REPORT to the Mayor and Members of the City Council from the City Manager

CITY OF PALMDALE REPORT to the Mayor and Members of the City Council from the City Manager DATE: SUBJECT: ISSUING DEPARTMENT: January 6, 2016 Proposed Ordinance No. 1480, Repealing and Restating Chapter 5.05 of the Palmdale Municipal Code Regarding Medical Marijuana Office of the City Attorney SUMMARY Issues: Shall the City Council Approve Proposed Ordinance No. 1480, Repealing and Restating Chapter 5.05 of the Palmdale Municipal Code Regarding Medical Marijuana? Recommendation: Staff recommends that the City Council receive public testimony and adopt Proposed Ordinance 1480. Fiscal Impact: None. DISCUSSION Background In 1996, the People of the State of California approved Proposition 215, which was

Staff Report: Ordinance No. 1480 January 6, 2016 Page 2 of 4 codified as California Health and Safety Code & 11362.5 and entitled the Compassionate Use Act of 1996 ("Compassionate Use Act"). The Compassionate Use Act made certain provisions of California law prohibiting possession and cultivation of marijuana inapplicable to a qualified patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical use of the patient upon the recommendation of a physician, and prohibiting the criminal prosecution or punishment of a physician for having recommended marijuana to a patient for medical purposes. The~.eafter, the Legislatur~.of the Sta.te of California enacted Senate Bill 420 ("Medical Ma.riJuana ~rogram"), cod1f1ed as California Health an~ Safety Code_ 11362.1 ~t s_eq., which required the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary caregivers, and prohibited the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuana. In 2015, the Legislature of the State of California enacted Senate Bill 643 and Assembly Bills 266 and 243 (collectively called the "Medical Marijuana Regulation and Safety Act") to establish a comprehensive statewide regulatory scheme for the regulation of medical marijuana. Notwithstanding the passage of the Compassionate Use Act, the Medical Marijuana Program, and the Medical Marijuana Regulation and Safety Act, the cultivation, possession, and use of marijuana is prohibited by the Controlled Substances Act, 21 U.S.C. 841. Further, neither the Compassionate Use Act nor the Medical Marijuana Program require cities to allow medical marijuana land uses such as cultivation, processing, and/or distribution of medical marijuana. This issue has been extensively litigated over the last several years and the California Supreme Court has upheld a city's authority to ban medical marijuana land uses in City of Riverside v. Inland Empire Patients Health and Wellness Center. While the Medical Marijuana Regulation and Safety Act does not supersede or limit a city's authority to ban medical marijuana land uses; its adoption has forced cities across the state to quickly review and, where necessary, make changes to their municipal codes. Medical Marijuana Dispensaries In 2008, the City of Palmdale adopted Ordinance 1359, which expressly prohibited medical marijuana dispensaries in the City of Palmdale. In banning medical marijuana dispensaries,. the City Council cited reported negative secondary effects in communities, which effects included, illegal drug activity and drug sales in the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who have obtained marijuana from a dispensary; persons acquiring marijuana from a dispensary and then sellin~ it to a non-qualified person; burglaries and robberies; and an increase in vacancies 1n the commercial areas in the vicinity of such businesses. Despite banning dispensaries, the City of Palmdale experienced these issues first hand in November 2013, as a robbery at an illegal medical marijuana dispensary on Sierra Highway (in the unincorporated County of Los Angeles) turned into a shootout between robbers and the dispensary's security guard. Although proposed Ordinance 1480 makes several changes to Chapter 5.05 of the Palmdale Municipal Code, medical marijuana dispensaries would continue to be banned in the City of Palmdale.

Staff Report: Ordinance No. 1480 January 6, 2016 Page 3 of 4 Medical Marijuana Cultivation Many cities in California have reported negative secondary effects associated with the cultivation of marijuana, including improper and dangerous electrical alterations, fires, inadequate ventilation, offensive odors, illegal sales and distribution at indoor cultivation sites. City staff has experienced many of these issues at the illegal indoor cultivation sites that have been discovered in the city. Specifically, the Building Official has observed illegal and dangerous electrical and ventilation alterations. One such electrical alteration caused a structure fire. Although the Palmdale Municipal Code and specifically the City's Zonin9 Ordinance is silent on the issue of marijuana cultivation, cultivation of marijuana in the City of Palmdale is prohibited. The Palmdale Zoning Ordinance is a "permissive" zoning code whereby any use not specifically enumerated in the Zoning Ordinance is presumptively prohibited. 1 Cultivation, as well as other medical marijuana land uses are not specifically enumerated in the Zoning Ordinance and are, therefore, prohibited in the City of Palmdale. The Medical Marijuana Regulation and Safety Act requires a person or entity wishing to cultivate marijuana to obtain a license or permit from both the State of California and the city in which the cultivation will occur. 2 However, "[i]f a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016," the State of California shqjl be the sole licensing authority for medical marijuana cultivation applicants in the city. While the City's "permissive zoning" code should prohibit the State of California from issuing a license to cultivate marijuana in the City of Palmdale, Staff is recommending that the municipal code be amended to specifically prohibit marijuana cultivation to leave no doubt that such activity is prohibited. Proposed Ordinance 1480 would expressly prohibit the cultivation of marijuana in the City of Palmdale. Proposed Ordinance 1480, if adopted, would go into effect prior to the March 2016 deadline imposed by the State of California, and the City of Palmdale would retain local control over the cultivation of medical marijuana. Medical Marijuana Delivery The Medical Marijuana Regulation and Safety Act authorizes the delivery of medical marijuana by licensed medical marijuana dispensaries unless deliveries are specifically prohibited within a city by local ordinance. Proposed Ordinance 1480 would expressly prohibit the delivery of medical marijuana in the City of Palmdale. 1 See Section 10.05(A)(3) 2 California Health & Safety Code 11362.777(b)(1) 3 California Health & Safety Code 11362.777(c)(4)

Staff Report: Ordinance No. 1480 January 6, 2016 Page 4 of 4 Public Nuisance Based upon the negative secondary effects identified above, Staff recommends that the City Council make a finding, to protect the public health, safety and welfare, that property used for the cultivation, processing and distribution of medical marijuana be declared a public nuisance. Proposed Ordinance 1480 would make violations of Chapter 5.05 a public nuisance. CONCLUSION Staff recommends that the City Council receive public testimony and adopt Proposed Ordinance 1480. Submitted by: Reviewed by:,,, )_0 -'-----~~~~- Noel Doran Assistant City Attorney Wm. Mat ew Ditzhazy City Attorney Attachment: Proposed Ordinance No. 1480

CITY OF PALMDALE COUNTY OF LOS ANGELES, CALIFORNIA ORDINANCE NO. 1480 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALMDALE REPEALING AND RESTATING CHAPTER 5.05 OF THE PALMDALE MUNICIPAL CODE REGARDING MEDICAL MARIJUANA WHEREAS, the People of the State of California approved Proposition 215, which was codified as California Health and Safety Code 11362.5 and entitled the Compassionate Use Act of 1996 ("the Compassionate Use Act"); and WHEREAS, the Compassionate Use Act made certain provisions of California law prohibiting possession and cultivation of marijuana inapplicable to a qualified patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical use of the patient upon the recommendation of a physician, and prohibiting the criminal prosecution or punishment of a physician for ng recommended marijuana to a patient for medical purposes; and WHEREAS, thereafter, the Legi a r :0f the State of California enacted Senate Bill 420 (the "Medical Marijuana P. j, codified as California Health and Safety Code 11362.7 et seq., which req ed the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary caregivers, and prohibits the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuana; and WHEREAS, in 2015, the Legislature of the State of California enacted Senate Bill 643 and Assembly Bills 266 and 243 (collectively called the "Medical Marijuana Regulation and Safety Act") to establish a comprehensive statewide regulatory scheme for the regulation of medical marijuana; and WHEREAS, notwithstanding the passage of the Compassionate Use Act, the Medical Marijuana Program, and the Medical Marijuana Regulation and Safety Act, the cultivation, possession, and use of marijuana is prohibited by the Controlled Substances Act, 21U.S.C. 841; and WHEREAS, neither the Compassionate Use Act nor the Medical Marijuana Program require cities to allow medical marijuana land uses such as cultivation, processing, and/or distributing medical marijuana; and

Ordinance No. 1480 Page 2 of 6 WHEREAS, the California Supreme Court issued a decision in City of Riverside v. Inland Empire Patients Health and Wellness Center upholding a city's authority to ban medical marijuana land uses; and WHEREAS, the Medical Marijuana Regulation and Safety Act does not supersede or limit a city's authority to ban medical marijuana land uses; and, WHEREAS, the Palmdale Zoning Ordinance is.a "permissive" zoning code whereby, pursuant to Section 10.05(A)(3) thereof, any use not specifically enumerated in the Zoning Ordinance is presumptively prohibited; and WHEREAS, medical marijuana land uses such as cultivating, processing, and/or distributing medical marijuana are not specifically enumerated in the Zoning Ordinance and are, therefore, prohibited in the City of Palmdale; and WHEREAS, in 2008, the City of Palmdale expressly prohibited medical marijuana dispensaries, citing reported negative secondary effects in communities, which effects included, illegal drug activity and drug sales in the vi cjp 1 ~y of dispensaries; robbery of persons leaving dispensaries; driving under th. infl 1~e' of a controlled substance by persons who have obtained marijuana fi:;a a, s nsary; persons acquiring marijuana from a dispensary and then selling it t -qualified person; burglaries and robberies; and an increase in vacancies in the co mercial areas in the vicinity of such businesses; and WHEREAS, many cities in California have reported negative effects associated with the indoor cultivation of marijuana, including, improper and dangerous electrical alterations, inadequate ventilation, offensive odors, illegal sales and distribution at indoor cultivation sites; and WHEREAS, marijuana grown outdoors can produce a strong odor, offensive to many people, that can be detectible far beyond the property boundaries of the cultivation site; and WHEREAS, the Medical Marijuana Regulation and Safety Act requires a person or entity wishing to cultivate marijuana to obtain a license or permit from both the state of California and the city in which the cultivation will occur (California Health & Safety Code 11362.777(b)(1 )); however, "[i]f a city, county, or city and county does not have land use regulations or ordinances regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under principles of permissive zoning, or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016," the state of California shall be the sole licensing authority for medical

Ordinance No. 1480 Page 3 of 6 marijuana cultivation applicants in 11362.777(c)(4)); and the city (California Health & Safety Code WHEREAS, the City Council of the City of Palmdale desires to retain local control over the cultivation of medical marijuana within its city limits by expressly prohibiting the cultivation of marijuana in the city of Palmdale; and WHEREAS, the Medical Marijuana Regulation and Safety Act authorizes the delivery of medical marijuana by licensed medical marijuana dispensaries unless deliveries are specifically prohibited within a city, by local ordinance; and WHEREAS, the City Council of the City of Palr;ndale desires to expressly prohibit the delivery of medical marijuana in the city of Palmdale; and WHEREAS, based on the findings a y Council of th e City of Palmdale finds that the cultivation, proc, 1 d' distribution of medical marijuana in the City poses a current and immediat threat to the public health, safety, and welfare in the City due to the negative impacts of such activities, and as such declares property used for the cultivation, processing and distribution of medical marijuana to be a public nuisance. THE CITY COUNCIL OF THE CITY OF PALMDALE DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 5.05 "Medical Marijuana Dispensaries" is hereby repealed in its entirety. SECTION 2. Chapter 5.05 "Medical Marijuana" is hereby added to the Palmdale Municipal Code to read as follows: Sections: Chapter 5.05 Medical Marijuana 5.05.010 5.05.020 5.05.030 5.05.040 5.05.050 Purpose and findings. Definitions. Medical marijuana dispensaries prohibited. Medical marijuana delivery prohibited. Medical marijuana cultivation prohibited.

Ordinance No. 1480 Page 4 of 6 5.05.060 5.05.070 5.05.080 Use or activity prohibited by state or federal law. Public Nuisance. Enforcement. 5.05.010 Purpose and findings. A. The City Council finds that prohibitions on commercial marijuana activities, including, but not limited to, cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, delivery and sale of medical marijuana, are necessary for the preservation and protection of the public health, safety and welfare of the City and its citizenry. The City of Palmdale is authorized by its Charter and state law to prohibit such activities. B. The City Council finds that it is the intent of the City Council, in adopting these prohibitions, to retain local control over commercial marijuana activities in general, and cultivation, delivery, and sales specifically. C. The City Council finds that this chapter expressly prohibits the cultivation, delivery, and sale of marijuana within the City. D. It is the intent and desire of the City Council that the State 9 California Department of Food and Agriculture not issue a state license to culti11, cture, test, dispense, sell, or distribute medical marijuana within It[hJ ~M1 1:: ~l.q~0j ~ 5.05.020 Definitions. Except as otherwis expressly set forth herein, the following words and terms as used in this chapter shall have the following meanings:. A. "Deliver" or "Delivery" means.the commercial transfer of Medical Marijuana from a dispensary to a primary caregiver or qualified patient as defined in Section 11362. 7 of the California Health and Safety Code, or a testing laboratory. "Delivery" also includes the use by a Dispensary of any technology platform owned and controlled by the Dispensary that enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a Medical Marijuana Dispensary of Medical Marijuana. B. "Medical Marijuana" is marijuana, either raw or processed, used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of California Health and Safety Code 11362.7. "Medical Marijuana" also includes medical cannabis as defined in California Business & Professions Code 19300.5(ag). C. "Medical Marijuana Dispensary" or "Dispensary" means a facility where Medical Marijuana, Medical Marijuana products, or devices for the use of Medical Marijuana or Medical Marijuana products are offered, either individually or in any combination, for retail sale, including an establishment that delivers Medical Marijuana and Medical Marijuana products as part of a retail sale. 5.05.030 Medical marijuana dispensaries prohibited. It shall be unlawful for any person or entity to own, manage, conduct, or operate any Medical Marijuana Dispensary or to

Ordinance No. 1480 Page 5 of 6 participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Palmdale. 5.05.040 Medical marijuana delivery prohibited. It shall be unlawful for any person or entity to Deliver Medical Marijuana in the City of Palmdale. 5.05.050 Medical marijuana cultivation prohibited. A. It shall be unlawful for any person or entity to own, manage, conduct, or operate any facility where Medical Marijuana is planted, grown, harvested, dried, cured, graded, or trimmed, or that does all or any combination of those activities. This section shall not apply to a primary caregiver or qualified patient as defined in Section 11362. 7 of the California Health and Safety Code, who cultivates marijuana for the personal medical purposes of the qualified patient. B. The City of Palmdale shall not issue a license to cultivate medical marijuana within the City of Palmdale. C. The California Department of Food and Agriculture may not issue a state license to cultivate Medical Marijuana within the City of Palmdale. 5.05.060 Use or activity prohibited by state or federal law Nothing contained in this chapter shall be deemed to permit or authorize an. -Us br,.,activity which is otherwise prohibited by any state or federal law. 5.05.070 Public nuisance. Any viol ~ "this chapter is hereby declared to be a public nuisance. 5.05.080 Enforcement. Any person violating any of the provisions of this chapter shall be punishable as set forth in Title 1 of this Code. Where the conduct constituting the violation is of a continuing nature, each day that the conduct continues shall be deemed a separate and distinct violation. SECTION 3. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional, or invalid, or ineffective, provided the basic purposes of this Ordinance and the benefits to the City and the public are not substantially impaired. SECTION 4. The City Council finds the approval of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines

Ordinance No. 1480 Page 6 of 6 Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a project under CEQA Regulation Section 15061 (b)(3) because it has no potential for causing a significant effect on the environment. SECTION 5. The City Clerk shall certify to the adoption of this ordinance and shall cause this ordinance to be published or posted as required by law. PASSED, APPROVED and ADOPTED this sixth day of January, 2016 effective on the sixth day of February, 2016 by the following vote: ABSTAIN: _ ABSENT: James C. Ledford, Jr., Mayor ATTEST: APPROVED AS TO FORM: Rebecca J. Smith, City Clerk