CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL
Staff Report

November 27, 2017

PUBLIC HEARINGS

TO: Honorable Mayor and City Council Members

SUBMITTED BY: Marc Wiener, Community Planning and Building Director

APPROVED BY: Chip Rerig, City Administrator

Consideration of an Urgency Ordinance prohibiting the sale, use and cultivation of

SUBJECT:
cannabis.

RECOMMENDATION:
Adopt the Urgency Ordinance prohibiting the sale, use, and cultivation of cannabis.
BACKGROUND/SUMMARY:

BACKGROUND: The California Department of Consumer Affairs, Department of Food and Agriculture, and
Department of Public Health are responsible under Proposition 64 for issuing state licenses to commercial
recreational cannabis businesses. These agencies will begin issuing state cannabis licenses in January 2018.
The City must adopt an ordinance and have it go into effect prior to this date in order to retain local control over
cannabis activities.

On October 3, 2017, the City Council conducted a first reading of an Ordinance adding Municipal Code Section
17.53 and repealing 17.14.240, prohibiting the sale, use and cultivation of cannabis. A second reading of the
Ordinance was scheduled for the November 7, 2017 regular City Council meeting, but due to a public noticing
error, the second reading has been postponed to the December 5, 2017 regular City Council meeting.
Because ordinances do no go into effect until 30 days after adoption, there is brief window in early January in
which cannabis businesses would be allowed in the City under state law if the City does not take preventative
action. Staff recommends that the City Council adopt the attached Urgency Ordinance, which will allow the City
to maintain local control over cannabis activities until the permanent Ordinance goes into effect on January 5,
2018.

The Urgency Ordinance requires a four-fifths vote of the City Council and goes into effect immediately and is
valid for 45 days after adoption(Attachment 3). The code amendments contained in the Urgency Ordinance are
identical to the permanent Ordinance that the City Council has reviewed in October and will adopt in December
of 2017. The following summarizes some of the key points of the Urgency Ordinance:

-Prohibits commercial cannabis activities in all areas of the City. Deliveries are prohibited, except for deliveries
of medical cannabis by a primary caregiver to one of the primary caregivers qualified patients as permitted by
Business and Professions Code section 26033.
-Continues the existing ban on medicinal cannabis cooperatives, collectives, dispensaries, establishments or
providers.

-Prohibits smoking of cannabis in all public places and any place that is open to the public.

-Prohibits all cannabis cultivation, except for cultivation of no more than six living cannabis plants by an individual
inside his or her private residence, or inside an accessory structure to his or her private residence located upon
the grounds of that private residence that is fully enclosed and secured against unauthorized entry. Such private
cultivation requires the property owners consent and compliance with all applicable Building Code
requirements. The use of gas products (CO2, butane, propane, natural gas, etc.) to enhance indoor cultivation
is prohibited.

ENVIRONMENTAL REVIEW: The proposed Zoning Ordinance Amendment is not subject to the California
Environmental Quality Act (CEQA) pursuant to the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, sections: 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical
change in the environment); 15060(c)(3) (the activity is not a project as defined in Section 15378); and 15061(b)
(3), because 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. The proposed ordinance maintains the status quo
and prevents changes in the environment. Because there is no possibility that this ordinance may have a
significant adverse effect on the environment, the adoption of this ordinance is exempt from CEQA.

Accordingly, staff recommends that the City Council adopt the Urgency Ordinance prohibiting the sale, use, and
cultivation of cannabis in the City of Carmel-by-the-Sea.

FISCAL IMPACT:
The proposed Ordinance represents a continuation of existing enforcement policies regarding cannabis
activities, so there would be no change in the fiscal impact for the City.

PRIOR CITY COUNCIL ACTION:

On January 5, 2016, the City Council adopted an Ordinance adding Section 17.14.240 to the Municipal Code
regulating medical marijuana in response to the Medical Cannabis Regulation and Safety Act.

On October 3, 2017, the City Council conducted a first reading of an ordinance adding Municipal Code Section
17.53 and repealing 17.14.240 amending the Citys regulations concerning the sale, use and cultivation of
cannabis.
ATTACHMENTS:

Attachment 1 - Cannabis Urgency Ordinance

Attachment 2 - Code Amendments
Attachment 3 - Government Code
 Attachment 1

CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL

ORDINANCE NO. 2017-____

AN URGENCY ORDINANCE PROHIBITING THE SALE, USE AND CULTIVATION OF CANNABIS

WITHIN THE CITY OF CARMEL-BY-THE-SEA
__________________________________________________________________________________

WHEREAS, in 1996, the voters of the State of California approved Proposition 215 (the
Compassionate Use Act or CUA); and

WHEREAS, on January 1, 2004, the California Legislature enacted the "Medical Marijuana
Program Act" or MMPA, to clarify the scope of the Compassionate Use Act, to establish a voluntary
program for identification cards issued by counties for qualified patients and primary caregivers, and to
provide criminal immunity to qualified patients and primary caregivers for certain activities involving
medical marijuana, including the collective or cooperative cultivation of medical marijuana; and

WHEREAS, on October 9, 2015, Assembly Bills 243 and 266 and Senate Bill 643 (collectively,
the Medical Marijuana Regulation and Safety Act or MMRSA) were enacted to create a state
regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana,
the manufacturing of medical marijuana products, and physician recommendations for medical
marijuana; and

WHEREAS, on June 27, 2016 Senate Bill 837 was enacted, which included a number of technical
changes to the MMRSA, including renaming the act to the Medical Cannabis Regulation and Safety Act
(the MCRSA)

WHEREAS, on November 8, 2016, the voters of the State of California approved Proposition 64,
known as the Control, Regulate and Tax Adult Use of Marijuana Act (the AUMA), under which a variety
of non-medical marijuana businesses can operate subject to local ordinances and individuals may grow,
possess and use limited amounts non-medical marijuana; and

WHEREAS, on June 27, 2017 the Governor signed SB 94, a trailer bill to the AUMA, which repeals
the MCRSA, combines the States medical and non-medical marijuana regulations, uses the word
cannabis instead of marijuana, and renames the AUMA the Medicinal and Adult Use Cannabis
Regulations and Safety Act (the MAUCRSA.)

WHEREAS, the CUA, MMPA, MMRSA, MCRSA, AUMA, and MAUCRSA are collectively known
as the State Cannabis Laws; and

WHEREAS, the Citys Zoning Regulations, codified in Chapter 17.14.240 of the City of Carmel-
by-the-Sea Municipal Code, do not contain provisions to expressly regulate non-medical cannabis-related
activities, and the City wishes to retain local control of those cannabis-related regulations that the State
reserves to local agencies; and

WHEREAS, it is the purpose and intent of this Ordinance to regulate the manufacturing, testing,
and retail sale and dispensation of medical and non-medical cannabis in order to ensure the health,
safety, and welfare of the residents of the City of Carmel-by-the-Sea; and
 Attachment 1

WHEREAS, the regulations in this Ordinance are meant to ensure compliance with the State
Cannabis Laws and do not interfere with a patients ability to use medical cannabis as authorized by the
State Cannabis Laws or criminalize the possession or cultivation of cannabis for medical or non-medical
purposes as permitted by the State Cannabis Laws; and

WHEREAS, nothing in this Ordinance shall permit activities that are otherwise illegal under state
or local laws; and

WHEREAS, the Citys Zoning Ordinance is also its Local Coastal Program; and

WHEREAS, the City certifies that the amendments are intended to be carried out in a manner
fully in conformance with the Coastal Act; and

WHEREAS, this ordinance include the addition of title 17.53 and amendments to title 17.14 of the
Citys Zoning Ordinance/Local Coastal Implementation Plan and requires certification by the California
Coastal Commission; and

WHEREAS, the Planning Commission held a duly noticed public hearing on the Ordinance on
January 11, 2017; and

WHEREAS, the City Council of the City of Carmel-by-the-Sea held a duly noticed public hearing
and conducted a first reading of the Ordinance on October 3, 2017.

WHEREAS, this Urgency Ordinance is authorized by California Government Code Section 65858
in order to protect the character of the City; and

WHEREAS, the urgency ordinance can take effect immediately upon adoption with no second
reading or waiting period. Adoption of an urgency ordinance requires a four-fifths vote of the City Council
and expires 45 days after adoption.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES

ORDAIN AS FOLLOWS:

SECTION 1. Recitals. The City Council of the City of Carmel-by-the-Sea does hereby find that
the above referenced recitals are true and correct and material to the adoption of this Ordinance.

SECTION 2. Repealed. Section 17.14.240 (Medical Marijuana) is repealed from the Municipal
Code and replaced with the provisions of Section 3 of this Ordinance.

SECTION 3. Enacted. Title 17.53 (Cannabis) is hereby enacted as shown in Exhibit A attached
hereto and incorporated herein.

SECTION 4. CEQA Findings. The proposed Zoning Ordinance Amendment is not subject to the
California Environmental Quality Act (CEQA) pursuant to the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, sections: 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment); 15060(c)(3) (the activity is not a project as
defined in Section 15378); and 15061(b)(3), because 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. The
proposed ordinance maintains the status quo and prevents changes in the environment. Because there
 Attachment 1

is no possibility that this ordinance may have a significant adverse effect on the environment, the adoption
of this ordinance is exempt from CEQA.

SECTION 5. Severability. If any section, subsection, phrase, or clause of this ordinance is for
any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions
of this ordinance.

The City Council hereby declares that it would have passed this ordinance and each section, subsection,
phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or
clauses be declared unconstitutional.

SECTION 6. Effective Date. This ordinance shall take immediately and is valid for 45 days from
the date of adoption.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 27th
Day day of Novbember 2017, by the following roll call vote:

AYES:

NOES:

ABSENT:

APPROVED:

__________________________
STEVE DALLAS, Mayor

ATTEST:

________________________
ASHLEE WRIGHT, City Clerk
 Attachment 2
Exhibit A

17.14.240 Medical Marijuana.

A. Dispensaries Prohibited. No medical marijuana or cannabis dispensary or distribution facility as defined in CMC
17.68.040 or in Business and Professions Code Section 19300.5(n), as the same may be amended from time to time,
shall be permitted in any zone within the City of Carmel-by-the-Sea. For purposes of this section, dispensary shall
also include a cooperative or a mobile distribution facility.

B. Commercial Marijuana Activities Prohibited. Commercial marijuana or cannabis activities of all types, including
the cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transport, delivery,
dispensing, transfer, distribution, or sale of medical cannabis or medical cannabis products all as defined under
Business and Professions Code Section 19300.5, as the same may be amended from time to time, are expressly
prohibited in all zones and all specific plan areas in the City of Carmel-by-the-Sea. No person shall establish,
operate, conduct or allow a commercial cannabis activity anywhere within the City.

C. Deliveries of Medical Marijuana Prohibited. Commercial marijuana or cannabis activities of all types, including
the cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transport, delivery,
dispensing, transfer, distribution, or sale of medical cannabis or medical cannabis products all as defined under
Business and Professions Code Section 19300.5, as the same may be amended from time to time, are expressly
prohibited in all zones and all specific plan areas in the City of Carmel-by-the-Sea. No person shall establish,
operate, conduct or allow a commercial cannabis activity anywhere within the City.

D. Cultivation of Marijuana Prohibited. To the extent not already covered by subsection (B) of this section,
cultivation of marijuana or cannabis for commercial or noncommercial purposes, including cultivation by a qualified
patient or a primary caregiver, is expressly prohibited in all zones and all specific plan areas in the City of Carmel-
by-the-Sea. No person, including a qualified patient or primary caregiver, shall cultivate any amount of cannabis in
the City, even for medical purposes. Cultivation shall include planting, growing, harvesting, drying, curing, grading
or trimming of cannabis.

E. Intent. This chapter is meant to prohibit all medical marijuana or commercial cannabis activities, including but
not limited to those for which a State license is required. Accordingly, the City shall not issue any permit, license or
other entitlement for any activity for which a State license is required under the Medical Marijuana Regulation and
Safety Act.

F. Unlawful Uses. Uses that are unlawful under Federal or State law shall not be treated as permitted uses, and shall
not be determined to be similar to any uses permitted pursuant to this title. (Ord. 2016-03 3, 2016).
 Attachment 2

17.53 Cannabis.

17.53.010 Definitions.

A. Cannabis has the meaning set forth in Business and Professions Code section 26001(f) as of the effective
date of this Chapter and includes 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 the plant, its seeds, or resin.
Cannabis also means the separated resin, whether crude or purified, obtained from cannabis. Cannabis does
not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the
resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.
Cannabis does not mean industrial hemp as defined by Section 11018.5 of the Health and Safety Code.

B. Commercial Cannabis Activity has the meaning set forth in Business and Professions Code section
26001(k) as of the effective date of this Chapter and includes the cultivation, possession, manufacture, processing,
storing, laboratory testing, packaging, labeling, transporting, delivery, or sale of cannabis and cannabis products.

C. Cultivation has the meaning set forth in Business and Professions Code section 26001(l) as of the
effective date of this Chapter and includes any activity involving the planting, growing, harvesting, drying, curing,
grading, or trimming of marijuana.

D. "Medicinal Cannabis" or Medicinal Cannabis Product has the meaning set forth in Business and
Professions Code section 26001(ai) as of the effective date of this Chapter and includes Cannabis or Cannabis
Products intended to be sold for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at
Section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a
physicians recommendation.

E. Medicinal Cannabis Cooperatives, Collectives, Dispensaries, Operators, Establishments or Providers

means any facility or location where Medicinal Cannabis is made available to and/or distributed in exchange for
compensation by or to two or more of a primary caregiver, a qualified patient, or a person with an
identification card, as these terms are defined in California Health and Safety Code Sections 11362.5 and 11362.5
et seq. as of the effective date of this Chapter.

F. Primary caregiver shall have the meaning set forth in Health and Safety Code sections 11362.5(e) and
11362.7(d) as of the effective date of this Chapter.

G. Qualified patient shall have the meaning set forth in Health and Safety Code section 11362.7(f) as of the
effective date of this Chapter.

17.53.020 Purpose and intent.

The purpose and intent of this chapter is to prohibit any commercial cannabis activities, cooperatives, collectives,
dispensaries, operators, establishments and providers, and to regulate cannabis cultivation, as defined above, within
the City limits.

17.53.030 Prohibition on commercial cannabis activities and deliveries.

A. Commercial Cannabis Activities are prohibited in all areas of the City. No person or entity may establish
or engage in Commercial Cannabis Activities within city limits. A property owner may not allow its property to be
used by any person or entity for Commercial Cannabis Activities.
 Attachment 2

B. The delivery of Cannabis to any person within the city limits is prohibited, except for deliveries of medical
cannabis by a primary caregiver to one of the primary caregivers qualified patients as permitted by Business and
Professions Code section 26033 as of the effective date of this Chapter.

17.53.040 Prohibition on Medicinal Cannabis Cooperatives, Collectives, Dispensaries, Operators,

Establishments or Providers

A. Medicinal Cannabis Cooperatives, Collectives, Dispensaries, Operators, Establishments or Providers are

prohibited in all areas of the City. No person or entity may own, establish, open, operate, conduct, manage, or
establish Medicinal Cannabis Cooperatives, Collectives, Dispensaries, Operators, Establishments or Providers. A
property owner may not allow its property to be used by any person or entity for Medicinal Cannabis Cooperatives,
Collectives, Dispensaries, Operators, Establishments or Providers.

17.53.050 Residential Cannabis Cultivation

A. All cannabis cultivation within city limits is prohibited except that a person may cultivate no more than six
living cannabis plants inside a private residence, or inside an accessory structure to a private residence located upon
the grounds of that private residence. Such cultivation shall only occur in residences and accessory structures that
are fully enclosed and secured against unauthorized entry.

B. If a private residence is not occupied or inhabited by the owner of the private residence, then no persons living
in the residence may cultivate cannabis without written consent signed by the owner expressly allowing cannabis
cultivation to occur at the private residence.

C. Persons cultivating cannabis in a residence shall comply with all applicable Building Code requirements set
forth in the Carmel-by-the-Sea Municipal Code.

D. There shall be no use of gas products (CO2, butane, propane, natural gas, etc.) on the property for purposes of
cannabis cultivation.

E. All private cultivation under this section shall comply with Health and Safety Code section 11362.2 as of the
effective date of this Chapter.

17.53.060 Smoking of Cannabis.

Smoking and vaporizing of Cannabis and Cannabis Products is prohibited in all public places and any place that is
open to the public.

17.53.070 Public Nuisance. Any use or condition caused, or permitted to exist, in violation of any
provision of this section is a public nuisance and may be summarily abated by the City pursuant to Code of Civil
Procedure Section 731 or by any other remedy available to the City.

17.53.080 ViolationSeparate offense.

Any person who violates any provision of this chapter is guilty of a separate offense for each and every day during
any portion of which any such person commits, continues, permits, or causes a violation thereof, and may be
penalized accordingly.

17.53.090 Civil injunction.

Any violation of this chapter is declared to be a public nuisance per se and contrary to the public interest and will at
the discretion of the City, be subject to a cause of action for injunctive relief.
 Attachment 3

California Government Code Sections 65858 and 65090

65858. (a) Without following the procedures otherwise required

prior to the adoption of a zoning ordinance, the legislative body of
a county, city, including a charter city, or city and county, to
protect the public safety, health, and welfare, may adopt as an
urgency measure an interim ordinance prohibiting any uses that may be
in conflict with a contemplated general plan, specific plan, or
zoning proposal that the legislative body, planning commission or the
planning department is considering or studying or intends to study
within a reasonable time. That urgency measure shall require a
four-fifths vote of the legislative body for adoption. The interim
ordinance shall be of no further force and effect 45 days from its
date of adoption. After notice pursuant to Section 65090 and public
hearing, the legislative body may extend the interim ordinance for 10
months and 15 days and subsequently extend the interim ordinance for
one year. Any extension shall also require a four-fifths vote for
adoption. Not more than two extensions may be adopted.

65090. (a) When a provision of this title requires notice of a

public hearing to be given pursuant to this section, notice shall be
published pursuant to Section 6061 in at least one newspaper of
general circulation within the jurisdiction of the local agency which
is conducting the proceeding at least 10 days prior to the hearing,
or if there is no such newspaper of general circulation, the notice
shall be posted at least 10 days prior to the hearing in at least
three public places within the jurisdiction of the local agency.
(b) The notice shall include the information specified in Section
65094.
(c) In addition to the notice required by this section, a local
agency may give notice of the hearing in any other manner it deems
necessary or desirable.
(d) Whenever a local agency considers the adoption or amendment of
policies or ordinances affecting drive-through facilities, the local
agency shall incorporate, where necessary, notice procedures to the
blind, aged, and disabled communities in order to facilitate their
participation. The Legislature finds that access restrictions to
commercial establishments affecting the blind, aged, or disabled is a
critical statewide problem; therefore, this subdivision shall be
applicable to charter cities.