TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn Barrow, City Attorney
SUBJECT:Title
(1) Adoption of Interim Ordinance No. 15-0036U prohibiting all cultivation of medical marijuana, (2) Adoption of Urgency Ordinance No. 15-0037U prohibiting the delivery of medical marijuana and mobile marijuana dispensaries in the City, and (3) Introducing Ordinance No. 15-0037 prohibiting delivery of medical marijuana and mobile marijuana dispensaries in the City (City Attorney Barrow).
ADOPT ORDINANCES NO. 15-0036U AND 15-0037U AND INTRODUCE ORDINANCE NO. 15-0037
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council:
1. Adopt Interim Ordinance No. 15-0036U, an interim ordinance temporarily prohibiting cultivation of medical marijuana in the City;
2. Adopt Urgency Ordinance No. 15-0037U, an urgency ordinance prohibiting the delivery of medical marijuana and mobile marijuana dispensaries in the City; and
3. Introduce Ordinance No. 15-0037, an ordinance prohibiting delivery of medical marijuana and mobile marijuana dispensaries in the City.
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EXECUTIVE SUMMARY:
The Medical Marijuana Regulation and Safety Act (“MMRSA”) requires a city to take affirmative action if it wants to prohibit or regulate the cultivation and delivery of medical marijuana within its jurisdiction. Pursuant to the MMRSA, the City must adopt a land use regulation prohibiting or regulating the cultivation of medical marijuana that is in effect before March 1, 2016, or else it will be precluded from doing so in the future. To ensure that a land use regulation is in effect before the March 1, 2016 deadline, staff has prepared an interim ordinance maintaining the status quo in prohibiting the cultivation of medical marijuana until the City can obtain input from the public and adopt permanent regulations.
Pursuant to the MMRSA, a city that wishes to ban the delivery of medical marijuana must expressly prohibit this activity by ordinance. The MMRSA does not contain a deadline for when the prohibition on the delivery of medical marijuana must be in effect. Staff has prepared both an urgency ordinance and a regular ordinance prohibiting the delivery of medical marijuana and mobile marijuana dispensaries, to ensure that regulations are in place to preserve the City’s right to ban these activities.
FISCAL IMPLICATIONS:
There is no fiscal impact related to this item.
BACKGROUND:
In 1996, the voters of the State of California approved Proposition 215 entitled "The Compassionate Use Act of 1996" ("CUA") to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420 entitled the Medical Marijuana Program ("MMP") which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUA nor the MMP require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate medical marijuana within its jurisdiction. Under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need.
Governor Brown recently signed into law the MMRSA which is comprised of three related bills: AB 243, AB 266, and SB 643. The MMRSA establishes licensing requirements for the cultivation, distribution, and transportation of medical marijuana, safety and testing standards for medical marijuana and medical marijuana products, and regulates the physicians who recommend or prescribe medical marijuana to patients. The MMRSA contains statutory provisions that allow local governments to maintain local control over medical marijuana and does not require a city to allow medical marijuana activity within its borders.
DISCUSSION:
A. Cultivation of Medical Marijuana
The MMRSA provides that the State Department of Food and Agriculture will be the sole licensing authority for medical marijuana cultivation applications effective March 1, 2016, if a city does not have a land use ordinance in place regulating or prohibiting the cultivation of marijuana, either expressly or otherwise under the principles of permissive zoning, or if a city chooses not to administer a conditional use permit program.
The Manhattan Beach Municipal Code Section 10.60.160 currently prohibits medical marijuana dispensaries in all zones of the City. A medical marijuana dispensary is defined as “any facility or location where medical marijuana is cultivated or made available to and/or distributed by any of the following: a qualified patient, a person with an identification card, or a primary caregiver.” See Section 10.60.160(A)(3). The attached interim ordinance establishes a temporary moratorium on all cultivation of medical marijuana in the City, including cultivation for personal medical use by a qualified patient, a person with an identification card, or a primary caregiver.
Interim Ordinance No. 15-0036U is to maintain the status quo until there are public hearings before the Planning Commission and City Council to provide an opportunity for the public to provide input on cultivation. The Ordinance is necessary for the immediate preservation of the public peace, health or safety and, if adopted, shall take effect immediately pursuant to California Government Code Section 65858(a). The facts constituting the emergency are that the City must adopt a land use regulation prohibiting the cultivation of medical marijuana that is in effect by March 1, 2016, or the State will become the sole licensing authority for the cultivation of medical marijuana. Pursuant to Government Code Section 65853, et seq., the Planning Commission must first consider and recommend the adoption of a zoning code amendment before the City Council considers an ordinance amending the zoning code. The interim Ordinance, if adopted, establishes a moratorium prohibiting the cultivation of medical marijuana everywhere in the City and maintains the status quo until the City Council can adopt permanent regulations.
The moratorium prohibiting the cultivation of medical marijuana will preserve and protect the public health, safety and welfare. The justification for banning medical marijuana cultivation pursuant to the City’s police power includes, without limitation: 1) the increased risk to public safety, based on the value of marijuana plants and the accompanying threat of break-ins, robbery and theft, and attendant violence and injury; 2) the strong “skunk like” malodorous fumes emitted from mature plants that can interfere with the use and enjoyment of neighboring properties by their occupants; and 3) the risk of electrical fire hazards caused by medical marijuana cultivation.
Criminal activity is often associated with medical marijuana activities. As marijuana plants begin to flower, and for a period of two months or more, the plants produce a strong, unique odor, offensive to many people, and detectable far beyond property boundaries if grown outdoors. This odor can have the effect of encouraging theft by alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery of the plants and creating the potential for violent acts related to such criminal activity.
Furthermore, indoor cultivation of marijuana, often unattended, has potential to cause harm to persons and property in that the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a distinct risk of harm to the building and its occupants. Buildings where marijuana is cultivated are often illegally wired and have overloaded electrical systems that result in fires. In 2015 alone, there were a number of reported incidents of indoor marijuana cultivation sites causing fires. On February 9, 2015, there was a fire in a residence in Sacramento that was caused by the indoor cultivation of marijuana. On February 19, 2015, there was an electrical fire in Arcadia caused by an indoor marijuana cultivation operation. On April 24, 2015 there was an explosion in a Silver Lake home that leveled the house and destroyed several cars that was caused by an indoor marijuana cultivation operation. In May 2015, a fire erupted in a commercial building in Sun Valley that was caused by indoor marijuana grow house. In that same month, there was a fire in an Elk Grove home caused by an overheated illegal electrical power connection used to power an indoor marijuana grow house. In June 2015, there was a fire in a Sacramento residence caused by an indoor marijuana grow house. In July 2015, there was a fire in a Baldwin Park home caused by grow house. In September 2015, there was a fire in the garage of a Sun Valley residences that was caused by an indoor marijuana grow house. On October 23, 2015, there was a fire in a Rialto home that was caused by an indoor marijuana grow, started by an electrical panel that burst.
B. Medical Marijuana Deliveries and Mobile Marijuana Dispensaries
The MMRSA allows deliveries by a dispensary (with a State dispensary license) in a city that does not explicitly prohibit it by local ordinance. Manhattan Beach does not expressly prohibit deliveries of medical marijuana or mobile marijuana dispensaries in the City. If the City does not adopt an express ban ordinance before the State begins issuing any State licenses, a State-licensed dispensary will be able to deliver medical marijuana within its jurisdiction. Therefore, any ordinance adopted by Manhattan Beach concerning the delivery of medical marijuana must be in place before the State begins issuing State licenses.
Urgency Ordinance No. 15-0037U is necessary for the immediate preservation of the public peace, health or safety and, if adopted, shall take effect immediately pursuant to California Government Code Section 36937(b). The urgency ordinance must be adopted and must become effective immediately in order to protect City residents from imminent harm due to the risk of criminal activity associated with the delivery of medical marijuana and mobile marijuana dispensaries. Successful enforcement of regulations against storefront medical marijuana dispensaries has been found to coincide with an increase in mobile marijuana dispensaries and marijuana deliveries. This increase in deliveries and mobile marijuana dispensaries exposes the City’s residents to the increase of secondary effects related to the transportation of medical marijuana on City roads.
Mobile marijuana dispensaries and marijuana deliveries have resulted in criminal activity, as delivery drivers are targets for armed robbery. As a result, drivers choose to carry weapons to protect themselves. There are a number of recent reports of armed robberies of marijuana delivery services in California: On December 22, 2014, police in the City of San Bernardino reported that a customer robbed a mobile dispensary driver at gunpoint, which led to an hours-long standoff with police. On March 13, 2014, there was an armed robbery of a medical marijuana delivery vehicle that occurred in Long Beach that resulted in a physical fight between the medical marijuana employee and two suspects. In April 2015, a delivery driver for a medical marijuana dispensary was robbed at gunpoint in the Western Addition area of San Francisco. On August 20, 2015, police in the City of Monterey reported that a man held a medical marijuana delivery driver at gunpoint and fled with marijuana and cash. On September 25, 2015, a medical marijuana delivery man was robbed of the marijuana, cash and his car in the City of Altadena. Accordingly, it is necessary for the protection of the public health, safety and welfare that this Ordinance take effect immediately to protect the public against the criminal activity associated with the delivery of medical marijuana. In that Urgency Ordinance No. 15-0037U amends Title 4 (Public Welfare, Morals and Conduct) instead of the Zoning Code, no public hearings are required before the Planning Commission and City Council.
In addition to the urgency ordinance, staff recommends that the City Council introduce Ordinance No. 15-0037, prohibiting the delivery of medical marijuana and mobile marijuana dispensaries that is substantially similar to the urgency ordinance discussed above.
ENVIRONMENTAL REVIEW:
Pursuant to the California Environmental Quality Act (“CEQA”), the Planning Department has determined that the proposed prohibitions on the cultivation and delivery of medical marijuana and on mobile marijuana dispensaries are exempt from the requirements of CEQA and the City’s CEQA Guidelines pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the proposed prohibition on marijuana cultivation, marijuana deliveries and mobile marijuana dispensaries within the City’s jurisdiction will have a significant effect on the environment. The ordinances impose greater limitations on uses and activities allowed in the City, and will thereby serve to eliminate potential significant adverse environmental impacts. The ordinances will not have an impact on the physical environment as they will not result in any changes to the environment.
CONCLUSION:
Staff recommends that the City Council:
1. Adopt Ordinance No. 15-0036U, an interim ordinance temporarily prohibiting all medical marijuana cultivation in the City.
2. Adopt Ordinance No. 15-0037U, an urgency ordinance prohibiting delivery of medical marijuana and mobile marijuana dispensaries in the City.
3. Introduce Ordinance No. 15-0037, an ordinance prohibiting delivery of medical marijuana and mobile marijuana dispensaries in the City.
Attachments:
1. Interim Ordinance No. 15-0036U
2. Urgency Ordinance No. 15-0037U
3. Ordinance No. 15-0037