2 Ordinance of the City Council of the City of Livingston Amending Title 5, Chapters 2, 3, 5 and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana ( Cannabis) Activities, Regulating Delivery of Medical Marijuana, and Regulating the Cultivation of Medical Marijuana Including Establishing Exemptions for Cultivation by Qualified Patients and Primary Caregivers.

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Meeting Date: January 05, 2016

STAFF REPORT

AGENDA ITEM: Ordinance of the City Council of the City of Livingston Amending Title 5, Chapters 2, 3, 5 and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana (Cannabis) Activities, Regulating Delivery of Medical Marijuana, and Regulating the Cultivation of Medical Marijuana Including Establishing Exemptions for Cultivation by Qualified Patients and Primary Caregivers

MEETING DATE: January 5, 2016

PREPARED BY: Jose M. Sanchez, City Attorney

REVIEWED BY: Odi Ortiz, Acting City Manager

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RECOMMENDATION:

Staff recommends that City Council adopt Ordinance 2016-_ , amending Title 5, Chapters 2, 3, 5, and 7 of the Livingston Municipal Code Prohibiting Commercial Marijuana (Cannabis) Activities, Regulating Delivery of Medical Marijuana, and Regulating the Cultivation of Medical Marijuana Including Establishing Exemptions for Cultivation by Qualified Patients and Primary Caregivers. The Ordinance is necessary to retain local control to regulate marijuana cultivation under the Medical Marijuana Regulation and Safety Act.

BACKGROUND:

Background Regarding Medical Marijuana Laws

In 1996 voters in the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5 and entitled "The Compassionate Use Act of 1996" or the "CUA"). The primary purpose of the CUA was to ensure that seriously ill Californians have the right to obtain and use marijuana 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 illness for which marijuana provides relief.

The CUA was limited in scope, however, and caused uncertainties in the law and impeded law enforcement’s ability to interpret and enforce the law. The uncertainties also hindered persons eligible to use marijuana for medical purposes from accessing marijuana, while many persons took advantage of the Act to use marijuana for recreational and not medical purposes.

In 2004, the State of California also enacted Senate Bill 420 (codified as California Health and Safety Code section 11362.7 et seq. and referred to as "The Medical Marijuana Program" or the "MMP"), to clarify the scope of Proposition 215 and to provide qualifying patients and primary caregivers, who collectively or cooperatively cultivate marijuana for medical purposes, with a limited defense to certain specified State criminal statutes. Assembly Bill 2650 (2010), and Assembly Bill 1300 (2011), amended the MMP to expressly recognize the authority of counties and cities to "[a]dopt local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective" and to civilly and criminally enforce such ordinances.

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Since 2004, there have been two major judicial decisions that have interpreted the medical marijuana laws in California and have provided guidance on a cities’ ability to regulate land use for the cultivation of marijuana. In Ciry of PJverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that "[n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land. . .".

Additionally, in Mara! v. City of Live Oak (2013) 221 Cal.App.4th 975, 984, the Court of Appeal held that "there is no right-and certainly no constitutional right-to cultivate medical marijuana . . .". The Court in Mara! affirmed the ability of a local governmental entity to prohibit the cultivation of marijuana under its land use authority.

Changes in the Law Requiring Land Use Regulations or Ordinance

On October 9, 2015, three (3) bills (Assembly Bill("AB") 243, AB 266, and Senate Bill ("SB") 643) related to medical marijuana were signed into law by Governor Brown. The three (3) bills were joined and signed as a package (known as the "Medical Marijuana Regulation & Safety Act" or the "MMRSA").

The legislation created a comprehensive statewide regulatory license system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis. All licenses must also be approved by local governments.

AB 243, which relates to cultivation of marijuana, provides that "[ilf a local city, county, or city and county does not have land use regulations or ordinances prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning. or chooses not to administer a conditional permit program pursuant to this section, then commencing March 1, 2016, the division shall be the sole licensing authority for medical marijuana cultivation applicants in that city, county or city and county."

Thus, if an ordinance regulating or prohibiting marijuana cultivation is adopted by March 1, 2016, cities still retain local control through their police power and land use authority. Consistent with current law, the new MMRSA will not impact the City’s ability to prohibit or regulate medical dispensaries or cultivation.

Recently, the author of AB 243, Assembly Member Wood, issued a letter indicating that he will be proposing an amendment to the bill removing the March 1, 2016 deadline. Unfortunately, the amendment has not yet been passed and it does not appear that the amendment will be passed before the March 1, 2016 deadline; therefore, that deadline is still in effect and requires cities to regulate or prohibit marijuana cultivation by March 1, 2016.

Currently, the City of Livingston prohibits medical marijuana dispensaries, however, the Livingston Municipal Code is silent regarding medical marijuana cultivation.

DISCUSSION:

The proposed Zoning Ordinance text amendments were developed by staff, in consultation with the Police Chief, in an attempt to balance the health, safety and welfare of the people of Livingston with the real medical needs of qualified patients in the City.

Planning Commission Recommendations

The proposed Zoning Ordinance text amendments were discussed at a Planning Commission meeting on December 8, 2015. The Planning Commission reviewed the proposed Ordinance and recommended adoption of the Ordinance with the following changes:

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ATTACHMENTS:

1. Draft Ordinance No. 2016-_

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2. Red-Lined Ordinance No. 2016- _ (Showing changes after Planning Commission Presentation)

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3. League of Cities Informational Brochure on Medical Marijuana Regulation and Safety Act

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4. League of Cities FAQ Sheet

 

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