imposes a temporary suspension and delay in the acceptance, processing, and approval of all applications for any City of Centennial permit, license, or any other application pertaining to the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, retail marijuana stores, and marijuana clubs (collectively marijuana establishments ). This temporary suspension and delay shall automatically terminate at midnight on September 30, 2014, unless terminated earlier by the City Council or extended in its duration by the enactment of another ordinance. This Ordinance and the temporary suspension and delay imposed hereby shall be self-executing without further action by the City or its City Council. Section 3. Amendments to Title 6 of the Municipal Code, titled Business Licenses, Permits and Regulations. Title 6 of the Municipal Code is hereby amended by the addition of a new Article 5 titled Marijuana to read in its entirety as follows: ARTICLE 5 Marijuana Division 1 General Sec Purpose. The purpose of this Article is to: (a) (b) (c) Promote the general public welfare and safety throughout the City of Centennial by regulating the manner in which marijuana is grown for personal use, prohibiting marijuana on City owned or leased property, and prohibiting the location and operation of marijuana enterprises such as vending machines dispensing marijuana and/or marijuana products; and Implement the local authority conferred to the City of Centennial by Article XVIII, Section 16 of the Colorado Constitution; and Supplement, through regulation of matters of local concern as authorized by Article XX of the Colorado Constitution and state law, the provisions of Article XVIII, Section 16 of the Colorado Constitution. However, neither this Article nor its adoption, implementation, or enforcement shall be construed as an intent of the City, its elected officials, or its employees or contractors to violate federal law, including, but not limited to, the Controlled Substances Act of 1970, as amended, nor shall such adoption, implementation, or enforcement be construed as acquiescence or

4 Page 4 of 11 conspiracy by the City, its elected officials, or its employees to violate such federal law. Sec Definitions. The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this Section: City Owned or Leased Property means those buildings, parking lots, facilities, trails, open space, and public parks and all walkways and sidewalks within and adjacent to buildings, parking lots, facilities, trails, open space, and public parks which are owned or leased by the City of Centennial. City Owned or Leased Property shall not include public highways, streets, roads, or rights-of-way, and those sidewalks within public rights-of-way. Contiguous, in terms of determining the area devoted to the growing, cultivating, manufacturing, preparing, processing, or packaging of Marijuana and Marijuana Plants, means an uninterrupted expanse of space on the same floor or level of the Primary Residence that can be measured by framing the area with four (4) or more continuous and connected straight lines. The space within a single room which is defined by permanent perimeter walls is contiguous; the space within adjoining rooms divided by a permanent wall or permanent structure but accessible via a common doorway or connected by a common hallway is contiguous; however, nonadjacent spaces separated by two (2) or more permanent walls or separated by floors or levels of the building are not contiguous. Enclosed Space means within a Primary Residence having a roof and all sides closed to the weather and locked to prevent unauthorized entry. Lot means that real property around the Primary Residence and the buildings thereon that are commonly used for domestic and residential purposes. Marijuana means all parts of the plant of the genus 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 its resin, including marijuana concentrate. Marijuana does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. Marijuana Club means any place of private assembly for the purpose of inviting members and their guests to use or consume marijuana and/or marijuana products on the premises of any commercial, office, or industrial zoned property except for those spaces which are occupied in accordance with the City of Centennial s building codes governing residential use. Marijuana Cultivation Facility means an entity licensed to cultivate, prepare, and package marijuana and sell marijuana to retail marijuana stores, to marijuana product manufacturing facilities, and to other marijuana cultivation facilities, but not to consumers. Marijuana Enterprise means any commercial operation, facility, machine or business, which does not require for lawful operation any City application or City-approved permit, and which

5 Page 5 of 11 sells or dispenses marijuana or marijuana products, including but not limited to, marijuana or marijuana product vending machines. Marijuana Establishment means a marijuana cultivation facility, a marijuana testing facility, a marijuana product manufacturing facility, or a retail marijuana store. For the purposes of this Article, marijuana establishments shall also include marijuana clubs. Marijuana Plants mean marijuana plants, seedlings or any part thereof in a living condition that are lawfully cultivated, produced, possessed or processed pursuant to the Colorado Constitution and other applicable laws or regulations. Marijuana Product Manufacturing Facility means an entity licensed to purchase marijuana; manufacture, prepare, and package marijuana products; and sell marijuana and marijuana products to other marijuana product manufacturing facilities and to retail marijuana stores, but not to consumers. Marijuana Products means concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures. Marijuana Testing Facility means an entity licensed to analyze and certify the safety and potency of marijuana. Primary Residence means the place that a person, by custom and practice, makes his or her principal domicile and address and to which the person intends to return, following any temporary absence, such as vacation. Residence is evidenced by actual daily physical presence, use and occupancy of the Primary Residence and the use of the residential address for domestic purposes, such as, but not limited to, slumber, preparation of and partaking of meals, regular mail delivery, vehicle and voter registration or credit, water and utility billing. A person shall have only one (1) Primary Residence. A Primary Residence shall not include accessory buildings. Retail Marijuana Store means an entity licensed to purchase marijuana from marijuana cultivation facilities and marijuana and marijuana products from marijuana product manufacturing facilities and to sell marijuana and marijuana products to consumers. Sec Reserved. Sec General requirements. Division 2 Marijuana Establishments Division 3 Marijuana Grown for Personal Use (a) The growing, cultivating, manufacturing, preparing, processing, or packaging of Marijuana or Marijuana Products within any commercial, office or industrial zoned property shall be a commercial or industrial use subject to the issuance of a state and local marijuana permit or license as a

6 Page 6 of 11 Marijuana Cultivation Facility or Marijuana Product Manufacturing Facility in accordance with applicable state and local laws. (b) (c) (d) (e) (f) (g) (h) (i) It is unlawful to grow, cultivate, manufacture, prepare, process, or package Marijuana or Marijuana Products for personal use anywhere in the City other than an Enclosed Space within a Primary Residence which is not open or public. It is unlawful to make Marijuana grown, cultivated, manufactured, prepared, processed, or packaged for personal use available for sale in any manner. The growing, cultivating, manufacturing, preparing, processing, or packaging of Marijuana or Marijuana Products shall fully comply with all applicable provisions of Colorado law, this Article, and all applicable requirements of all City of Centennial ordinances, resolutions, and regulations including, but not limited to, the Centennial Land Development Code, building and safety codes, and sales and use tax codes, as may be amended. Marijuana or Marijuana Products may not be grown, cultivated, manufactured, prepared, processed, or packaged within a garage, whether attached or detached, or other structure designed or intended for the keeping or storage of vehicles, equipment, or goods; and Marijuana or Marijuana Products may not be grown, cultivated, manufactured, prepared, processed, or packaged within any common area of a multi-family or single-family attached residential property; and Marijuana may not be grown, cultivated, manufactured, prepared, processed, or packaged in the yard, lot, or other area or structure located outside of the Primary Residence, including but not limited to outdoor gardens, ancillary or accessory buildings, greenhouses, sheds, or storage units; and Marijuana or Marijuana Products may not be produced or processed with the use of chemical(s) for the purposes of enhancing, concentrating, or extracting tetrahydrocannabinol (THC) from Marijuana Plants; and The area of a Primary Residence devoted to the growing cultivating, manufacturing, preparing, processing or packaging of Marijuana or Marijuana Products, including the keeping, storage, and maintenance of all materials, supplies, tools, equipment, and paraphernalia associated with the same, does not exceed the following: a. Within a single-family detached dwelling unit, a maximum Contiguous one hundred fifty (150) square foot area; or

7 Page 7 of 11 b. Within any residential structure other than a single-family detached dwelling unit, a maximum Contiguous one hundred (100) square foot area. Sec Maximum number of Marijuana Plants. It shall be unlawful for any person residing at a Primary Residence to possess, grow, cultivate, manufacture, prepare, process, package, or transport more than six (6) Marijuana Plants, with more than three (3) being mature, flowering plants. In no event shall the maximum number of Marijuana Plants within any Primary Residence exceed thirty (30) Marijuana Plants regardless of size or stage of growth or the number of residents lawfully allowed to reside at such Primary Residence and possess and grow Marijuana for personal use. Sec Exterior impacts unlawful. (a) It shall be unlawful to grow, cultivate, manufacture, prepare, process, or package Marijuana Plants within a Primary Residence in such a manner as to be perceptible from the exterior of the Primary Residence by means including, but not limited to: (1) Common visual observation, including any form of signage; (2) Odors, smells, fragrances, or other olfactory stimulus generated by the cultivation, production, possession, or processing of Marijuana Plants; or (3) Light pollution, glare, or brightness of artificial illumination associated with the cultivation production, possession, or processing of Marijuana Plants. Sec Private covenants not affected. This Article is not intended to impair and does not supersede or override provisions of any lawful privately imposed contracts, covenants, conditions, or restrictions that are more restrictive regarding the use of a Primary Residence for the cultivation, production, possession, and processing of Marijuana Plants. Nothing in this Article is intended to defer to or to permit privately imposed contracts, covenants, conditions, or restrictions that would authorize any activity or action prohibited or regulated by this Article. The City shall not enforce private covenants except to the extent specifically provided by law. Division 4 Marijuana on or in City Owned or Leased Property Sec Marijuana on or in City Owned or Leased Property prohibited. It shall be unlawful to possess, consume, use, display, transfer, distribute, sell, transport, or grow Marijuana on or in City Owned or Leased Property.

8 Page 8 of 11 Division 5 Marijuana Enterprises Sec Marijuana Enterprises prohibited. It shall be unlawful for any Marijuana Enterprise not otherwise subject to any City application or City-approved permit, including but not limited to Marijuana or Marijuana Product vending machines, to be located or operated in the City of Centennial. Sec Penalties for violation. Division 6 Enforcement (a) In addition to any other penalties that may exist under state, federal and local laws, any person charged with a violation of this Article, upon conviction or plea of nolo contendre thereof, shall be punished as follows: (1) For an offense involving the growing, cultivating, manufacturing, preparing, processing, packaging, possessing, or transporting of one (1) or more Marijuana Plants in excess of the maximum number of Marijuana Plants permitted by this Article, such fine shall be not less than seven-hundred fifty dollars ($750.00) and not more than one thousand dollars ($1,000.00) for each Marijuana Plant grown, cultivated, manufactured, prepared, processed, packaged, possessed, or transported in excess of such maximum; or (2) For any other violation of this Article not set forth in subparagraph (1) above, such fine shall be not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000.00) for each offense. (b) (c) Each person violating any provision of this Article shall be guilty of a separate offense for each and every day during any portion of which any violation of this Article is committed, continued, or permitted by such person. The Centennial Municipal Court shall retain the discretion to suspend, reduce, or impose a lesser fine upon recommendation of the Municipal Court prosecutor pursuant to a mutually accepted plea agreement with the defendant. Sec Search warrants authorized. (a) The City Council declares that a violation of this Article involves a serious threat to public safety or order within the meaning of Rule 241(a)(1) of the Colorado Municipal Court Rules of Procedure.

9 Page 9 of 11 (b) (c) (d) (e) If the owner or occupant of the premises denies officials of the City s Code Compliance, Building Division, law enforcement agency, and/or other authorized official permission to inspect the residential structure, authorized law enforcement personnel may request the Centennial Municipal Court to issue a search warrant for the inspection of the premises pursuant to the procedure and standards as set forth in Rule 241 of the Colorado Municipal Court Rules of Procedure. The Centennial Municipal Court may issue a search warrant authorizing officials of the City s Code Compliance, Building Division, law enforcement agency, and/or other authorized official to inspect a residential structure for the growing of Marijuana Plants in accordance with Rule 241(b) of the Colorado Municipal Court Rules of Procedure. Any search warrant issued pursuant to this Article shall fully comply with the applicable provisions of Rule 241 of the Colorado Municipal Court Rules of Procedure. The Centennial Municipal Court may impose such conditions on a search warrant as may be necessary to protect the private property rights of the owner of the premises to be inspected or to otherwise ensure that the warrant complies with applicable law. It shall be unlawful and a minor offense for any owner or occupant to deny officials of the City s Code Compliance, Building Division, law enforcement agency, and/or other authorized official access to the property owned or occupied by such owner or occupant if the authorized person presents a warrant issued pursuant to this Article. Sec Violations constitute nuisances. In addition to any other lawful method of enforcement which methods shall not be deemed exclusive, a violation of this Article is declared to be a public nuisance that may be abated as provided in Chapter 7, Article 1 of the Centennial Municipal Code. Sec Most stringent law or construction applies. Nothing in this Article is intended to supersede or modify applicable provisions of state law concerning the same subject. To the extent this Article is interpreted to authorize an action or activity otherwise prohibited by state law, such authorization shall mean such action or activity is not prohibited by local law. To the extent that a provision of state law is or becomes more stringent than a provision of this Article, the most stringent requirement or construction shall govern or apply.

10 Page 10 of 11 Sec Provisions inapplicable. Nothing in this Article shall be applicable to the provisions of Article 6 of Chapter 6 entitled Medical Marijuana and nothing in Article 6 of Chapter 6 shall be applicable to this Article. Section 4. Severability. If any provision of this Ordinance should be found by a court of competent jurisdiction to be invalid, such invalidity shall not affect the remaining portions or applications of this Ordinance that can be given effect without the invalid portion, provided that such remaining portions or applications of this Ordinance are not determined by the court to be inoperable. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, despite the fact that any one or more section, subsection, sentence, clause, phrase, or portion would be declared invalid or unconstitutional. Section 5. Codification Amendments. The codifier of the City s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Centennial Municipal Code. Section 6. Effective Date. This Ordinance shall take effect thirty (30) days after publication following final passage. Section 7. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is promulgated pursuant to the City s home rule authority and under the general police power of the City of Centennial, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that this Ordinance bears a rational relation to the proper legislative objective sought to be obtained. INTRODUCED, READ, AND ORDERED PUBLISHED BY THE CITY COUNCIL OF THE CITY OF CENTENNIAL, COLORADO, UPON A MOTION DULY MADE, SECONDED AND PASSED AT ITS REGULAR MEETING HELD ON THE 1 ST DAY OF APRIL, CITY OF CENTENNIAL Approved as to Form: By: Cathy A. Noon, Mayor For City Attorney s Office

11 Page 11 of 11 I hereby certify that the above Ordinance was introduced to the City Council of the City of Centennial at its meeting of April 1, 2013 and ordered published one time by title only in The Villager newspaper on April 4, 2013, and in full on the City web site in accordance with Section of the Municipal Code. SEAL ATTEST: By: City Clerk or Deputy City Clerk FINALLY ADOPTED, PASSED, APPROVED WITH AMENDMENTS, IF ANY, AND ORDERED PUBLISHED BY TITLE ONLY, IN THE VILLAGER NEWSPAPER AND IN FULL ON THE CITY WEB SITE IN ACCORDANCE WITH SECTION OF THE MUNICIPAL CODE BY THE CITY COUNCIL OF THE CITY OF CENTENNIAL, COLORADO, UPON A MOTION DULY MADE, SECONDED AND PASSED AT ITS MEETING HELD ON THE DAY OF, 2013, BY A VOTE OF IN FAVOR AND AGAINST. CITY OF CENTENNIAL By: Cathy A. Noon, Mayor I hereby certify that the above Ordinance was finally adopted by the City Council of the City of Centennial at its meeting of, 2013, and ordered published by title only, one time by The Villager newspaper on, 2013 and in full on the City web site in accordance with Section of the Municipal Code. SEAL ATTEST: By: City Clerk or Deputy City Clerk Published in full on the City of Centennial website, on Friday, March 29, /s/ Brenda J. Madison, MMC, City Clerk