Ordinance Number 1038ORDINANCE NO. 1038
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, AMENDING SECTION 9-3.502 OF THE
SAN JUAN CAPISTRANO MUNICIPAL CODE TO REGULATE THE
PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA
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. 1038 updates the Zoning 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
Section11362.1 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
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
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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 1 0 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
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
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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, the subject Ordinance is not subject to the California Environmental
Quality Act (CEQA) pursuant to Sections 15060(c)(2), 15060(c)(3) and 15061 (b)(3). The
activity is not subject to CEQA because it will not result in a direct or reasonably
foreseeable indirect physical change in the environment; the activity is not a project as
defined in Section 15378, and 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 seen with certainty that there is no possibility that the
activity may have a significant effect on the environment, the activity is not subject to
CEQA; and
WHEREAS, this Ordinance would amend Section 9-3.502 to clarify the
substantive objectives of the Municipal Code regarding the City's regulation of marijuana
within its City limits and to preemptively address some proposed changes to California
law in the event AUMA passes on November 8, 2016.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA DOES ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals .
The above recitals are true and correct and are incorporated herein by this reference .
SECTION 2. Section 9-3.502 of the San Juan Capistrano Municipal Code
is hereby amended in its entirety to read as follows :
"Section 9-3.502. Regulation of Marijuana
Sec. 9-3.502 (a) Purpose.
The purpose of this Section is to regulate personal, medical, and commercial
marijuana uses . Nothing in this Section shall preempt or make inapplicable any
provision of state or federal law.
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Sec. 9-3.502 (b) Personal Use
1. For purposes of this subsection, personal recreational use,
possession, purchase, transport, or dissemination of
marijuana shall be considered unlawful in all areas of the
City to the extent it is unlawful under California law.
2 . Outdoor Cultivation. A person may not plant, cultivate,
harvest, dry, or process marijuana plants outdoors in any
zoning district of the City. No use permit, building permit,
variance, or any other permit or entitlement, whether
administrative or discretionary, shall be approved or issued
for any such use or activity.
3. Indoor Cultivation.
A. A person may not plant, cultivate, harvest, dry, or
process marijuana plants inside a private residence, or
inside an accessory structure to a private residence located
upon the grounds of a private residence, or inside any other
enclosed structure within any zoning district of the City. No
use permit, building permit, variance, or any other permit or
entitlement, whether administrative or discretionary, shall be
approved or issued for any such use or activity.
B. To the extent a complete prohibition on indoor cultivation
is not permitted under California law, a person may not plant,
cultivate, harvest, dry, or process marijuana plants inside a
private residence, or inside an accessory structure to a
private residence located upon the grounds of a private
residence, unless the person is issued an indoor cultivation
permit by the Planning Division. A person may not plant,
cultivate, harvest, dry, or process marijuana plants inside
any enclosed structure within any zoning district of the City
which is not either a private residence or an accessory
structure to a private residence located upon the grounds of
a private residence.
C. The Planning Division will issue application and
processing guidelines for the indoor cultivation permit. No
indoor cultivation permit shall be issued prior to the release
of these guidelines, and no permit shall be granted which
has not complied fully with the application and processing
requirements.
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Sec. 9-3 .502 (c) Medical Use
1. Cultivation of medical marijuana pursuant to Section
11362.77 of the California Health & Safety Code is subject to
the cultivation requirements laid out in Section 9-3.502 (b).
2 . The establishment or operation of any medical marijuana
collective, cooperative, dispensary, delivery service,
operator, establishment, or provider shall be considered a
prohibited use 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 of any collective,
cooperative, dispensary, delivery service, operator,
establishment, or provider in any zoning district, and no
person shall otherwise establish such businesses or
operations in any zoning district.
Sec . 9-3.502 (d) Commercial Use
1. The establishment or operation of any business of
commercial marijuana activity is prohibited . 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 any such
business or operation. Such prohibited businesses or
operations may include, but are not limited to :
Sec . 9-3.502 (e) Vio lations
A The transportation , delivery, storage, distribution, or sale
of marijuana, marijuana products, or marijuana accessories;
B. The cultivation of marijuana;
C. The manufacturing or testing or marijuana, marijuana
products, or marijuana accessories; or
D. Any other business licensed by the state or other
government entity under Division 10 of the California
Business & Professions Code, as it may be amended from
time to time.
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
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be a m isdemeanor 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 prov ided in Chapter 2 , of Title 1 of this Municipal Code and/or under
state law."
SECTION 3 .
followi ng defin it ions :
Appendix A is hereby amended in part to delete and add the
"Cannabis" meaA&-alt-parts of the p lant Cannabis sativa Linnaeus , Cannabis
indica, of---.Gai=lnabis rudefalis , wl:l~er growing or not; the seeds thereof; the
resin , 'NAetAer crude--Gr--f*lfified, extra cted from an"Y--f)art of the plant ; and--evefY
coffiPE)tlnd , manufacture , salt, deriva#ve , mixttlre, or preparation of the plant, its
seeds, or resin . "Cannaeis" also means the separated resin,whether crude-e-r
13-l:lfi.f.ied, obtained from marijuana. "Cannabis" also means marijuana as defined
by--SeGtion 11018 of..-tl:le Health and Safety-Geee as enacteG-ay Chapter 1407 of
tAe Statutes of 1972.
!.!.Gaooabis d~eaA&-the comm e rcial transfer okar:mabis or--cannabis
PfOEH:Icts , and include~i-Ration or termination within the CitY-ft.S-Well as a
~ti-Sffies&.
"Cannabis dispensary" m ea ns a f a ci lity 1Nhere cannab is, cannae~Eiucts , or
devices for the use of cannabis or cannabis products are offered , eitheF
~·nGivi~rumon, for retail sale, including an establi.shment that
Ge+ivers cannabis a nd cannabis proffi:lcts as part of a retail sale,.
"Canna ·b~l:lfacturer" means a person that coR€1-ucts the produc#on,
f*eparat~oA;----f>.ropagaijon , or compo~ng of man-ufactured can~
can-nab+s-f:HOEitlc-ts-eitAer directly-or:--ffid.irectly or by extraction-methods, or
ffiaepen-doo.t:ly by means of chemfGa+-s.yn-tl=e&i&-or--9y--a--oombin-a.Hon of extraction
and ch~sis at a fixed loca.OOn that packages or repackages-me€Hc-al
cannabis or cannaeis products or labels or relabels its container,.
~y.l#vation" m e an s any a ctiv#y involving the planting , growing , harvesting.,
Gfyi-ng, curing, graffin§T-Or trimming of cannab is .
"Commercial marijuana activity" includes the cultivation, possession,
manufacture , distribution, processing , storing, laboratory testing, labeling,
transportation , distribution, delivery or sale of marijuana and marijuana products.
"Cultivation " means any activity involving the planting, growing , harvesting ,
drying , curing, grading , or trimming of marijuana.
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"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.
"Distribution" means the procurement, sale, and transport of marijuana and
marijuana products between entities for commercial use purposes.
"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.
"Manufacture" means to compound, blend, extract, infuse, or otherwise make or
prepare a marijuana product.
"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:
1. Industrial hemp, as defined in Section 11018.5 of the California
Health & Safety Code; or
2. The weight of any other ingredient combined with marijuana to
prepare topical or oral administrations, food, drink, or other product.
"Marijuana accessories" means any equipment, products or materials of any kind
which are used, intended for use, or designed for use in planting, 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.
"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.
"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.
"Private residence" means a house, an apartment unit, a mobile home, or other
similar dwelling.
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"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 .
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 4. CEQA.
This 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 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 5. Custodian of Records .
The documents and materials that constitute the record of proceedings on which
this 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 6 . Restatement of Existing 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 .
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SECTION 7. Severability.
If any section, sentence, clause or phrase of this Ordinance or the application
thereof to any entity, person or circumstance is held for any reason to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or
applications of this Ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this Ordinance are severable. The City
Council and the people of the City of San Juan Capistrano hereby declare that they
would have adopted this Ordinance and each section, sentence, clause or phrase
thereof, irrespective of the fact that any one or more section, subsections, sentences,
clauses or phrases be declared invalid or unconstitutional.
SECTION 8. Effective Date .
This Ordinance shall become effective thirty (30) days following its adoption .
SECTION 9. Publicat ion.
The City Clerk shall certify to the adoption of this Ordinance. Not later than
fifteen (15) days following the passage of this Ordinance, the Ordinance, or a summary
thereof, along with the names of the City Council members voting for and against the
Ordinance, shall be published in a newspaper of general circulation in the City of San
Juan Capistrano.
PASSED, APPROVED AND ADOPTED on this 181h day of October 2016 .
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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 hereby
certify that the foregoing is a true and correct copy of Ordinance No. 1038 that was
adopted and passed at the Regular Meeting of the City Council on the 18th day of
Oct er 2016, by the following vote, to wit:
OUNCIL MEMBERS: Allevato, Perry, Reeve, Ferguson, and Mayor Patterson
OUNCIL MEMBERS: None
UNCIL MEMBERS: None
STATE OF CALIFORNI )
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 21st day of October 2016, I caused to be posted a certified copy of Ordinance
No. 1038, adopted by the City Council on October 18, 2016, entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA, AMENDIN SECTION 9-3.502 OF THE
SAN JUAN CAPISTRANO MUNI ~ IP L CODE TO REGULATE THE
PERSONAL, MEDICAL, AND CO E! 0 L USE OF MARIJUANA
I This document was posted in the Office 'f e
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