CC Ordinance 2197
ORDINANCE NO. ~tq~
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CAMPBELL, CALIFORNIA, REAFFIRMING
AND IMPOSING AN EXPRESS BAN ON
MARIJUANA PROCESSING, MARIJUANA
DELIVERY, AND MARIJUANA DISPENSARIES IN
THE CITY OF CAMPBELL
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" referred to herein as the "CUA");
WHEREAS, the intent of the CUA was to enable seriously ill Californians to
legally possess, use, and cultivate marijuana for medical use under state law. once a
physician has deemed the use beneficial to a patient's health;
WHEREAS, in 2003, the California Legislature adopted SB 420, the Medical
Marijuana Program ("MMP"), codified as Health and Safety Code Section 11362.7 et
seq., 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;
WHEREAS, 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 or process medical marijuana within its jurisdiction;
WHEREAS, in May 2013, the California Supreme Court issued its decision in
City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., et al.,
holding that cities have the authority to ban medical marijuana land uses;
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;
WHEREAS, on October 9, 2015, Governor Jerry Brown signed the "Medical
Marijuana Regulation and Safety Act" (" Act"), which is comprised of the state legislative
bills known as AB 243, AB 266, and SB 643, into law;
WHEREAS, the Act becomes effective January 1, 2016 and contains provisions
that govern the cultivating, processing, transporting, testing, and distributing of medical
cannabis to qualified patients. The Act also contains new statutory provisions that:
• Allow local governments to enact ordinances expressing
their intent to prohibit the cultivation of marijuana and their intent
not to administer a conditional permit program pursuant to Health &
Safety Code Section 11362.777 for the cultivation of marijuana
(Health & Safety Code § 11362.777(c)(4));
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• Expressly provide that the Act- does not supersede or limit
local authority for local law enforcement activity, enforcement of
local ordinances, or enforcement of local permit or licensing
requirements regarding marijuana. (Business & Professions Code §
19315(a));
• Expressly provide that the Act does not limit the authority or
remedies of a local government under any provision of law
regarding marijuana, including but not limited to a local
government's right to make and enforce within its limits all police
regulations not in conflict with general laws (Business &
Professions Code § 19316(c)); and
• Require a local government that wishes to prevent marijuana
delivery activity, as defined in Business & Professions Code section
19300.5(m) of the Act, from operating within the local government's
boundaries to enact an ordinance affirmatively banning such
delivery activity (Business & Professions Code § 19340(a));
WHEREAS, many California cities, as well as the City of Campbell, have
reported negative impacts of marijuana processing and distribution activities, 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;
WHEREAS, marijuana plants, as they begin to flower and for a period of two
months or more, produce a strong odor, offensive to many people, and detectable far _
beyond property boundaries if grown outdoors; ~ '
WHEREAS, in the case of multiple qualified patients who are in control of the
same legal parcel, or parcels, of property, or in the case of collective or cooperative
cultivation, or in the case of a caregiver growing for numerous patients, a very large
number of plants could be cultivated on the same legal parcel, or parcels, within the City
of Campbell ("City");
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;
WHEREAS, the indoor cultivation of marijuana has potential adverse effects to
the structural integrity of the building, and the use of high wattage grow lights and
excessive use of electricity increases the risk of fire which presents a clear and present
danger to the building and its occupants;
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
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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;
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 processing and distribution
activities;
WHEREAS, Section 7 of Article 11 of the California Constitution and Section
2.04.010 of the Campbell Municipal Code provides the City Council with the authority to
make and enforce all laws; rules and regulations with respect to not in conflict with
general laws, and the power to exercise, or act pursuant to any and all rights, powers,
and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, under the Campbell Municipal Code ("CMC") every zoning district in
the City of Campbell prohibits "[a]ny use inconsistent with state or federal law;"
WHEREAS, the cultivation, processing and distribution of medical marijuana is
already prohibited in the City to pursuant to the aforementioned zoning provisions that
prohibit "[a]ny use inconsistent with state or federal law;"
WHEREAS, based on the findings above, the potential establishment of the
processing and distribution of medical marijuana in the City without an express ban on
such activities poses a current and immediate threat to the public health, safety, and
welfare in the City due to the negative impacts of such activities as described above;
WHEREAS, the issuance or, approval of business licenses, subdivisions, use
permits, variances, building permits, or any other applicable entitlement for marijuana
processing, delivery, and/or distribution will result in the aforementioned threat to public
health, safety, and welfare; and
WHEREAS, it is in the interest of the City, its residents, and its lawfully permitted
businesses that the City adopts this ordinance to expressly confirm and reaffirm the
prohibition on the establishment and operation of marijuana processing, delivery, and
dispensary activities as well as the issuance of any use permit, variance, building
permit, or any other entitlement, license, or permit for any such activity, except where
the City is preempted by federal or state law from. enacting a prohibition on any such
activity or a prohibition on the issuance of any use permit, variance, building permit, or
any other entitlement, license, or permit for any such activity. .
NOW THEREFORE, the City Council of the City of Campbell does ordain as
follows:
Section 1. The City Council of the City of Campbell hereby finds that the above
recitals are true and correct and are incorporated into the substantive portion of this
ordinance.
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Section 2: The City Council hereby adds Chapter 8.38 entitled "Medical
Marijuana" to Title 8 of Campbell Municipal Code to read as follows:
8.38.010 Legislative Findings and Statement of Purpose.
A. The City Council finds that the prohibitions on marijuana
processing, marijuana delivery, and marijuana dispensaries are
necessary for the preservation and protection of the public health,
safety, and welfare for the City and its community. The City
Council's prohibition of such activities is within the authority
conferred upon the City Council in state law.
B. On October 9, 2015, the governor signed the "Medical
Marijuana Regulation and Safety Act" ("Act") into law. The Act
becomes effective January 1, 2016 and contains new statutory
provisions that:
1.. Allow local governments to enforce new and existing
ordinances expressing their intent to prohibit the cultivation
of marijuana and their intent not to administer a conditional
permit program pursuant to Health & Safety Code section
11362.777 for the cultivation of marijuana (Health & Safety
Code § 11362.777(c)(4));
2. Expressly provide that the Act does not supersede or
limit local authority for local law enforcement activity,
enforcement of local ordinances, or enforcement of local
permit or licensing requirements regarding marijuana
(Business & Professions Code § 19315(a));
3. Expressly provide that the Act does not limit the
authority or remedies of a local government under any
provision of law regarding marijuana, including but not
limited to a local government's right to make and enforce
within its limits all police regulations not in conflict with
general laws (Business & Professions Code § 19316(c));
and
4. Require a local government that wishes to prevent
marijuana delivery activity, as defined in Business &
Professions Code section 19300.5(m) of the Act, from
operating within the local government's boundaries to enact
an ordinance affirmatively banning such delivery activity
(Business & Professions Code § 19340(a)).
C. The City Council finds that this Chapter: (1) acknowledges
that existing provisions of Title 21 of the Campbell Municipal Code
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already prohibit the cultivation, processing or dispensing of
marijuana in the City and preclude a conditional permit program
pursuant to Health & Safety Code section 11362.777 for the
cultivation of marijuana in the City; (2) exercises its local authority
to enact and enforce local regulations and ordinances, including
those regarding the permitting, licensing, or other entitlement of the
activities prohibited by this Chapter; (3) exercises its police power
to enact and enforce regulations for the public benefit, safety, and
welfare of the City and its community; and (4) expressly prohibits
the delivery of marijuana in the City.
8.38.020 Definitions.
For purposes of this Chapter, the following definitions shall apply:
A. "Marijuana" means any or all parts of the plant Cannabis
sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether
growing or not; the seeds thereof; the resin or separated resin,
whether crude or purified, extracted from any part of the plant; and
every compound, manufacture, salt, derivative, mixture, or
preparation of the plant, its .seeds or resin, including marijuana
infused in foodstuff or any other ingestible or consumable product
containing marijuana. The term "marijuana" shall also include
"medical marijuana" as such phrase is used in the August 2008
Guidelines for the Security and Non-Diversion of Marijuana Grown
for Medical Use, as may be amended from time to time, that was
issued by the office of the Attorney General for the state of
California or subject to the provisions of California Health and
Safety Code Section 11362.5 (Compassionate Use Act of 1996) or
California Health and Safety Code Sections 11362.7 to 11362.83
(Medical Marijuana Program Act); and the term shall also include
the substance defined as "cannabis" in section 19300.5 of the
California Business and Professions Code or any successor statute
thereto;
B. "Marijuana Processing" means any method used to prepare
marijuana or its byproducts for commercial retail and/or wholesale,
including but not limited to: drying, cleaning, curing, packaging, and
extraction of active ingredients to create marijuana related products
and concentrates;
C. "Marijuana Delivery" shall have the same meaning as the
term "delivery" defined in section 19300.5 of the California Business
and Professions Code or any successor statute thereto;
{
D. "Marijuana Dispensary" or "Marijuana Dispensaries" means
any business, office, store,. facility, location, retail storefront or
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wholesale component of any establishment, cooperative or
collective that delivers (as defined in Business & Professions Code
section 19300.5(m) or any successor statute thereto) whether
mobile or otherwise, dispenses, distributes, exchanges, transmits,
transports, sells or provides marijuana to any person for any
reason, including members of any medical marijuana cooperative
or collective consistent with the August 2008 Guidelines for the
Security and Non-Diversion of Marijuana Grown for Medical Use,
as may be amended from time to time, that was issued by the office
of the Attorney General for the state of California, or for the
purposes set forth in California Health and Safety Code Section
11362.5 (Compassionate Use Act of 1996) or California Health and
Safety Code Sections 11362.7 to 11362.83 (Medical Marijuana
Program Act). The term shall include a "dispensary" as defined in
section 19300.5 of the California Business and Professions Code or
any successor statute thereto;
E. "Medical marijuana collective" or "cooperative or collective"
means any group that is collectively or cooperatively cultivating arid
distributing marijuana for medical purposes that is organized in the
manner set forth in the August 2008 Guidelines for the Security and
Non-Diversion of Marijuana Grown for Medical Use, as may be
amended from time to time, that was issued by the office of the
Attorney General for the state of California or subject to the
provisions of California Health and Safety Code Section 11362.5
(Compassionate Use Act of 1996) or California Health and Safety
Code Sections 11362.7 to 11362.83 (Medical Marijuana Program
Act).
8.38.030 Prohibited Activities.
Marijuana Processing, Marijuana Delivery, , and Marijuana
Dispensaries shall be prohibited activities in the City, except where
the City is preempted by federal or state law from enacting a
prohibition on any such activity. No use permit, variance, building
permit, or any other entitlement, license, or permit, whether
administrative or discretionary, shall be approved or issued for the
activities of Marijuana Processing, Marijuana Delivery, or the
establishment, or operation of a Marijuana Dispensary in the City,
and no person shall otherwise establish or conduct such activities
in the City, except where the City is preempted by federal or state
law from enacting a prohibition on any such activity for which the
use permit, variance, building permit, or any other entitlement,
license, or permit is sought.
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8.38.040 Public Nuisance.
Any violation of this chapter is hereby declared to be a public
nuisance.
8.38.050 Violations.
Any violation of this chapter shall be punishable as provided in
Chapter 6.10 Campbell Municipal Code or any successor
provisions thereto.
8.38.070 Severability.
If any section, subsection, sentence or clause of this chapter is, for
any reason, 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.
Section 3: Subparagraph (Q) of paragraph (6) of subsection (a) of section
6.10.020 of the Campbell Municipal Code is hereby amended to read (with underlining
indicating new text):
A violation of any of the provisions of Campbell Municipal Code Chapters 5.24,
5.28, 5.29, 5.30, 5.36, 5.48, 5.58, 6.11, 6.20, 6.30, 8.34, 8~ 11.04, 11.08,
11.12, 11.16, 11.32, 13.04, or 14.02,
Section 4: The provisions of this ordinance are declaratory of existing law in the
City of Campbell, and are intended to clarify and facilitate, and not to supersede the
existing provisions contained in Title 21 of the Campbell Municipal Code.
Section 5: If any section, subsection, sentence, clause or phrase of this
ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance, and each
section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases be declared, invalid
or unconstitutional.
Section 6: The City Council finds the approval of this ordinance is not subject to
the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly. Alternatively, the City Council finds the
approval of this ordinance is not a project under CEQA Regulation Section 15061(b)(3)
because it has no potential for causing a significant effect on the environment.
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Section 7: Effective Date. This ordinance shall take effect thirty (30) days after
passage thereof.
Section 8: Publication. This ordinance shall be published in accordance with the
provisions of Government Code Section 36933.
PASSED AND ADOPTED this 15~ day of March, 2016 by the following roll call vote:
AYES: Councilmembers: Kotowski, Resnikoff, Cristina, Gibbons, Baker
NOES: Councilmembers: None
ABSENT: Councilmembers: None
.APPROVED:
(~ ~ . ~,~ Imo----
J on T. Baker, Mayor
ATTEST:
1~
Wendy od, City Clerk
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