Ordinance Number 1037ORDINANCE NO. 1037
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ENACTED
PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858
ESTABLISHING A TEMPORARY MORATORIUM ON MARIJUANA USES
PENDING THE ENACTMENT OF AN UPDATE TO THE CITY'S
MUNICIPAL CODE
WHEREAS, the City of San Juan Capistrano, California (the "City") is a municipal
corporation, duly organized under the constitution and laws of the State of California;
and
WHEREAS, California Government Code section 65800 et seq. authorizes the
adoption and administration of zoning laws, ordinances, rules and regulations by cities
as a means of implementing the General Plan; and
WHEREAS, the City passed Ordinance No. 1028 on January 25, 2016; and
WHEREAS, the City desires to continue to ban all marijuana dispensaries,
cultivation, and delivery service land uses within City Limits to the extent allowed by
California law. Ordinance No. 1037 updates the Municipal Code to effectuate that aim;
and
WHEREAS, on June 28, 2016, the Secretary of State certified Proposition 64, the
Control, Regulate, and Tax Adult Use of Marijuana Act ("AUMA"), for the November 8,
2016 ballot; and
WHEREAS, the AUMA would become law if a majority of the electorate votes
"Yes" on .the proposition; and
WHEREAS, the AUMA would regulate, among other items, the use of marijuana
for personal and commercial purposes, including the recreational use of marijuana by
adults over 21 years of age; and
WHEREAS, to regulate personal use of marijuana the AUMA would add
Section 11362.1 to the Health and Safety Code, which makes it "lawful under state and
local law" for persons 21 years of age or older to "possess, process, transport,
purchase, obtain, or give away to persons 21 years of age or older without any
compensation whatsoever" up to 28.5 grams of marijuana in the form of concentrated
cannabis or not more than eight grams of marijuana in the form of concentrated
cannabis contained in marijuana products; and
WHEREAS, the AUMA would make it lawful for those individuals to "possess,
plant, cultivate, harvest, dry, or process not more than six living marijuana plants and
possess the marijuana produced by the plants; and
WHEREAS, the AUMA would make it lawful for those individuals to smoke or
ingest marijuana or marijuana products; and
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WHEREAS, should the AUMA pass, many of its provisions would take effect on
November 9, 2016; and
WHEREAS, to regulate commercial use of marijuana, the AUMA would add
Division 10 (Marijuana) to the Business & Professions Code, which grants state
agencies "the exclusive authority to create, issue, renew, discipline, suspend, or revoke"
licenses for businesses including the transportation, storage, distribution, sale,
cultivation, manufacturing, and testing of marijuana; and
WHEREAS, the AUMA provides that the above state agencies shall promulgate
rules and regulations and shall begin issuing licenses under Division 10 by January 1,
2018; and
WHEREAS, the AUMA states that a local jurisdiction shall not prevent
transportation of marijuana or marijuana products on public roads by a licensee
transporting marijuana or marijuana products in compliance with Division 1 0; and
WHEREAS, the AUMA would authorize cities to "reasonably regulate" without
completely prohibiting cultivation of marijuana inside a private residence or inside an
"accessory structure to a private residence located upon the grounds of a private
residence that is fully enclosed and secure"; and
WHEREAS, the AUMA would authorize cities to completely prohibit outdoor
cultivation on the grounds of a private residence, up to and until a "determination by the
California Attorney General that nonmedical use of marijuana is lawful in the State of
California under federal law"; and
WHEREAS, the AUMA would authorize cities to completely prohibit the
establishment or operation of any marijuana business licensed under Division 10 within
its jurisdiction, including marijuana dispensaries, marijuana retailers, and marijuana
delivery services; and
WHEREAS, absent appropriate local regulation authorized by the AUMA, state
regulations will control; and
WHEREAS, the "Medical Marijuana Regulation and Safety Act" ("MMRSA"),
which took effect January 1, 2016, regulates use of marijuana for medical purposes;
and
WHEREAS, the MMRSA contains a provision which provides that the State shall
become the sole authority for regulation under certain parts of the Act unless local
governments pass their own regulations; and
WHEREAS, in May 2013, the California Supreme Court held in City of Riverside
v. Inland Empire Patients Health and Wei/ness Center, Inc., 56 Cal. 4th 729 (2013) that
cities have the authority to regulate or ban outright medical marijuana land uses; and
WHEREAS, the California 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
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WHEREAS, 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; and
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the health and safety of the occupants; including structural damage to the building due
to increased moisture and excessive mold growth which can occur and can pose a risk
of fire and electrocution; additionally, the use of pesticides and fertilizers can lead to
chemical contamination within the structure; 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, based on the findings above, the potential establishment of
marijuana cultivation and other uses in the City without regulation poses a current and
immediate threat to the public health, safety, and welfare in the City due to the negative
land use and other impacts of such uses as described above; and
WHEREAS, the issuance or approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for marijuana
dispensaries, cultivation, manufacturers and delivery will result in the aforementioned
threat to public health, safety, or welfare; and
WHEREAS, it is in the interest of the City, its residents, and its lawfully permitted
businesses that City staff undertake a study to consider zoning, zoning ordinance
amendments, and/or other measures to regulate the establishment and operation of
marijuana dispensaries, cultivation, manufacturers, and delivery of marijuana uses in
the City; and
WHEREAS, California Government Code Section 65858 expressly authorizes
the City Council to adopt by four-fifths (4/5) vote, without following the procedures
otherwise required for the adoption of a zoning ordinance, an urgency ordinance which
is necessary for the immediate protection of the public health, safety, and welfare; and
WHEREAS, it is the present intention of the City Council to keep this interim
Urgency Ordinance in effect only until the adoption of an ordinance establishing
regulations regarding commercial and industrial cultivation, processing, and distribution
of marijuana in the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals
The City Council of the City of San Juan Capistrano hereby finds and determines
that all of the above Recitals are true and correct and incorporates such Recitals into
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this Urgency Ordinance as if sully set forth herein .
SECTION 2. Findings.
The City Council hereby finds, determines, and declares that this Urgency
Ordinance adopted pursuant to California Government Code Section 65858 is
necessary because:
A. Certain provisions of the AUMA become effective November 9, 2016, and
contain provisions which allow for local governments to reasonably
regulate or ban certain activities thereunder.
B. To allow time for the City to consider, study, and enact regulations or a
ban for various marijuana cultivation, processing, and distribution uses, it
is necessary to temporarily suspend the establishment of any uses or the
approval of any and all use permits, variances, building permits, or any
other entitlement or permit authorizing the establishment of marijuana
cultivation uses, marijuana processing uses, and marijuana dispensaries
as defined herein, as such uses may be in conflict with the development
standards and implementation regulations that the City will ultimately
impose after the City has considered and studied this issue, which shall be
accomplished within a reasonable time.
C. A moratorium will provide the City with time to study marijuana cultivation
uses, marijuana processing uses, and marijuana dispensaries and
potential impacts such land uses may have on the public health, safety,
and welfare.
D. Without the imposition of a temporary moratorium on the establishment of
marijuana cultivation, the City anticipates that one (1) or more marijuana
cultivation uses may locate in the City before a non-urgency ordinance
would become effective, and that such uses may pose serious risks to the
public health, safety, and welfare.
E. There is a current and immediate threat to the public health, safety, and
welfare of the City and its community, thereby necessitating the immediate
enactment of this moratorium as an urgency ordinance in order to ensure
that permits for such facilities and uses are established only under
adequate regulations. Imposition of a moratorium will allow the City
sufficient time to conclude the preparation and enactment of a
comprehensive ordinance for the regulation of these uses.
SECTION 3 . Urgent Need .
Based on the foregoing recitals and findings, all of which are deemed true and
correct, this interim ordinance is urgently needed for the immediate preservation of the
public health, safety, and welfare. This interim ordinance shall take effect immediately
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upon adoption and shall be of no further force and effect forty-five (45) days following
the date of its adoption unless extended in accordance with the provisions set forth in
Government Code Section 65858.
SECTION 4. Definitions.
For purposes of this Urgency Ordinance, the following definitions shall apply :
A. "Commercial marijuana activity" includes the cultivation, possession,
manufacture, distribution, processing, storing, laboratory testing , labeling,
transportation, distribution, delivery or sale of marijuana and marijuana
products.
B. "Cultivation" means any activity involving the planting, growing ,
harvesting, drying, curing, grading , or trimming of marijuana .
C. "Delivery" means the commercial transfer of marijuana or marijuana
products to a customer . "Delivery" also includes the use by a retailer of
any technology platform owned and controlled by the retailer, or
independently licensed under California law, that enables customers to
arrange for or facilitate the commercial transfer by a licensed retailer of
marijuana or marijuana products.
D. "Distribution " means the procurement, sale , and transport of marijuana
and marijuana products between entities for commercial use purposes .
E. "Licensee" means the holder of any state issued license related to
marijuana activities, including but not limited to licenses issued under
Division 10 of the Business & Professions Code .
F. "Manufacture" means to compound, blend, extract, infuse, or otherwise
make or prepare a marijuana product.
G. "Marijuana" means all parts of the plant Cannabis sativa L., whether
growing or not; the seeds thereof; the resin extracted from any part of the
plant; and every compound, manufacture , salt, derivative, mixture, or
preparation of the plant , its seeds or resin. It does not include :
i. Industrial hemp, as defined in Section 11018.5 of the California
Health & Safety Code; or
ii. The weight of any other ingredient combined with marijuana to
prepare topical or oral administrations, food, drink, or other product.
H . "Marijuana accessories " means any equipment, products or materials of
any kind which are used , intended for use , or designed for use in planting ,
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propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing,
analyzing, packaging, repackaging, storing, smoking, vaporizing, or
containing marijuana, or for ingesting, inhaling, or otherwise introducing
marijuana or marijuana products into the human body.
I. "Marijuana products" means marijuana that has undergone a process
whereby the plant material has been transformed into a concentrate,
including, but not limited to, concentrated cannabis, or an edible or topical
product containing marijuana or concentrated cannabis and other
ingredients.
J. "Person" includes any individual, firm, co-partnership, joint venture,
association, corporation, limited liability company, estate, trust, business
trust, receiver, syndicate, or any other group or combination acting as a
unit, and the plural as well as the singular.
K. "Private residence" means a house, an apartment unit, a mobile home, or
other similar dwelling.
L. "Sale" includes any transaction whereby, for any consideration, title to
marijuana is transferred from one person to another, and includes the
delivery of marijuana or marijuana products pursuant to an order placed
for the purchase of the same and soliciting or receiving an order for the
same, but does not include the return of marijuana or marijuana products
by a licensee to the licensee from whom such marijuana or marijuana
product was purchased.
M. Any term defined in this Section also means the very term as defined in
the California Business & Professions Code or the California Health &
Safety Code, unless otherwise specified."
SECTION 5 . Prohibited Use.
For the period of this Urgency Ordinance or any extension thereof marijuana
dispensaries, cultivation, manufacturers, and delivery of marijuana, as defined herein,
shall be considered prohibited uses in all zoning districts of the City. During the effective
period of this ordinance, no such use shall be established or continued if previously
established, and 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 dispensary, marijuana cultivation use, marijuana
manufacturing use, or delivery or marijuana as defined herein in any zoning district, and
no person shall otherwise establish such businesses or operations in any zoning district.
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SECTION 6 . Penalty f or V iolation .
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 this Municipal Code and/or under state law.
SECTION 7 . Au th o rity .
This interim Urgency Ordinance is enacted pursuant to the authority conferred upon
the City Council of the City of San Juan Capistrano by Government Code Section 65858,
and therefore shall be in full force and effect immediately upon its adoption by a four-fifths
(4/5) vote of the City Council. This interim Urgency Ordinance shall continue in effect for
forty-five (45) days from the date of its adoption and shall thereafter be of no further force
and effect unless, after notice pursuant to Government Code Section 65090 and a public
hearing, the City Council extends this interim urgency ordinance for an additional period of
time pursuant to Government Code 65858. Government Code 65858 further provides that
such an urgency measure may be extended following compliance with that section for up
to an additional twenty-two (22) months and fifteen (15) days beyond the original forty-five
(45) day period.
SECTION 8. Council Direction.
During the period of this Urgency Ordinance, and any extension thereof, the City
Council hereby directs City staff to: (1) review and consider options for the regulation or
prohibition of marijuana cultivation, marijuana manufacturing, and marijuana distribution
uses in the City, including but not limited to the development of appropriate rules and
regulations governing the location and operation of such uses ; and (2) to issue a written
report describing the measures which the City has taken to address the conditions
which led to the adoption of this ordinance with the City Council ten (1 0) days prior to
the expiration of this interim urgency ordinance, or any extension thereof, and such
report shall be made available to the public.
SECTION 9. CEQA.
This Urgency Ordinance is not a project within the meaning of Section 15378 of the
State of California Environmental Quality Act ("CEQA") Guidelines, because it has no
potential for resulting in physical change in the environment, directly or indirectly. The City
Council further finds, under Title 14 of the California Code of Regulations, Section
15061 (b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in
that the activity is covered by the general rule that CEQA applies only to projects which
have the potential for causing a significant effect on the environment. Where it can be
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seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is not subject to CEQA. The City Council ,
therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of
Orange in accordance with CEQA Guidelines .
SECTION 10 . Severabil ity .
If any section, subsection, subdivision , sentence, clause, phrase, or portion of this
Urgency Ordinance for any reason is held to be invalid or unconstitutional by the decision
of any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Urgency Ordinance. The City Council hereby declares that it
would have adopted this Urgency Ordinance, and each section , 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 11 . Custodian of Records .
The documents and materials that constitute the record of proceedings on which
this Urgency Ordinance is based are located at the City Clerk 's office located at 32400
Paseo Adelanto, San Juan Capistrano, California 92775. The custodian of these records is
the City Clerk.
SECTION 12 . Res ta teme nt of Existi ng Law .
Neither the adoption of this ordinance nor the repeal of any other ordinance of
this City shall in any manner affect the prosecution for violations of ordinances , which
violations were committed prior to the effective date hereof, nor be construed as a
waiver of any license or penalty or the penal provisions applicable to any violation
thereof. The provisions of this ordinance, insofar as they are substantially the same as
ordinance provisions previously adopted by the City relating to the same subject matter
or relating to the enumeration of permitted uses under the City's zoning code, shall be
construed as restatements ·and continuations , and not as new enactments.
SECTION 13. City Clerk's Certification .
The City Clerk shall certify as to the adoption of this Urgency Ordinance and shall
cause it to be published within fifteen (15) days of the adoption and shall post a certified
copy of this Urgency Ordinance, including the vote for and against the same, in the
Office of the City Clerk, in accordance with California Government Code Section 36933.
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PASSED, APPROVED AND ADOPTED this 4th day of October 2016 .
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 hereby
certify that the foregoing is a true and correct copy of Urgency Ordinance No. 1037
that was adopted and passed at the Regular Meeting of the City Council on the 4th day
of October 2016, by the following vote, to wit:
AYES : COUNCIL MEMBERS: Allevato, Perry, Reeve, Ferguson, and Mayor Patterson
NOES COUNCIL MEMBERS: None
ABSE U OUNCIL EMBERS: None
M
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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 ih day of October 2016, I caused to be posted a certified copy of Urgency
Ordinance No. 1037, adopted by the City Council on October 4, 2016, entitled:
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SAN JUAN CAPISTRANO, CALIFORNIA, ENACTED PURSUANT TO
CALIFORNIA GOVERNMENT CODE SECTION 65858 ESTABLISHING A
TEMPORARY MORATORIUM ON MARIJUANA USES PENDING THE
ENACTMENT OF AN UPDATE TO THE CITY 'S MUNICIPAL CODE
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