Ordinance Number 1028 ORDINANCE NO. 1028
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, ADDING SECTION 9-3.502 TO THE MUNICIPAL CODE TO
PROHIBIT CANNABIS DISPENSARIES, CANNABIS MANUFACTURERS,
CULTIVATION, AND CANNABIS DELIVERY IN THE CITY
WHEREAS, in 1996, the voters of the State of California approved
Proposition 215 (codified as Health & Safety Code Section 11362.5 et seq. and
entitled "The Compassionate Use Act of 1996"); and
WHEREAS, the intent of Proposition 215 was to enable seriously ill
Californians to legally possess, use, and cultivate marijuana for medical use
under state law; and
WHEREAS, in 2003, the California Legislature adopted SB 420, the
Medical Marijuana Program ("MMP"), codified as Health and Safety Code
Socotion 11362.7 et seq., which permits qualified patients and their primary
caregivers to associate collectively or cooperatively to cultivate marlimina 4n
rnudIcal purposes without being subject to criminal prosecution under the Penal
Code; and
WHEREAS, neither the Compassionate Use Act ("CUA") nor the MMP
require nor impose an affirmative duty or mandate upon local governments to
allow, authorize, or sanction the establishment of facilities that cultivate or
process medical marijuana within its jurisdiction; and
WHEREAS, in May 2013, the California Supreme Court issued its
decision in City of Riverside v. Inland Empire Patients Health and Wellness
Center, Inc. (2013) 56 Cal. 4th 729, holding that cities have the authority to
regulate or ban outright medical marijuana land uses; and
WHEREAS, under the Federal Controlled Substances Act, codified in 21
U.S.C. Section 801 et seq., the use, possession, and cultivation of marijuana are
unlawful and subject to federal prosecution without regard to a claimed medical
need; and
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the
"Medical Marijuana Regulation and Safety Act" ("Act") into law; and
WHEREAS, the Act becomes effective January 1, 2016 and contains
provisions which allow for local governments to regulate licenses and certain
activities thereunder; and
WHEREAS, the Act contains a provision which sets forth that the State
shall become the sole authority for regulation under certain parts of the Act,
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unless local governments have "land use regulations or ordinances regulating or
prohlbItIng the cultivation of marijuana..." (Health and Safety Godo
§11302.777(c)(4); and
WHEREAS, several California cities have reported negative impaulb 0
marijuana cultivation, processing, and distribution uses, including offensive
odors, illegal sales, and distribution of marijuana, trespassing, theft, violent
robberies and robbery attempts, fire hazards, and problems associated with
mold, fungus, and pests; and
WHEREAS, marijuana plants, as they begin to flower and for a period of
two months or more, produce a strong odor, and detectable far beyond property
boundaries if grown outdoors; and
WHEREAS, the strong smell of marijuana creates an attractive nuisance,
alerting persons to the location of the valuable plants, and creating a risk of
burglary, robbery, or armed robbery; and
WHEREAS, the indoor cultivation of marijuana has potential adverse
effects to the health and safety of the occupants; including structural damage to
tho hullding due to increased moisture and excessive mold growth which rqn
ocour and can pose a risk of fire and electrocution; additionally, the u®O nl
pamllOrImiq and fertilizers can lead to chemical contamination within the struiilltllt
wid
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 nearby homes or businesses
may be negatively impacted by nuisance activity such as loitering or crime; and
WHEREAS, based on the experiences of other cities, these negative
effects on the public health, safety, and welfare are likely to occur, and continue
to occur, in the City due to the establishment and operation of marijuana
cultivation, processing, and distribution uses; and
WHEREAS, the City's Municipal Code ("Code") does not address the
cultivation, processing, delivery and distribution of medical cannabis; and
WI- EIREAS, based on the findings above, the potential establishment of
ogit►ItAbIs dispensaries, cultivation, cannabis manufacturers and dellVttlU 0I
canilable uses in the City without regulation poses a current and immnrIMI(I
Int
1111001111 IIIA public health, safety and welfare in the City due to the negative J
wail AIM other impactfi of such uses as described above; and
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WHEREAS, the issuance or approval of business licenses, subdivisions,
use permits, variances, building permits, or any other applicable entitlement for
cannabis dispensaries, cultivation, cannabis manufacturers and delivery of
cannabis will result in the aforementioned threat to public health, safety, or
welfare.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY SAN JUAN
CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals
The City Council hereby finds that all of the foregoing recitals and the staff
report presented herewith are true and correct and are hereby incorporated and
adopted as findings of the City Council as if fully set forth herein.
SECTION 2. Section 9-3.502 is hereby added to the San Juan
Municipal Code to read as follows:
Sec. 9-3.502 Prohibition on Cannabis
(a) Purpose. The purpose of this Section is to enact and enforce a ban on
all cannabis dispensaries, cannabis manufacturers, cultivation, and cannabis
delivery located within the City limits. Nothing in this Section shall preempt or
make inapplicable any provision of state or federal law.
(b) Prohibited uses. Cannabis dispensaries, cultivation, cannabis
manufacturers, and cannabis delivery, as defined herein, shall be considered
prohibited uses in all zoning districts of the City. No use permit, variance,
building permit, or any other entitlement or permit, whether administrative or
discretionary, shall be approved or issued for the establishment or operation of a
dispensaries, cannabis cultivation, cannabis manufacturers, and cannabis
delivery as defined herein in any zoning district, and no person shall otherwise
establish such businesses or operations in any zoning district.
(c) Penalty for Violation. No person, whether as principal, agent,
employee or otherwise, shall violate, cause the violation of, or otherwise fail to
comply with any of the requirements of this section. Every act prohibited or
declared unlawful, and every failure to perform an act made mandatory by this
section, shall be a misdemeanor or an infraction, at the discretion of the City
Attorney or the District Attorney. In addition to the penalties provided in this
section, any condition caused or permitted to exist in violation of any of the
provisions of this section is declared a public nuisance and may be abated as
provided in Chapter 2, of Title 1 of the San Juan Capistrano Municipal Code
and/or under state law.
Section 3. Appendix A is hereby amended to add the following
definitions.
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"Cannabis" means 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 Illo
plant, Its seeds, or resin. "Cannabis" also means the separated resin, whether
n11.1dM nr purified, obtained from marijuana. "Cannabis" also means marijuano as
deflllet'i by Section 11018 of the Health and Safety Code as enacted by Chalttol'
1407 of the Statutes of 1972.
"Cannabis delivery" means the commercial transfer of cannabis or
cannabis products, and includes origination or termination within the City as well
as a delivery business.
"Cannabis dispensary" means a facility where cannabis, cannabis
products, or devices for the use of cannabis or cannabis products are offered,
either individually or in any combination, for retail sale, including an
establishment that delivers cannabis and cannabis products as part of a retail
sale.
"Cannabis manufacturer" means a person that conducts the production,
preparation, propagation, or compounding of manufactured cannabis, or
cannabis products either directly or indirectly or by extraction methods, or
independently by means of chemical synthesis or by a combination of extraction
and chemical synthesis at a fixed location that packages or repackages mo dlual
Cannabis or cannabis products or labels or relabels its container.
"Cultivation" moans any activity involving the planting, gr(:'Whij,
harvesting, drying, curing, grading, or trimming of cannabis.
SECTION 4. CEQA
The City Council finds that this ordinance is not subject to the California
Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines Sections
15060(c)(3) because this activity is not a project as defined by Section 15378 of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, and
pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with
certainty that it will not have a significant effect or physical change to the
environment.
SECTION 5 Severability
If any section, subsection, subdivision, sentence, clause, phrase, or
porllon of this Ordinance for any reason is held to be invalid or unconstitutionnI
by Ills decision of any court of competent jurisdiction, such decision shall not
affet►I IIIA validity of the remaining portions of this Ordinance. The City Colll li ill
hertiby declares that it would have adopted this Ordinance, and each so.allon,
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subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective
of the fact that any one or more sections, subsections, subdivisions, sentences,
clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. City Clerk's Certification
The City Clerk shall certify to the adoption of this Ordinance and cause
the same to be posted at the duly designated posting places within the City and
published once within fifteen (15) days after passage and adoption as required
by law; or, in the alternative, the City Clerk may cause to be published a
summary of this Ordinance and a certified copy of the text of this Ordinance shall
be posted in the Office of the City Clerk five (5) days prior to the date of adoption
of this Ordinance; and, within fifteen (15) days after adoption, the City Clerk shall
cause to be published the aforementioned summary and shall post a certified
copy of this Ordinance, together with the vote for and against the same, in the
Office of the City Clerk.
PASSED, APPROVED AND ADOPTED thi 5th day of January 20
PAM PATTERSON, ESQ., MAYOR
ATTE
MARIMPRR19, CITY C R
IK
-__ '1
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STATE OF CALIFORNIA }
COUNTY OF ORANGE )SS
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano, do heroby cortify
that the foregoing is a true and correct copy of Ordinance No. 1028 which was regularly
introduced and placed upon its first reading at the Adjourned Regular Meeting of the City
Council on the 18th day of January 2016, and that thereafter, said Ordinance was duly adopted
and passed at the Adjourned Regular Meeting of the City Council on the 25th day of January
2016, by the following vote, to wit:
AY COUNCIL MEMBERS: Allevato, Reeve, Ferguson and Mayor Patterson
NOECOUNCIL MEMBERS: None
ABS COUNCIL MEMBERS: Perry A � rv,
MAR*k0r1g, CI Y C K
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows_
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; That
in compliance with State laws, Government Code section 36933(1) of the State of California,
on the 19th day of January 2016, at least 5 days prior to the adoption of the ordinance, I
caused to be posted a certified copy of the proposed ordinance entitled:
AN ORDINANCE OF THE CITY C NCIL OF THE CITY OF SAN JUAN
CAPISTRANO, ADDING SECTION - .502 TO THE MUNICIPAL CODE TO
PROHIBIT CANNABIS DISPENSA I S, CANNABIS MANUFACTURERS,
CULTIVATION, AND CANNABIS DEL V R1 THE CITY
This document was posted in the Office of th Ci I k
MARIA. I t,ppCITY ER
San Juan Ca ist?ano, Cali��ia
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that
in compliance with State laws, Government Code section 36933(1) of the State of California.
On the 1St day of January 2016, 1 caused to be posted a certified copy of Ordinance No. 1028,
adopted by the City Council on January 25, 2016, entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, ADDING SECTION 9-3.502 TO THE MUNICIPAL CODE TO
PROHIBIT CANNABIS DISPENS�RIE , CANNABIS MANUFACTURERS,
CULTIVATION, AND CANNABIS DE, VE Y IN THE CITY
/ F
This kfo nt was post d in the Office of the City Clerk
MARIA I , CITY C- RK
San Juan,Lapistrano, C"If
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