Chapter 9.40
CULTIVATION AND POSSESSION OF MEDICAL MARIJUANA
Sections:
9.40.040 Cultivation of medical marijuana.
9.40.050 Cultivation restrictions.
9.40.060 Primary caregiver restrictions.
9.40.070 Possession restrictions.
9.40.110 Administrative remedies.
9.40.010 Findings.
The city council adopts this chapter based upon the following findings:
A. The voters of the State of California approved Proposition 215 (codified as California Health and Safety Code Section 11362.5 et seq. and entitled “The Compassionate Use Act of 1996”).
B. The intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to be able to obtain and use it without fear of criminal prosecution under limited, specified circumstances.
C. In 2004, the state enacted SB 420 (codified as California Health and Safety Code Section 11362.7 et seq. and titled the “Medical Marijuana Program Act”) to clarify the scope of the Compassionate Use Act of 1996 and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420.
D. The City of Escalon police department, city residents and other public entities have reported adverse impacts from medical marijuana cultivation, including increased risk of burglary and other property crimes, acts of violence in connection with the commission of such crimes or the occupants’ attempts to prevent such crimes, as well as disagreeable odors and unsanitary conditions. The creation of persistent strong odors as marijuana plants mature and flower is offensive to many people and creates an attractive nuisance, alerting persons to the location of valuable marijuana plants and creating an increased risk of crime. The indoor cultivation of substantial amounts of marijuana frequently requires excessive use of electricity, which creates an unreasonable risk of fire from the electrical grow lighting systems used for indoor cultivation. Children are particularly vulnerable to the effects of marijuana use. The presence of marijuana plants has proven to be an attractive nuisance for children, creating an unreasonable hazard in areas frequented by children including schools, parks, and other similar locations.
E. The City of Escalon has a compelling interest in protecting the health, safety, and welfare of its residents and businesses, and in preserving the peace and quiet of the neighborhoods in which medical marijuana grows. In order to protect the public health, safety and welfare, it is the desire of the city council to modify the Escalon Municipal Code consistent with SB 420, regarding the amount of medical marijuana that may be cultivated and possessed, the size of the area used for cultivation, the design and security of structures used for cultivation, and the locations and manner in which medical marijuana may be cultivated.
F. The limited right of qualified patients and their primary caregivers under state law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this chapter, the city will achieve a significant reduction of the aforementioned harms caused or threatened by the unregulated cultivation of marijuana in the city.
G. Nothing in this chapter shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 800 et seq., or to otherwise permit any activity that is prohibited under that Act or any other local, state or federal law, statute, rule or regulation.
H. Nothing in this chapter shall be constructed to (1) allow persons to engage in conduct that endangers others or causes a public nuisance, (2) allow the use of marijuana for nonmedical purposes, or (3) allow any activity relating to the cultivation, distribution or consumption of marijuana that is illegal under state or federal law.
I. Pursuant to California Health and Safety Code Section 11362.71 et seq., the State Department of Health is responsible for establishing and maintaining a voluntary identification card program.
J. California Health and Safety Code Section 11362.71(b) requires every county health department, or its designee, to implement a procedure to accept and process applications from those seeking to join the identification program in the matter set forth in Section 11362.71 et seq.
K. This chapter is hereby found to be categorically exempt from environmental review pursuant to CEQA Guidelines Section 15061(b)(3). (Ord. 545 § 3 (Exh. A), 2015)
9.40.020 Purpose and intent.
A. It is the purpose and intent of this chapter to require that medical marijuana be cultivated only in appropriately secured, enclosed, and ventilated structures so as not to be visible to the general public, to provide for the health, safety and welfare of the public, to prevent odor created by marijuana plants from impacting adjacent properties, and to ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets. It is also the purpose and intent of this chapter to require that collective cultivation of marijuana be conducted in nonresidential districts to provide for the health, safety and welfare of the public. Nothing in this chapter is intended to impair any viable legal defense available to a person using or in possession of medical marijuana pursuant to the Compassionate Use Act (Health and Safety Code Section 11362.5) or the Medical Marijuana Program Act (Health and Safety Code Section 11362.7 et seq.). Nothing in this chapter is intended to authorize the cultivation, possession, or use of marijuana for nonmedical purposes in violation of state or federal law.
B. It is the purpose and intent of this chapter to establish a reasonable regulation of medical marijuana cultivation by limiting cultivation and possession of medical marijuana to those limits established by California Health and Safety Code Section 11362.77.
C. This chapter, in compliance with California Health and Safety Code Section 11362, does not interfere with a patient’s right to medical marijuana, nor does it criminalize the possession or cultivation of medical marijuana by specifically defined classifications of persons, pursuant to state law. (Ord. 545 § 3 (Exh. A), 2015)
9.40.030 Definitions.
A. Whenever the word “city” is used in this chapter, it shall mean the City of Escalon.
B. Whenever the words “qualified patient” are used in this chapter, they shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it now reads or as amended.
C. Whenever the words “person with an identification card” are used in this chapter, they shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it now reads or as amended.
D. Whenever the words “attending physician” are used in this chapter, they shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it now reads or as amended.
E. Whenever the words “primary caregiver” are used in this chapter, they shall have the same definition as set forth in California Health and Safety Code Section 11362.7, as it now reads or as amended.
F. Whenever the words “medical marijuana” are used in this chapter, they shall mean marijuana used for medical purposes in accordance with Health and Safety Code Section 11362.7 et seq., as it now reads or as amended.
G. Whenever the word “marijuana” is used in this chapter, it shall have the same definition as set forth in California Health and Safety Code Section 11018, as it now reads or as amended.
H. Whenever the word “cultivation” is used in this chapter, it shall mean the planting, growing, harvesting, drying, processing, or storage of one or more marijuana plants or any part thereof in any location including from within a fully enclosed and secure building.
I. Whenever the words “mature marijuana plants” are used in this chapter, they shall mean a marijuana plant which has flowers or buds that are readily observable by an unaided visual examination.
J. Whenever the words “immature marijuana plants” are used in this chapter, they shall mean a marijuana plant with no observable flower buds.
K. Whenever the word “premises” is used in this chapter, it shall mean a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single “premises” for purposes of this chapter.
L. Whenever the words “medical marijuana collective” or “collective” are used in this chapter, they shall mean a location where marijuana is cultivated collectively by more than one qualified patient, person with identification card or primary caregiver. A “medical marijuana collective” shall not include the following uses, as long as the location of such uses are otherwise regulated by code or applicable law: (1) a clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code; (2) a health care facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code; (3) a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code; (4) a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code; and (5) a residential hospice or home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, California Health and Safety Code Section 11362.7 et seq.
M. “Detached, fully enclosed and secure structure” means a building completely and entirely detached from a residence that complies with the Escalon Building Code and the Escalon Municipal Code and has complete roof enclosure supported by connecting walls extending from the ground to the roof, a foundation, slab or equivalent base to which the floor is secured by bolts or similar attachments, is secure against unauthorized entry, and is accessible only through one or more lockable doors. Walls and roofs must be constructed of solid materials that cannot be easily broken through, such as two-inch by four-inch or thicker studs overlaid with three-eighths-inch or thicker plywood or the equivalent. Exterior walls must be constructed with non-transparent material. Plastic sheeting, regardless of gauge, thin corrugated fiberglass sheeting, or similar products do not satisfy this requirement. (Ord. 545 § 3 (Exh. A), 2015)
9.40.040 Cultivation of medical marijuana.
The following regulations shall apply to the cultivation of medical marijuana within the city:
A. No person other than a qualified patient or primary caregiver may engage in cultivation of medical marijuana. It is hereby declared to be unlawful and a public nuisance for any person or persons owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the city to cultivate medical marijuana except as provided in this chapter.
B. Residency Requirement. Either a qualified patient or a primary caregiver shall reside full-time on the premises where the marijuana cultivation occurs.
C. Outdoor Cultivation. It is unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the city to cause or allow such parcel or premises to be used for the outdoor cultivation of marijuana plants.
D. Residential Structure Cultivation. It is unlawful and a public nuisance for any person to cultivate medical marijuana inside any residential structure or building without a valid medical marijuana identification card issued by the State of California and a current valid medical recommendation for such use.
E. Cultivation in Nonresidential Zones. Cultivation of medical marijuana is prohibited in all commercial, office, business park, mixed use, industrial, public-semipublic, and resource conservation zoning districts.
F. Proximity to Schools, Child Care Center, and Parks. It is unlawful and a public nuisance to cultivate medical marijuana on any parcel or premises within 300 feet of any school, child care center, public park or playground, or in other areas where large numbers of minors regularly travel or congregate. The 300 feet shall be measured from the closest property line of the school, child care center, or park to the closest property line of the cultivation parcel.
G. Cultivation Area. It is hereby declared to be unlawful and a public nuisance for any person or persons owning, leasing, occupying, or having charge or possession of any legal parcel or premises within any zoning district in the city to cultivate medical marijuana within a detached structure greater than 120 square feet in size.
H. Indoor Cultivation in Residential Zones. The indoor cultivation of medical marijuana in a residential zone shall only be conducted within a detached, fully enclosed and secure structure no greater than 120 square feet in size or within a residential structure conforming to the following minimum standards:
1. Any detached structure, regardless of square footage, constructed, altered or used for the cultivation of medical marijuana must have a corresponding valid building permit duly issued by the building official.
2. Indoor grow lights shall not exceed 1,200 watts and shall comply with the California Building, Electrical and Fire Codes as adopted by the city and the Escalon fire district. Gas products (including, without limitation, CO2, butane, propane, and natural gas) or generators shall not be used within any residential structure or detached structure used for the cultivation of medical marijuana.
3. Any detached, fully enclosed and secure structure or residential structure used for the cultivation of medical marijuana must have a ventilation and filtration system installed that shall prevent marijuana plant odors from exiting the interior of the structure and that shall comply with California Building Code Section 402.3, Mechanical Ventilation. The ventilation and filtration system must be approved by the building official and installed prior to commencing cultivation within the detached, fully enclosed and secure structure or residential structure.
4. A detached, fully enclosed and secure structure used for the cultivation of medical marijuana shall be located in the rear yard area of a legal parcel or premises, maintain a minimum 10-foot setback from any property line, and the area surrounding the structure must be enclosed by a solid fence at least six feet in height.
5. Adequate mechanical or electronic security systems approved by the building official and chief of police must be installed in and around the detached structure or the residential structure prior to the commencement of cultivation.
6. Any medical marijuana cultivation occurring within a residence or detached, fully enclosed and secure structure shall be limited to an area no larger than 50 square feet, regardless of how many qualified patients or primary caregivers are residing at the premises.
7. Cultivation of medical marijuana shall not take place in the kitchen or bathrooms of any building. The area used for cultivation of medical marijuana shall not reduce the required parking spaces for any such structure.
8. The cultivated medical marijuana may only be used by the qualified patient and not distributed, sold, given, furnished or transferred in any way to any other person or organization. Medical marijuana cultivation for sale or for an exchange of anything of value is prohibited.
9. Medical marijuana cultivation may not occur in both a detached, fully enclosed and secure structure and inside a residence on the same parcel.
10. Medical marijuana cultivation areas, whether in a detached, fully enclosed and secure structure or inside a residence, shall not be accessible to any persons under 18 years of age. (Ord. 545 § 3 (Exh. A), 2015)
9.40.050 Cultivation restrictions.
A. Only Qualified Patients. Persons with a valid medical marijuana identification card issued by the State of California and primary caregivers may cultivate medical marijuana.
B. Maximum of 24 Plants Except Where Collective Cultivation Is Allowed. The individual, collective, or cooperative cultivation of more than 24 medical marijuana plants, whether mature or immature, shall occur only in zones where cooperative cultivation is permitted.
C. Patient Cultivation. For qualified patients and persons with an identification card, the following shall apply: each qualified patient and person with an identification card may cultivate in any zone six mature or 12 immature marijuana plants, or as otherwise recommended by a doctor in accordance with California Health and Safety Code Section 11362.77, subject to the limits specified in this section.
D. Primary Caregiver Cultivation. For primary caregivers, the following shall apply: each primary caregiver may cultivate in any zone six mature or 12 immature marijuana plants, or as otherwise recommended by a doctor, for each qualified patient in accordance with California Health and Safety Code Section 11362.77, subject to the limits specified in this section.
E. Maximum of 99 Plants. The individual, collective, or cooperative cultivation of more than 99 marijuana plants, whether mature or immature, is a prohibited use in all zones of the city.
F. Collective or Cooperative Cultivation. For the collective or cooperative cultivation, such cultivation shall be prohibited within any residential districts as defined by Chapter 17.16 EMC or within 1,000 feet of such districts. Collective or cooperative cultivation shall also be subject to the following additional requirements:
1. Record Requirements. The owner or lessee of the property upon which the cooperative or collective growing occurs shall provide the following information to the Escalon police department in a form and manner approved by the police department: (a) full name, address, and telephone number(s) of the owner or lessee, including all alias names used in the previous 10 years; the address where correspondence is to be mailed; (b) a list of all qualified patients, persons with identification cards, and primary caregivers participating in the cultivation; (c) a copy of all participant physician recommendation, identification cards, and primary caregiver evidence; (d) a sketch or diagram showing the property with the location of the cultivation and all buildings on the property, including a statement showing the total area occupied by the cultivation and the distance from the property lines; (e) a statement setting forth the number of plants to be cultivated and demonstrating that the cultivation does not exceed the maximums set forth under state law or this chapter, namely patient maximums and the cap of 99 plants; (f) a statement identifying all persons who will be tending to the cultivation and describing the cultivation process; (g) such other information as the police department determines is necessary to ensure compliance with state law and this chapter. This information shall be provided prior to the commencement of the collective or cooperative cultivation, except that for existing collective or cooperative cultivation operations, the information shall be provided within 10 days of the effective date of the ordinance codified in this chapter. The information provided shall be updated upon any change within 10 days. The police department shall keep patient information confidential to the extent required by law.
2. No Cultivation in Conjunction with a Business – No Sales of Goods or Services. The cultivation shall not occur in conjunction with any business. No products or services shall be sold from the property where the cultivation occurs.
3. Required Participation in the Cultivation – No Employees. All persons who associate together for the collective or cooperative cultivation must participate in the cultivation and the cultivation must occur solely among members of the association. No employees, independent contractors, or other persons, including volunteers, may be hired or utilized for the cultivation.
4. No On-Site Consumption. No on-site consumption of medical marijuana shall occur except by qualified patients or persons with identification cards who live on the property as their principal place of residence.
5. Inspections. The collective cultivation operation shall be open for inspection by any law enforcement officer or city code enforcement officer between the hours of 8:00 a.m. and 9:00 p.m. seven days a week, or at any time upon responding to a call for service related to the property where the cultivation is occurring.
6. Violations. In addition to the remedies provided in this chapter, if the collective or cooperative cultivation occurs in violation of this chapter or any other local or state law or regulation, the owner or lessee shall be prohibited from further collective or cooperative cultivation at any location within the city for a period of one year after notice by the city of the violation. Subsequent violations shall result in a three-year prohibition. (Ord. 545 § 3 (Exh. A), 2015)
9.40.060 Primary caregiver restrictions.
A. As it is reasonable that primary caregivers other than those listed in California Health and Safety Code Section 11362.7(d)(1) are unable to consistently assume responsibility for the housing, health or safety of an unlimited number of persons, the number of qualified patients or persons with identification cards to primary caregiver is limited to no more than 10 qualified patients or persons with an identification card.
B. The primary caregiver must keep a list of his or her assigned qualified patients or persons with an identification card; such a list must minimally contain those persons’ contact information, such that it may be immediately provided to the chief of police upon request, for the purposes of determining the proper legal amounts of cultivated and/or dried marijuana that may be possessed at the collective. (Ord. 545 § 3 (Exh. A), 2015)
9.40.070 Possession restrictions.
A. Qualified Patients or Person with Identification Card. A qualified patient or person with identification card may possess no more than eight ounces of dried marijuana. If a qualified patient or person with identification card has a doctor’s recommendation that this quantity does not meet the qualified patient’s or person with identification card’s medical needs, the qualified patient or person with identification card may possess an amount of marijuana consistent with the patient’s needs.
B. Primary Caregiver. A primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. If a qualified patient has a doctor’s recommendation that this quantity does not meet his or her qualified patient’s medical needs, the primary caregiver may possess an amount of marijuana consistent with his or her patient’s needs.
C. Medical Marijuana Collective. Medical marijuana collectives may possess no more than eight ounces of dried marijuana per qualified patient, person with identification card, or primary caregiver that is a member of the collective. If a qualified patient, person with identification card, or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’s medical needs, the medical marijuana collective may possess an amount of marijuana consistent with the patient’s needs.
D. Only the dried mature processed flowers of female cannabis plants or the plant conversion shall be considered when determining allowable quantities of marijuana under this section. (Ord. 545 § 3 (Exh. A), 2015)
9.40.080 Enforcement.
A. Any use or condition caused, or permitted to exist, in violation of any of the provisions of this chapter shall be, and hereby is, declared a public nuisance and may be summarily abated by the city pursuant to Section 731 of the California Code of Civil Procedure. The property owner or lessee shall be liable for all costs associated with abatement, including administrative, labor, material and other costs.
B. Right of Entry. Persons designated as code enforcement officers and City of Escalon police officers are authorized to enter upon and inspect private properties to ensure compliance with the provisions of this code. Reasonable advance notice of any such entry and inspection shall be provided. (Ord. 545 § 3 (Exh. A), 2015)
9.40.090 Criminal penalties.
Any person who violates, causes or permits another person to violate any provision of this chapter commits a misdemeanor, and upon conviction thereof shall be punished as provided in Chapter 1.08 EMC. (Ord. 545 § 3 (Exh. A), 2015)
9.40.100 Civil injunction.
The violation of any provision of this chapter shall be, and hereby is, declared to be contrary to the public interest and shall, at the discretion of city, create a cause of action for injunctive relief. (Ord. 545 § 3 (Exh. A), 2015)
9.40.110 Administrative remedies.
In addition to the civil remedies and criminal penalties set forth above, any person that violates the provisions of this chapter may be subject to administrative remedies as set forth by city ordinance. (Ord. 545 § 3 (Exh. A), 2015)
9.40.120 Judicial review.
Judicial review of a decision made under this chapter may be had by filing a petition for a writ of mandate with the San Joaquin County superior court in accordance with the provisions of the California Code of Civil Procedure Section 1094.5. Any such petition shall be filed within 90 days after the day the decision becomes final as provided in California Code of Civil Procedure Section 1994.6, which shall be applicable for such actions. (Ord. 545 § 3 (Exh. A), 2015)