HomeMy WebLinkAbout2017-09-26; City Council; ; Adopt Ordinance No. CS-323 adding Chapter 8.90 (Cannabis) to Title 8 of the Carlsbad Municipal Code and amending Section 1.080.010 to make violations of Chapter 8.90 misdCITY COUNCIL
Staff Report
Meeting Date:
To:
From:
Staff Contact:
Sept. 26, 2017
Mayor and City Council
Kevin Crawford, City Manager
Sheila Cobian, City Clerk Services Manager
sheila.cobian@carlsbadca.gov or 760-434-2917
CA Review rJs
Subject: Adopt Ordinance No. CS-323 adding Chapter 8.90 (Cannabis) to Title 8 of
the Carlsbad Municipal Code and amending Section 1.080.010 to make
violations of Chapter 8.90 misdemeanors
Recommended Action
Adopt Ordinance No. CS-323 adding Chapter 8.90 (Cannabis) to Title 8 of the Carlsbad
Municipal Code to prohibit commercial cannabis activity and regulate the cultivation of
cannabis for personal use, and amending Section 1.08.010 of Chapter 1.08 (Penalty) to make
violations of Chapter 8.90 misdemeanors.
Executive Summary /Discussion
Ordinance No. CS-323 was introduced and first read at the City Council meeting held on Sept.
12, 2017.
On a motion by Council Member Packard, seconded by Council Member M. Schumacher, the
City Council voted 4/1 (C. Schumacher -No) to introduce the Ordinance presented as Exhibit 1
(Option 1). The second reading allows the City Council to adopt the ordinance which will
become effective thirty days after adoption.
Fiscal Analysis
The proposed ordinance would preserve the status quo and thereby has no fiscal impact.
Opting to regulate and tax commercial cannabis activities instead of banning them could
provide tax revenue to the city. Additionally, Proposition 64 sets up a state grant fund for law
enforcement, fire protection, or other local programs addressing public health and safety
associated with implementing this law. However, cities that ban commercial cultivation,
personal outdoor cultivation at a private residence, or the retail sale of cannabis are ineligible
to receive these grant funds.
Next Steps
The City Clerk will have the ordinance or a summary ofthe ordinance published in a newspaper
of general circulation within fifteen days following adoption of the ordinance.
Environmental Evaluation (CEQA)
The requested action is not a project within the definition of the California Code of Regulations,
Title 14, Chapter 3, section 15378(a) since the action has no potential for resulting in either a
direct change in the environment or a reasonably foreseeable indirect change in the
environment.
September 26, 2017 Item #10 Page 1 of 7
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. Ordinance No. CS-323
September 26, 2017 Item #10 Page 2 of 7
ORDINANCE NO. CS-323
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, ADDING CHAPTER 8.90 (CANNABIS) TO TITLE 8 OF THE
CARLSBAD MUNICIPAL CODE TO PROHIBIT COMMERCIAL CANNABIS
ACTIVITY AND REGULATE THE CULTIVATION OF CANNABIS FOR PERSONAL
USE, AND AMENDING SECTION 1.08.010 OF CHAPTER 1.08 (PENALTY) TO
MAKE VIOLATIONS OF CHAPTER 8.90 MISDEMEANORS
Exhibit 1
WHEREAS, the Carlsbad Municipal Code currently prohibits all commercial cannabis activity
through permissive zoning, by which all uses not expressly allowed are prohibited; and
WHEREAS, the federal Controlled Substances Act, 21 U.S.C. section 801 to 899, makes it
unlawful to manufacture, distribute, dispense, or possess cannabis, except as part of a research study
approved by the U.S. Food and Drug Administration and with U.S. Drug Enforcement Administration
registration; and
WHEREAS, in 1996, California voters approved Proposition 215, codified as California Health
and Safety Code sections 11362.5 et seq., entitled the Compassionate Use Act, to ensure that seriously
ill individuals have the right to obtain and use cannabis for medical purposes when recommended by
a physician, and to exempt qualified patients and their primary caregivers from criminal prosecution
under state law; and
WHEREAS, in Gonzales v. Raich, 545 U.S. 1 (2005), the United States Supreme Court held that
cannabis, including where used for medical purposes, violates federal law under the Controlled
Substances Act, such that Federal law enforcement agents may continue to enforce the Controlled
Substance Act against Californians who use cannabis for medical purposes; and
WHEREAS, on January 1, 2016, the California Medical Cannabis Regulation and Safety Act
became effective, requiring cities desiring to ban delivery of cannabis to do so expressly to avoid state
issued licenses to deliver within a city's jurisdiction; and
WHEREAS, on November 9, 2016, the Adult Use of Marijuana Act, also known as Proposition
64, became effective, authorizing certain personal use and cultivation of cannabis at a private residence
and creating a state licensing and regulatory scheme for various commercial cannabis activities; and
WHEREAS, on June 27, 2017, the Medicinal and Adult-Use Cannabis Regulation and Safety Act
became effective, establishing a single state regulatory structure for both medicinal and adult-use
cannabis; and
September 26, 2017 Item #10 Page 3 of 7
WHEREAS, state law preserves cities' authority to prohibit commercial cannabis activity, and to
reasonably regulate indoor cultivation and ban outdoor cultivation for personal use within their
jurisdictions; and
WHEREAS, the state does not yet have its regulatory and licensing program in place but intends
to begin issuing licenses under these laws by January 1, 2018; and
WHEREAS, the purpose of this ordinance is to preserve the status quo by expressly prohibiting
commercial cannabis activity to avoid the issuance of state licenses for commercial cannabis activities
within Carlsbad's jurisdiction, and to ban outdoor cultivation and reasonably regulate indoor cultivation
at a private residence by requiring the structure be completely enclosed, secured, and screened from
view from public places and neighboring properties; and
WHEREAS, cannabis-related activities have resulted in crimes committed in Carlsbad including
illegally operating dispensaries, delivery and sale of cannabis to youths, an explosion at an apartment
building from a large-scale chemical cannabis extraction process, the robbery of a cannabis delivery
driver at gunpoint, and a fire at a residence from commercial cannabis extraction; and
WHEREAS, permitting commercial cannabis activities in Carlsbad would increase the availability
of cannabis and risk increasing cannabis-related crimes and other undesirable secondary effects such
as cannabis-related traffic deaths, youth cannabis use, and cannabis-related emergency room
admissions.
that:
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows
SECTION 1: The above recitations are true and correct.
SECTION 2: That Chapter 8.90 is added to the Carlsbad Municipal Code to read as follows:
Chapter 8.90 CANNABIS
8.90.010 Purpose.
This chapter is declarative of existing law. The Carlsbad Municipal Code, Title 21 (Zoning), only
allows land uses permitted by the code. No provision of the Carlsbad Municipal Code allows
any cannabis operation or land use of any kind within any zone. The purpose and intent of this
chapter is to clarify the intent of the Carlsbad Municipal Code to prevent the cultivation,
delivery, distribution, and sale of cannabis within Carlsbad city limits to the fullest extent of
the law. Commercial cannabis activity has judicially recognized adverse secondary effects on
the community including, but not limited to, increases in crime in the vicinity of or as a result
September 26, 2017 Item #10 Page 4 of 7
of the commercial cannabis activity; increases of fraud in obtaining or using state-issued
identification cards and licenses; interference with residential property owners1 enjoyment of
their properties when such properties are located in the vicinity of commercial cannabis
activity as a result of increases in crime, litter, noise, and vandalism; and the deterioration of
neighborhoods. Prohibition of commercial cannabis activity is necessary to prevent these
adverse secondary effects and the blighting or degradation of the neighborhoods in the
vicinity of commercial cannabis activity while at the same time protecting the rights of those
individuals who desire to use cannabis within his or her private residence as authorized under
the Adult Use of Marijuana Act.
Further, it is the intent of this chapter to limit the demands on police and other city resources
and allow time for the state to establish and implement its regulatory and licensing programs
under the Medical Cannabis Regulation and Safety Act of 2015, the Adult Use of Marijuana Act
of 2016, and the Medicinal and Adult-Use Cannabis Regulation and Safety Act of 2017.
This chapter is not intended to conflict with federal or state law. It is the intention ofthe City
Council that this chapter be interpreted to be compatible with federal and state law. To the
extent that this chapter may be deemed to conflict with any provision of state law, the City
Council has determined that the subject of the conflict is a municipal affair.
8.90.020 Definitions.
For the purposes of this chapter, the following definitions apply:
"Commercial cannabis activity,, means any cultivation, possession, manufacture, distribution,
processing, storing, laboratory testing, packaging, labeling, transportation, distribution,
delivery, or sale of cannabis requiring a license from the State under Division 10 of the
California Business and Professions Code, whether or not carried on for profit and including
medical cannabis cooperatives and collectives, except as approved by the U.S. Drug
Enforcement Administration or the U.S. Food and Drug Administration.
"Cultivation,, means any activity involving the planting, growing, harvesting, drying, curing,
grading, or trimming of cannabis.
"Delivery,, means the transfer of cannabis, including the use of any technology platform to
arrange for or facilitate the transfer of cannabis, by any business, cooperative, or collective,
whether or not carried on for profit, to or from any location within the City of Carlsbad.
"Cannabis,, means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis
ruderalis, whether growing or not; the seeds thereof; the resin extracted from any part of the
plant, whether crude or purified; every compound, manufacture, salt, derivative, mixture,
concentrate, or preparation of the plant, its seeds, or resin; and edible or topical products
containing any of the above. "Cannabis,, does not include industrial hemp, as defined in
California Health and Safety Code section 11018.5.
"Indoors,, means a code compliant space within a building, greenhouse, or other structure
which is fully enclosed, with a complete roof enclosure supported by connecting walls
September 26, 2017 Item #10 Page 5 of 7
extending from the ground to the roof, and is secured against unauthorized entry, and
accessible only through one or more locking doors.
"Private residence" means a house, an apartment unit, a mobile home, or other similar
dwelling unit.
8.90.030 Prohibited Activities.
A. Commercial cannabis activity is prohibited within the City of Carlsbad. No person shall
engage in any commercial cannabis activity. No permit, license, or other authorization shall be
issued for any commercial cannabis activity. This prohibition does not apply to the carriage of
cannabis on public roads in the City of Carlsbad to the limited extent required by Sections
26080(b) and 26090(e) of the California Business and Professions Code.
B. To the extent not already covered by subsection A, delivery of cannabis is prohibited.
No person shall conduct delivery or participate in the delivery of cannabis.
C. Cultivation of cannabis is prohibited, except indoors at a private residence as
authorized by Section 11362.2(a) of the California Health and Safety Code. Cannabis grown
indoors shall be completely screened from view from public places and neighboring
properties. Nothing in this chapter is intended to, nor shall it be construed to, preclude any
owner of real property from limiting or prohibiting cannabis cultivation by its tenants.
D. No person shall smoke or ingest cannabis in any public place.
8.90.040 Public Nuisance.
Any violation of this chapter is hereby declared a public nuisance and, as such, may be abated
or enjoined from further operation within the City of Carlsbad.
8.90.050 Violations.
A. Any person who violates this chapter shall be guilty of a misdemeanor except: where
Division 10, Chapter 6, Article 2 of California Health and Safety Code limits punishment to an
infraction; or where the limited exemptions from criminal prosecution under Sections
11362. 71 or 11362. 775 of the California Health and Safety Code, related to qualified patients
and designated primary caregivers, apply. Under subsection 1.08.010(() of this code, each and
every day during which a violation occurs shall be a separate offense.
B. The city may impose administrative penalties under Chapter 1.10 of this code for
violations of this chapter.
8.90.060 Severability.
If any section, subsection, sentence, or clause of this chapter is held to be invalid or
unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity
of the remaining portions of this chapter.
September 26, 2017 Item #10 Page 6 of 7
SECTION 3: That Carlsbad Municipal Code section 1.08.010 is amended to read as follows:
1.08.010 Designated.
A.Whenever in Chapters 6.03, 8.16, 8.44, 8.48, 8.50, 8.90, 11.28 and 15.12, or as specified
in Sections 1.13.040, 1.20.330(c), 1.20.330(d), 10.130, 6.04.130, 8.17.200(A)(1),
8.17.200(A)(2), 8.17.200(A)(3), 8.17.200(A)(4} and 17.04.070 of this code any act is prohibited
or is made or declared to be unlawful or an offense, or the doing of any act is required or the
failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such
provision is a misdemeanor and shall be punished by a fine not exceeding $1,000.00 or
imprisonment for a term not exceeding six months, or by both such fine and imprisonment
unless some other fine or penalty is stated in said chapter or section.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City
Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary
of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general
circulation in the City of Carlsbad within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 12th
day of September, 2017, and thereafter
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 26th day of September, 2017, by the following vote, to wit:
AYES:
NOES:
M. Hall, K. Blackburn, M. Schumacher, M. Packard.
C. Schumacher.
ABSENT: None.
APPROVED AS TO FORM AND LEGALITY:
=----CELIA A. BREWER, City Attorney
(SEAL)
September 26, 2017 Item #10 Page 7 of 7