Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston Regulating the Cultivation of Marijuana.

LIVINGSTON CA / July 15, 2013 —

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Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston Regulating the Cultivation of Marijuana.

STAFF REPORT

AGENDA ITEM: Introduce and Waive the First Reading of an Ordinance of the City Council  of the City of Livingston Regulating the Cultivation of Marijuana.

MEETING DATE: July 16, 2013

PREPARED BY: Ruben Chavez, Chief of Police

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Staff recommends that the City Council introduce and waive the first reading of an Ordinance regulating the cultivation of marijuana in the City of Livingston.

BACKGROUND:

In 1996, the voters of California approved Proposition 215 which allowed the cultivation and use of marijuana for medicinal reasons. The Proposition, known as "The Compassionate Use Act of 1996" was intended to allow certain individuals suffering medical conditions to cultivate and utilize marijuana in an effort to mitigate associated pain and discomfort. On January 1, 2004, Senate Bill 420 ("SB 420") became effective to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420.

The City of Livingston currently does not have any regulations governing outdoor marijuana cultivation or regulations associated with SB 420. Federal law prohibits the use and cultivation of marijuana regardless of the reason for such use or cultivation, while State law decriminalizes the use of medicinal marijuana on limited terms and conditions.

Since the law’s passing, the Police Department has responded to numerous calls for service associated with outdoor marijuana cultivation. These calls include strong offensive marijuana odors emanating throughout a neighborhood which in itself creates increased health hazards for children who are vulnerable to the effects of marijuana. The strong odors additionally alert others to the presence of marijuana which has resulted in increased criminal activity such as robberies, aggravated assaults, burglaries, home invasions, and in adjacent communities, homicides.

This Ordinance is intended to comply with SB 420 by restricting and regulating marijuana to be cultivated in enclosed structures. Those individuals subject to SB 420 will be allowed to cultivate medicinal marijuana in indoor environments which reduces odors in neighborhoods and reduces the criminal activity. The individuals would be prohibited from using gas products and each enclosure would be required to maintain a functional kitchen and restroom(s) and prohibited from using rooms which are intended for sleeping. Individuals who are tenants would be required to obtain written permission of the property owner prior to cultivating marijuana. Marijuana cultivation for sale will be strictly prohibited.

This Ordinance complies with the applicable State laws, as well as imposes reasonable rules and regulations protecting health, safety and the welfare of the residents, property owners, and businesses within the incorporated area of the City of Livingston. Violation of these sections would be subject to civil and criminal penalties.

DISCUSSION:

This Ordinance will add Chapter 9 to Title 8 of the Livingston Municipal Code regulating the cultivation of marijuana in the City of Livingston.

FISCAL IMPACT:

No impact to the General Fund.

ATTACHMENTS:

1. Ordinance No.

 

ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

LIVINGSTON ADDING CHAPTER 9 TO TITLE 8 OF THE LIVINGSTON MUNICIPAL CODE, "MARIJUANA CULTIVATION," REGULATING THE

CULTIVATION OF MARIJUANA IN THE CITY OF LIVINGSTON

WHEREAS, in 1996, the voters of the State of California approved Proposition 215 which was codified as Health and Safety Code section 11362.5, et seq., and entitled "The Compassionate Use Act of 1996" ("the Act"); and

WHEREAS, the intent of the Act was to enable persons who are in need of marijuana for medical purposes to obtain and use it under limited, specific circumstances, and to provide them with criminal defenses to certain crimes involving marijuana; and

WHEREAS, on January 1, 2004, Senate Bill 420 ("SB 420") became effective to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and

the Act; and

WHEREAS, California Government Code section 65850(a) and (c)(4) provide the authority for the

City of Livingston to regulate, by ordinance, the uses of land and the intensity of land use within the City; and

WHEREAS, the City has no explicit rules or regulations governing the outdoor cultivation of marijuana to prevent impacts on nearby residents and businesses; and

WHEREAS, Federal law prohibits use and cultivation of marijuana, regardless of the reason for such use or cultivation; while State law decriminalizes the use of medical marijuana on limited terms and conditions; and

WHEREAS, this Ordinance complies with the applicable State law, as well as imposes reasonable rules and regulations protecting public health, safety, and the welfare of the residents, property owners, and businesses within the incorporated area of the City of Livingston; and

WHEREAS, the City of Livingston has non-owner occupied rental properties and vacant foreclosures. Rental properties and foreclosures attract unauthorized marijuana cultivation activities, causing negative impacts on surrounding properties and residents; and

WHEREAS, the City of Livingston Police Department has received complaints of adverse impacts from the outdoor cultivation of marijuana within the City, including offensive odors, increased risk of trespassing, burglary and robbery, and acts of violence in connection with the commission of such crimes. The Police Department has recently been informed by other jurisdictions of incidents involving home invasions and shootings as a result of marijuana cultivation; and

WHEREAS, the strong odor of marijuana plants, which increases as the plants mature and is detectable far beyond property boundaries, is offensive to many individuals and creates an attractive nuisance, alerting people to the location of marijuana plants and creating an increased risk of crime in residential neighborhoods; and

WHEREAS, children are particularly vulnerable to the effects of marijuana use, and the presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children such as schools, parks, and similar locations; and

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WHEREAS, based on the above findings, the outdoor cultivation of marijuana is an incompatible land use within the City of Livingston; and

WHEREAS, to protect the public health, safety, and welfare, it is the desire of the City to amend the City of Livingston Municipal Code by prohibiting the outdoor cultivation of marijuana within the City; and

WHEREAS, the Attorney General’s August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use recognizes that the cultivation, or other concentration of marijuana in any location or premises without adequate security, increases the risk that surrounding homes or businesses may be negatively impacted by nuisance activity such as loitering or crime; and

WHEREAS, mindful of the fact that marijuana possession and use is prohibited under Federal law and partially decriminalized under State law, it is the Council’s intention that nothing in this Chapter shall be construed, in any way, to expand the rights of anyone to use or possess marijuana under State law; engage in any public nuisance; violate Federal law, or engage in any activity in relation to the cultivation, distribution, or consumption of marijuana that is otherwise illegal.

THE CITY COUNCIL OF THE CITY OF LIVINGSTON DOES ORDAIN AS FOLLOWS: SECTION 1. RECITALS

The foregoing recitals are true and correct and made a part of this Ordinance. SECTION 2. AMENDMENT

The Livingston Municipal Code, Title 8, "Health and Sanitation," is hereby amended to add Chapter 9, "Marijuana Cultivation Regulations," to read as follows:

TITLE 8 – CHAPTER 9

MARIJUANA CULTIVATION REGULATIONS

8-9-1 Purpose

8-9-2 Definitions

8-9-3 Outdoor Cultivation of Marijuana Prohibited

8-9-4 Indoor Cultivation

8-9-5 Penalties for Violations

8-9-6 Remedies and Penalties Not Exclusive

8-9-1 PURPOSE.

In 1996, California voters approved Proposition 215, entitled "The Compassionate Use Act," that was later codified at Health and Safety Code section 11362.5. The Compassionate Use Act provides that qualified patients, and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician, are not subject to criminal prosecution or sanction under State law. In 2003, the State enacted Senate Bill 420, known as the Medical Marijuana Program Act, codified at Health and Safety Code section 11362.7 et seq. The Medical Marijuana Program Act was intended to supplement the provisions and clarify the intent and scope of the Compassionate Use Act, and to allow cities to adopt and enforce rules and regulations consistent with the Medical Marijuana Program Act.

Page 2 of 6

The purpose of this section is to prohibit the outdoor cultivation of marijuana in order to protect the public health, safety and welfare. Without this prohibition, plantings of new crops of marijuana will occur without the City’s ability to control the negative effects to the health, safety and welfare of the citizens of the City of Livingston. Those negative effects include, but are not limited to, offensive odors, alerting people to the location of marijuana plants, and creating an increased risk of crime such as trespassing and burglary, and acts of violence in connection with the commission of such crimes or the occupants’ attempts to prevent such crimes.

The regulations in this Chapter do not interfere with a qualified patient’s right to obtain and use marijuana as authorized under State law, nor do they criminalize the possession of marijuana by qualified patients or their primary caregivers. It is neither the intent nor the effect of this Chapter to condone or legitimize the illegal use, consumption, or cultivation of marijuana under Federal, State, or local law.

8-9-2 DEFINITIONS.

As used in this Chapter, the following words and phrases shall have the meaning given them in this Section,unless the context clearly requires otherwise:

(A) "City" shall mean the City of Livingston, California.

(B) "Cultivation" shall mean the planting, growing, harvesting, drying or processing of one or more marijuana plants, or any parts thereof.

(C) "Fully enclosed and secure structure" shall mean a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, and which is accessible only through one or more lockable doors.

(D) "Identification card" has the same definition as set forth in California Health and Safety

Code section 11362.7.

(E) "Juvenile" means a person under the age of eighteen (18) years.

(F) "Marijuana" has the same definition as set forth in California Health and Safety Code section 11018.

(G) "Marijuana plant" means any mature or immature marijuana plant, or any marijuana seedling.

(H) "Medical marijuana" means marijuana used for medical purposes in accordance with the Compassionate Use Act (California Health and Safety Code section 11362.5) and the Medical Marijuana Program Act (California Health and Safety Code section 11362.7 et seq.).

(I) "Outdoor" shall mean any location that is not totally contained within a "fully enclosed and secure building." All proposed buildings and structures constructed on the property must comply with the prevailing California Building Code Standards and comply with the Livingston Municipal Code.

(J) "Person with an identification card" has the same definition as set forth in California Health and Safety Code section 11362.7.

Page 3 of 6

(K) "Premises" means a single parcel of property or contiguous parcels under common ownership or control.

(L) "Primary caregiver" has the same definition as set forth in California Health and Safety Code section 11362.7.

(M) "Qualified patient" has the same definition as set forth in California Health and Safety Code  section 11362.7.

8-9-3 OUTDOOR CULTIVATION OF MARIJUANA PROHIBITED.

No person owning, renting, leasing, occupying, or having charge or possession of any real property within the City limits shall cause or allow such real property to be used for the outdoor cultivation of marijuana.

Cultivation of marijuana is prohibited in all zoning districts with the City.

8-9-4 INDOOR CULTIVATION.

The indoor cultivation of medical marijuana shall be conducted only within a fully enclosed and secure structure and shall conform to the following minimum standards:

(A) Indoor cultivation of marijuana is permitted only on parcels with residential units.

(B) Indoor grow lighting systems shall:

(1) Be shielded to confine light and glare to the interior of the allowable structure;

(2) Comply with the City Building Code, Fire Code and Municipal Code.

(C) Medical marijuana cultivation shall be concealed from public view at all stages of growth and there shall be no exterior evidence of cultivation occurring at the property from a public right-of-way or from an adjacent parcel.

(D) The medical marijuana cultivation shall not create offensive odors; create excessive dust, heat, noise, smoke, traffic, or other impacts that are disturbing to people of normal sensitivity residing or present on adjacent or nearby property or areas open to the public; or be hazardous due to use or storage of materials, processes, products, or wastes.

(E) Medical marijuana cultivation areas shall not be accessible to juveniles who are not qualified patients, primary caregivers, or persons with an identification card.

(F) Individuals that are tenants shall obtain the written permission of the property owner prior to cultivating marijuana.

(G) The use of gas products (C02, butane, etc.) for marijuana cultivation or processing is prohibited.

(H) Marijuana cultivation for sale is prohibited.

Page 4of6

(I) The residence shall be occupied and is required to maintain a functioning kitchen and bathroom(s), and the use of primary bedrooms are for their intended purpose. These rooms shall not be used for marijuana cultivation.

8-9-5 PENALTY FOR VIOLATIONS.

(A) Any person who violates a provision of this Chapter is subject to criminal sanctions, civil actions, and administrative penalties pursuant to Title I Chapter 4 of the Livingston Municipal Code.

(B) Violations of this Chapter are declared to be public nuisances and may be abated in accordance with the procedures and remedies specified in Chapters 1-4, 1017, 1-18, 1-19 or Chapter 8-1 of the Livingston Municipal Code.

(C) A person violating any provision of this Chapter shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by a fine not to exceed the amount provided in Penal Code Section 19, as may be amended from time to time, by imprisonment in the county jail not to exceed six months, or by both a fine and imprisonment.

8-9-6 REMEDIES AND PENALTIES NOT EXCLUSIVE.

The remedies and penalties provided in this Chapter are cumulative, alternative and nonexclusive. The use of one does not prevent the use of any other civil or administrative remedy or penalty authorized by, or set forth in, the Livingston Municipal Code. None of the penalties or remedies authorized by, or set forth in the Livingston Municipal Code shall prevent the City from using any other penalty or remedy under State Law which may be available to enforce this section or to abate a public nuisance.

SECTION 3. CEQA

The City Council finds that this Ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15061(b)(3) (there is no possibility the activity in question may have a significant effect on the environment).

SECTION 4. SEVERABILITY

If any provision of this Ordinance or the application thereof to any person or circumstance, is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid or unenforceable.

SECTION 5. EFFECTIVE DATE

This Ordinance shall become effective thirty (30) days after its final passage and adoption.

Introduced:

Passed and Adopted:

Page 5 of 6

RODRIGO ESPINOZA, Mayor of the City of Livingston

ATTEST:

State of California )

County of Merced )

City of Livingston )

I, hereby certify that the foregoing Ordinance was duly introduced at a Regular Meeting of the City Council

of the City of Livingston on the day of , 2013, and was passed and adopted at a Regular Meeting

of the City Council of the City of Livingston this day of , 2013, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

1956836.3

ANTONIO SILVA, City Clerk

of the City of Livingston

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