CC - Item 5C - Ordinance No. 983 - Second Reading and Adoption Broading the City Ban on Cannabis Facilities, Cultivation, and Deliveries - Municipal Code Amendment 18-04ROSEMEAD CITY COUNCIL
STAFF REPORT
TO:
THE HONORABLE MAYOR AND CITY COUNCIL
FROM:
GLORIA MOLLEDA, CITY MANAGER,,J, �A .
DATE: NOVEMBER 13, 2018
SUBJECT: ORDINANCE NO. 983 — SECOND READING AND ADOPTION:
BROADENING THE CITY'S BAN ON CANNABIS FACILITIES,
CULTIVATION, AND DELIVERIES — MUNICIPAL CODE
AMENDMENT 18-04
SUMMARY
On October 23, 2018 the City Council held a Public Hearing and introduced for first reading, by
title only, Ordinance No. 983 amending Rosemead Municipal Code Sections 1.04.130, 2.44.060,
and 12.44.050; and restate Chapter 17.40 related to prohibiting medical marijuana dispensaries,
marijuana cultivation facilities, and marijuana deliveries.
STAFF RECOMMENDATION
It is recommended that the City Council approve the second reading and adoption of Ordinance
No. 983 by title only, entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AMENDING
SECTIONS 1.04.030, 2.44.060, AND 12.44.050; AND RESTATING CHAPTER
17.40 OF THE ROSEMEAD MUNICIPAL CODE, RELATED TO CANNABIS
FACILITIES, CULTIVATION, AND DELIVERIES
FISCAL IMPACT - None
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Submitted by:
ErickYlIeruaiidez, City Clerk
Attachment A: Ordinance No. 983 AGENDA ITEM NO. 5.0
Attachment A
Ordinance No. 983
ORDINANCE NO. 983
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
AMENDING SECTIONS 1.04.030, 2.44.060, AND 12.44.050; AND
RESTATING CHAPTER 17.40 OF THE ROSEMEAD MUNICIPAL CODE,
RELATED TO CANNABIS FACILITIES, CULTIVATION, AND
DELIVERIES
WHEREAS, Section 17.152.060 of the Rosemead Municipal Code provides the criteria
for a Zoning Code Amendment; and
WHEREAS, Sections 65854 and 65855 of the California Government Code and Section
17.152.040 of the Rosemead Municipal Code authorizes the Planning Commission to review and
make recommendations to the City Council regarding amendments to the City's Zoning Code; and
WHEREAS, Section 17.152.050 of the Rosemead Municipal Code authorizes the City
Council to approve amendments to the City's Zoning Code; and
WHEREAS, adoption of Ordinance 983 Rosemead Municipal Code Sections 1.04.130,
2.44.060, and 12.44.050; and restate Chapter 17.40 related to prohibiting medical marijuana
dispensaries, marijuana cultivation facilities, and marijuana deliveries; and
WHEREAS, on September 17, 2018, the Planning Commission held a duly noticed Public
Hearing and recommended approval of Municipal Code Amendment 18-04 to the City Council;
and
WHEREAS, on October 11, 2018, a notice was published in the Rosemead Reader and
notices were posted in six public locations, specifying the availability of the proposal, and the date,
time, and location of the public hearing for Municipal Code Amendment 18-04; and
WHEREAS, on October 23, 2018, the City Council held a duly noticed and advertised
Public Hearing to receive oral and written testimony relative to Municipal Code Amendment
18-04; and
WHEREAS, the City Council has sufficiently considered all testimony presented to them
in order to make the following determination.
THE CITY COUNCIL OF THE CITY OF ROSEMEAD HEREBY ORDAINS AS
FOLLOWS:
SECTION 1. The City Council finds and declares as follows:
A. As set forth in Rosemead Municipal Code Section 17.40.020, the City of Rosemead
prohibits all medical marijuana dispensaries and marijuana cultivation facilities. The term
"marijuana cultivation facility" includes any property where marijuana cultivation occurs.
B. On October 9, 2015, Assembly Bills 243 and 266 and Senate Bill 643 (collectively, the
"Medical Cannabis Regulation and Safety Act" or "MCRSA") were enacted to create a state
regulatory and licensing system governing the cultivation, testing, and distribution of medical
marijuana, the manufacturing of medical marijuana products, and physician recommendations for
medical marijuana. MCRSA expressly preserved local control over medical marijuana facilities
and land uses, including the authority to prohibit medical marijuana facilities and cultivation
completely.
C. On November 8, 2016, the voters of the State of California approved Proposition 64,
entitled the "Control, Regulate and Tax Adult Use of Marijuana Act' (the "AVMA"), which
legalizes and regulates the adult use of non-medical marijuana (commonly referred to as
"recreational marijuana") in California.
D. The AUMA legalized adult -use cannabis in California and requires adult -use cannabis
businesses, including cultivators; manufacturers, distributors, retailers, and testing laboratories, to
obtain a state license in order to operate lawfully. Under the AVMA, individuals may possess and
use specified amounts of cannabis and may cultivate up to six cannabis plants per private residence.
Under Health and Safety Code section 11362.2(b), cities may prohibit private outdoor cannabis
cultivation, but may not prohibit completely private indoor cultivation of six cannabis plants or
less. Cities, however, may reasonably regulate private indoor cultivation of six cannabis plants or
less.
E. On June 27, 2017, the Governor signed Senate Bill 94, which repealed MCRSA and
incorporated provisions from MCRSA regarding medical marijuana in the AUMA, so that the
regulations governing both medical and non-medical marijuana were contained under one
regulatory structure. Senate Bill 94 renamed the AUMA as the Medicinal and Adult -Use Cannabis
Regulation and Safety Act ("MAUCRSA"). In addition to consolidating state laws regarding
medical marijuana and adult -use marijuana, Senate Bill 94 introduced more uniform terminology.
Senate Bill 94 revised references in existing law from "marijuana" or "medical marijuana" to
instead refer to "cannabis" or "medicinal cannabis," and revised references from "nonmedical" to
"adult -use".
F. MAUCRSA retains the provisions in MCRSA and the AUMA that granted local
jurisdictions control over whether commercial cannabis activity could occur in a particular
jurisdiction.
G. Specifically, California Business and Professions Code Section 26200 provides that
MAUCRSA is not to be interpreted to supersede or limit the authority of a local jurisdiction to
adopt and enforce local ordinances that completely prohibit the establishment or operation of
cannabis -related businesses within that local jurisdiction.
H. Due to these changes, the City has adopted Ordinance Nos. 969, 971, and 977, which
imposed a moratorium on private marijuana cultivation and non-medical marijuana facilities. This
moratorium is set to expire on December 12, 2018.
I. The City desires to amend Chapter 17.40 of its municipal code to conform to the recent
State law regulations concerning marijuana or, as it is now referred to, cannabis. As a result,
Chapter 17.40 will contain the City's marijuana/cannabis regulations and any existing municipal
code references to medical marijuana dispensaries that are no longer necessary will be repealed as
set forth in this ordinance, if any.
J. In addition, Health and Safety Code Section 11362.3(a)(2) specifies that state law does
not permit any person to smoke cannabis or cannabis products in a location where smoking tobacco
is prohibited. As a result, this ordinance will make amendments to reference existing municipal
code provisions where smoking tobacco is already prohibited and clarify that the smoking
prohibition also applies to cannabis and cannabis products.
SECTION 2. Environmental Findings. The Ordinance is exempt from environmental
review under the California Environmental Quality Act (CEQA) (California Public Resources
Code §§ 21000, et seq., "CEQA") and CEQA regulations, Title 14, Chapter 3: (1) Section
15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment); (2) Section 15060(c)(3) (the activity is not a project as defined in
Section 15378); and (3) Section 15061 (b)(3) (because 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). The City has never allowed any commercial cannabis activity under the City's
municipal code. The proposed ordinance, therefore, maintains the status quo. Because there is no
possibility that this ordinance may have a significant adverse effect on the environment, the
adoption of this ordinance is exempt from CEQA.
SECTION 3. Findings. The City Council HEREBY FINDS AND DETERMINES that
facts do exist to justify approving Municipal Code Amendment 18-04, in accordance with Section
17.152.060 of the Rosemead Municipal Code as follows:
A. The proposed amendment is consistent with the General Plan and any applicable
specific plan;
FINDING: The proposed amendment clarifies that medical cannabis dispensaries,
cannabis cultivation facilities, and cannabis deliveries are prohibited in all zoning districts in the
City. Medical cannabis dispensaries, cannabis cultivation facilities, and cannabis deliveries are
not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment
18-04 maintains the current consistency with the General Plan.
B. The proposed amendment will not be detrimental to the public interest, health, safety,
convenience, or welfare of the City; and
FINDING: The proposed amendment will promote public health, safety, and general
welfare and serve the goals and purposes of Title 17 by clarifying and confirming that medical
cannabis dispensaries, cannabis cultivation facilities, and cannabis deliveries are prohibited in all
zoning districts in the City. The continued prohibition will ensure that none of the negative side
effects of medical cannabis dispensaries, cannabis cultivation facilities, and cannabis deliveries
will negatively impact the general welfare and public health of the City. The amendment does not
authorize any changes to the environment and will have no impacts to properties in the City or
their surrounding environment.
C. The proposed amendment is internally consistent with other applicable provisions of
[the] Zoning Code.
FINDING: The proposed amendment clarifies that medical cannabis dispensaries,
cannabis cultivation facilities, and cannabis deliveries are prohibited in all zoning districts of the
City. Medical cannabis dispensaries, cannabis cultivation facilities, and cannabis deliveries are
not allowed by the current General Plan and Zoning Code. Adopting Municipal Code Amendment
18-04 maintains the current consistency with all other provisions of the Zoning Code.
SECTION 4. Amendment to Section 1.04.130 — Definitions. Section 1.04.130 of the
Rosemead Municipal Code is amended to add a definition for smoking, as follows:
"Smoke" or "Smoking" means engaging in an act that generates smoke, such as possessing
a lighted pipe, a lighted hookah pipe, a lighted cigar, a lighted cigarette, an operating electronic
smoking device, or any other act of smoking as defined in Section 22950.5(c) of the Business &
Professions Code. This also includes smoking cannabis or cannabis products, as set forth in Section
11362.3 of the Health and Safety Code.
SECTION 5. Amendment to Section 2.44.060 — Smoking prohibited in city buildings.
Section 2.44.060 of the Rosemead Municipal Code is amended and restated as follows:
It is unlawful to smoke in the following places:
A. Any city -owned building, including City Hall, the Community Center, Zapopan
Community Center, and park offices;
B. Any city -owned or operated vehicle.
"No Smoking" signs with letters of not less than one inch in height or the international "No
Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red
circle with a red bar across it, shall be clearly, sufficiently and conspicuously posted in every
building or other place where smoking is prohibited by this section.
Violation of this prohibition on smoking shall be an infraction, punishable by a fine of up
to $250.00.
SECTION 6. Amendment to Section 12.44.050 — Prohibition of smoking in public
parks. Section 12.44.050 of the Rosemead Municipal Code is amended and restated as follows:
A. It is unlawful for any person to smoke in or upon any city park, playground, or recreation
center. Such a violation is punishable as an infraction by a fine not exceeding $250.
B. It is unlawful for any person to dispose of lighted or unlighted cigars or cigarettes or
cigarette butts, or any other smoking-related waste, in or upon any city park, playground, or
recreation center. Such a violation is punishable as an infraction by a fine not exceeding $100.00
for a first violation; $200.00 for a second violation; and $500.00 for each additional violation
thereafter.
C. It is unlawful for any person to intimidate, threaten any reprisal, or effect any reprisal,
for the purpose of retaliating against another person who seeks to obtain compliance with this
section."
SECTION 7. Amendment and Restatement of Chapter 17.40. Chapter 17.40 of the
Rosemead Municipal Code is amended and restated in its entirety, as follows:
Chapter 17.40 — Cannabis Facilities, Cultivation, and Deliveries.
17.40.010 - Definitions.
The following words used in this chapter are defined as follows:
"Cannabis" has the meaning set forth in Business and Professions Code Section 26001(f)
and includes all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis
ruderalis, whether growing or not; the seeds thereof; the 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. "Cannabis" also means the separated resin, whether
crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the
plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the
resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable
of germination. "Cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of
the Health and Safety Code.
"Commercial cannabis activity" has the meaning set forth in Business and Professions
Code Section 26001(k), and as that provision may be amended subsequently.
"Commercial cannabis facility" means any building, facility, use, establishment, property,
or location where any person or entity establishes, commences, engages in, conducts, or carries
on, or permits another person or entity to establish, commence, engage in, conduct, or carry on,
any commercial cannabis activity that requires a state license or nonprofit license under Business
5
and Professions Code Sections 26000 and following, including but not limited to cannabis
cultivation, cannabis distribution, cannabis transportation, cannabis storage, manufacturing of
cannabis products, cannabis processing, cannabis deliveries, the sale of any cannabis or cannabis
products, and the operation of a cannabis microbusiness.
"Cultivation" has the meaning set forth in Business and Professions Code Section 26001(1)
and includes any activity involving the planting, growing, harvesting, drying, curing, grading, or
trimming of cannabis.
"Medicinal cannabis" or "medical cannabis" is cannabis 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 cannabis in the treatment of
acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain,
glaucoma, migraine, spasticity, or any other serious medical condition for which cannabis is
deemed to provide relief as defined in subsection (h) of Health and Safety Code § 11362.7.
"MAUCRSA" means the Medicinal and Adult -Use Cannabis Regulation and Safety Act as
codified in Division 10 of the Business and Professions Code, as the same may be amended from
time to time.
"Primary caregiver" has the meaning set forth in Health and Safety Code Sections
11362.5(e) and 11362.7(d).
"Private residence" means a house, an apartment unit, condominium, or other similar
dwelling.
"Qualified patient" has the meaning set forth in Health and Safety Code Section 11362.7(f).
17.40.020 — Purpose and intent.
The purpose and intent of this chapter is to prohibit commercial cannabis facilities and to
regulate cannabis cultivation, as defined above, within the city limits. It is recognized that it is a
federal violation under the Controlled Substances Act to possess or distribute cannabis even if for
medical purposes. Additionally, there is evidence of an increased incidence of crime -related
secondary impacts in locations associated with a cannabis facility, which is contrary to policies
that are intended to promote and maintain the public's health, safety, and welfare.
17.40.030 — Commercial cannabis facilities and cannabis deliveries.
A. Commercial cannabis facilities are prohibited in all zones in the city. No person or
entity may establish or operate a commercial cannabis facility within city limits.
B. No property owner may allow its property to be used by any person or entity as a
commercial cannabis facility.
C. The delivery of cannabis to any person within the city limits is prohibited, except for
deliveries of medicinal cannabis by a primary caregiver to one of the primary
caregiver's qualified patients and these deliveries by the primary caregiver are subject
to the following requirements: (1) deliveries are only permitted to occur from the hours
of 7:00 am to 8:00 pm; (2) the delivery must be in an unmarked vehicle and (3)
deliveries are only permitted to a private home, apartment or residential condominium.
D. This chapter is not intended to prohibit any commercial or non-commercial cannabis
activity that the city is required by state law to permit within its jurisdiction pursuant
to MAUCRSA.
17.40.040 — Cannabis cultivation.
No person may cultivate cannabis at any location within the city, except that a person may
cultivate no more than six living cannabis plants inside a private residence, or inside an accessory
structure to a private residence located upon the grounds of that private residence, provided that
such cannabis cultivation is in compliance with all of the following requirements and restrictions:
A. The cultivation occurs in residences and/or accessory structures that are fully enclosed
and secured against unauthorized entry.
B. The owner of the private residence has provided written consent allowing cannabis
cultivation to occur at the private residence.
C. The cultivation complies with all applicable building code requirements set forth in the
Rosemead Municipal Code.
D. There is no use of gas products (CO2, butane, propane, natural gas, etc.) on the property
for purposes of cannabis cultivation.
E. Pursuant to Health and Safety Code Section 11362.2(a)(3), no more than six living
plants may be planted, cultivated, harvested, dried, or processed within a single private
residence, or upon the grounds of that private residence, at one time.
F. Indoor grow lights used for cannabis cultivation do not exceed 1,000 watts per light.
G. Adverse impacts of cannabis cultivation are mitigated so that a public nuisance, as
defined by Civil Code Section 3480, does not exist, including but not limited to adverse
impacts of odors or the use or storage of hazardous materials, processes, products, or
wastes.
H. A portable, working, fire extinguisher must be kept in the same room or structure where
cannabis cultivation is occurring.
I. Cannabis and cannabis infused products must be disposed in a secure waste receptacle
located on the residential property. Disposed cannabis plants and products must be
rendered unusable and unrecognizable by grinding and incorporating cannabis waste
with any non -consumable solid waste with a resulting mixture of at least 50 percent
non -cannabis waste.
17.40.050 — Violation.
Violation of any provision of this chapter is subject to enforcement remedies and penalties
as set forth in Rosemead Municipal Code or applicable law.
17.40.050 — Civil penalties.
Any violation of this section is declared to be a public nuisance per se and contrary to the
public interest and will at the discretion of the city, be subject to a cause of action for injunctive
relief. In addition to any other method of enforcement, the City Attorney may bring a civil action
for injunctive relief and civil penalties against any person or entity that violates this chapter. In
any civil action brought pursuant to this section, a court of competent jurisdiction may award
reasonable attorneys' fees and costs to the prevailing party as provided in Rosemead Municipal
Code Section 1.16.040.
SECTION 8. Construction. This Ordinance must be broadly constructed in order to
achieve the purposes stated in this Ordinance. It is the City Council's intent that the provisions of
this Ordinance be interpreted or implemented by the City and others in a manner that facilitates
the purposes set forth in this Ordinance.
SECTION 9. Enforceability. Repeal of any provision of the RMC does not affect any
penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties
for any violation occurring before this Ordinance's effective date. Any such repealed part will
remain in full force and effect for sustaining action or prosecuting violations occurring before the
effective date of this Ordinance.
SECTION 10. Severability. The City Council hereby declares that, should any provision,
section, subsection, paragraph, sentence, clause, phrase, or word of this Ordinance or any part
thereof, be rendered or declared invalid or unconstitutional by any final court action in a court of
competent jurisdiction or by reason of any preemptive legislation, such decision or action shall not
affect the validity of the remaining section or portions of the Ordinance or part thereof. The City
Council hereby declares that it would have independently adopted the remaining provisions,
sections, subsections, paragraphs, sentences, clauses, phrases, or words of this Ordinance
irrespective of the fact that any one or more provisions, sections, subsections, paragraphs,
sentences, clauses, phrases, or words may be declared invalid or unconstitutional.
SECTION 11. Effective Date. This Ordinance shall take effect thirty (30) days after its
adoption.
SECTION 12. Publication. The City Clerk shall certify to the adoption of this Ordinance
and shall publish a summary of this Ordinance and post a certified copy of the full Ordinance in
the office of the City Clerk at least five days prior to the adoption and within 15 days after adoption
of the Ordinance, the City Clerk shall publish a summary of the Ordinance with the names of the
Council Members voting for and against the Ordinance. This Ordinance shall take effect thirty
(30) days after the date of its adoption.
N
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Rosemead,
County of Los Angeles of the State of California on November 13, 2018.
Steven Ly, Mayor
ATTEST:
Ericka Hernandez, City Clerk
APPROVED AS TO FORM:
Rachel H. Richman, City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES)
CITY OF ROSEMEAD )
I, Ericka Hernandez, City Clerk of the City of Rosemead, California, do hereby certify that the
foregoing City Council Ordinance No. 983, was duly regularly introduced and placed upon its
first reading at regular meeting of the City Council on 11"' of October, 2018. That after said
Ordinance was duly adopted and passed at a regular meeting of the City Council on the 13' day
of November, 2018, by the following vote to wit:
AYES:
NOES:
ABSENT:
/_�MIC110
Ericka Hernandez, City Clerk