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HomeMy WebLinkAbout04 PC REPORT CA 2017-001 MARIJUANA ACT AGENDA REPORT ITEM #4 MEETING DATE: FEBRUARY 28, 2017 TO: PLANNING COMMISSION FROM: COMMUNITY DEVELOPMENT DEPARTMENT CITY ATTORNEY SUBJECT: CODE AMENDMENT 2017-001, AMENDMENTS TO TUSTIN CITY CODE REQUIRED BY PASSAGE OF PROPOSITION 64 SUMMARY: Code Amendment (CA) 2017-001 would amend the Tustin City Code (TCC) as required by the passage of Proposition 64, the Adult Use of Marijuana Act (the "Act"). CA 2017- 001 would amend the TCC so that it does not prohibit activity and/or uses that are expressly permitted pursuant to the Act. CA 2017-001 would expressly prohibit marijuana dispensaries in all zoning districts. RECOMMENDATION: That the Planning Commission adopt Resolution 4335, recommending that the Tustin City Council adopt Ordinance No. 1478, amending TCC Sections 3141, 3152, 9270c and 9297 relating to the regulation of marijuana activity in the City. APPROVAL AUTHORITY: TCC Section 9295f authorizes the Planning Commission to make a recommendation to the City Council on Proposed Zoning Code Amendments. Proposed Ordinance No. 1478 also contains proposed amendments to TCC Sections 3141 and 3152. The Planning Commission is not being asked to make any recommendations with respect to the proposed amendments to these sections. BACKGROUND AND DISCUSSION: Proposed Code Amendment Proposed CA 2017-001 would add clarification to the TCC to confirm that the City's general prohibition on marijuana activity includes a prohibition on such activity whether it is conducted for medical or recreational purposes, and will also ensure that the TCC is not inconsistent with changes to state law made effective by approval of Proposition 64 — the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use of Marijuana Act") — by California voters on November 8, 2016. Planning Commission Report Code Amendment 2017-001 February 28, 2017 Page 2 Legislative Background In 1996, the voters of the State of California approved Proposition 215, entitled "The Compassionate Use Act of 1996" ("CUA") to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420, entitled the Medical Marijuana Program Act ("MMPA") which permits qualified patients and their primary care givers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUA nor the MMPA require or impose an affirmative duty on local government agencies to allow, authorize, or sanction the establishment of facilities that cultivate, possess, or distribute medical marijuana within their jurisdictions. 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. In February of 2006, the City Council adopted Interim Urgency Ordinance No. 1309, which prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days. The Ordinance was extended in March of 2006, and was later superseded by the adoption of Ordinance No. 1322 on December 4, 2006. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal uses, including medical marijuana dispensaries, in order to promote the health, safety, morals and general welfare of the residents and businesses of the City. On October 9, 2015, the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which was comprised of the State Legislative Bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, were signed into law. The MMRSA became effective on January 1, 2016 and contained provisions governing the cultivation, processing, transportation, testing, and distribution of medical marijuana to qualified patients. The MMRSA also confirmed the right of local government entities to enact ordinances regulating or prohibiting marijuana cultivation, processing, delivery and distribution, but required that any local government agency that wished to prohibit marijuana delivery into, or cultivation of marijuana within its jurisdiction, to do so expressly by ordinance. On January 19, 2016, the City Council adopted Ordinance No. 1466. The purpose of Ordinance No. 1466 was to expressly prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts within the City. On November 8, 2016, California voters approved the Act. The Act creates a regulatory scheme that calls for licensing, taxing, oversight, and enforcement of recreational marijuana businesses within the State of California. Like the MMRSA before it, the Act expressly states that local government entities have the right to adopt and enforce Planning Commission Report Code Amendment 2017-001 February 28, 2017 Page 3 ordinances regulating or completely prohibiting marijuana businesses within their jurisdictions with limited exceptions explained herein. In addition to creating a regulatory framework for marijuana businesses, the Act legalized certain activities by adults who have reached the age of 21 pertaining to the use, possession, processing, transportation, purchasing, cultivation, and harvesting of marijuana for recreational purposes. Some of the specific activities that were legalized by the Act include: 1. Possessing, processing, transporting, purchasing, obtaining, or giving away, to adults aged 21 or older without compensation whatsoever, recreational marijuana in certain specified amounts (Health & Safety Code §§ 11362.1(a)(1) and (a)(2)); i 2. Possessing, planting, cultivating, harvesting, drying, or processing not more than six (6) living marijuana plants and possessing the marijuana produced by those plants, provided that such activity is conducted within a person's private residence (i.e. house, apartment unit, mobile home or other similar dwelling), or upon the grounds of that private residence (e.g. in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place (Health & Safety Code §§ 11362.1(a)(3) and 11362.2(a)(2), (a)(3), and (b)(5)); and 3. Smoking or ingesting of marijuana and marijuana products (Health & Safety Code § 11362.1(a)(4)). While local government entities may continue to regulate and even prohibit marijuana businesses licensed under the Act, which specified that local government entities cannot prohibit the foregoing activities, except that local government entities can prohibit the processing, planting, cultivation, harvesting, drying of marijuana outdoors upon the grounds of a private residence. ANALYSIS: The TCC has never permitted the use of any property within the City's borders for purposes of any form of marijuana activity, regardless of whether that use was tied to medicinal or recreational marijuana. Currently, the TCC contains prohibitions on use of property within the City for any type of marijuana business or activity, in both its Business Regulations and Land Use provisions. Specifically, TCC Section 9270c states . in relevant part, "Medical marijuana dispensaries are expressly prohibited in all zoning districts." The TCC goes on to broadly define a "Medical marijuana dispensary' at Section 9297 as: Planning Commission Report Code Amendment 2017-001 February 28, 2017 Page 4 "any person association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes, distributes, makes available, or otherwise facilitates the distribution of marijuana (in any form or incorporated into any product) to any person, including but not limited to, a qualified patients a person with an identification card, or a primary care giver as those terms are defined in California Health and Safety Code sections 11362.5 and 11362.7 et. seq., as may be amended from time to time:" Given the existing broad definition of "medical marijuana dispensary" within the TCC, coupled with its comprehensive ban of all activity that fits within that definition, the TCC currently prohibits activities which the state has made legal, and which state law has identified as activities that cannot be completely prohibited by local government agencies. The purpose of Proposed CA 2017-001 is to remove language within the TCC that is in conflict with state law, while at the same time maintaining as much of the City's existing provisions related to marijuana activities as possible. Proposed CA 2017-001 does this by replacing the existing definition of "Medical marijuana dispensary" with a new definition for "Marijuana dispensary', which carves out exceptions for those activities which the state has expressly indicated cannot be prohibited. In addition, the proposed amendment clarifies that the City's prohibition on marijuana activity includes prohibition of medical and recreational marijuana activity. Alternatives Should the Planning Commission wish to explore alternatives to the City's continued prohibition of marijuana activities, it is nonetheless recommended that the Planning Commission take action on the proposed ordinance at this time due to the fact that provisions of the TCC, as they currently exist, are in conflict with state law. Alternatives to a complete prohibition on marijuana activity within the City can be discussed in the future. Proposed CA 2017-001 would merely allow the City to remove provisions of its Code that conflict with recently passed state law, and to maintain the status quo in relation to the City's existing marijuana provisions. Proposed CA 2017-001 does not limit the City's ability to adopt more or less stringent regulations pertaining to marijuana activity in the future should it choose to do so. ENVIRONMENTAL ANALYSIS: Proposed CA 2017-001 (Ordinance No. 1478) is not subject to the California Environmental Quality Act ("CEQA") pursuant to 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) and 15060(c)(3) (the activity is Planning Commission Report Code Amendment 2017-001 February 28, 2017 Page 5 not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. Jaso M. McEwen Elizabeth A. Binsack Deputy City Attorney Community Development Director Attachments: A. Planning Commission Resolution No, 4335 B. Draft Ordinance No. 1478 RESOLUTION NO. 4335 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL ADOPT ORDINANCE NO. 1478, AMENDING TUSTIN CITY CODE SECTIONS 3141, 3152, 9270 AND 9297 TO UPDATE THE CITY'S BUSINESS AND LAND USE REGULATIONS PERTAINING TO MARIJUANA ACTIVITY. The Planning Commission hereby does resolve as follows: I, The Planning Commission finds and determines as follows: A. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act ("CUA"), codified in Health and Safety Code Section 11362.5 et seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under state law for the cultivation, distribution, possession, and use of marijuana under specified circumstances. B. That in 2003, the California Legislature enacted Senate Bili (SB) 420, known as the Medical Marijuana Program Act ("MMPA"), codified in Health and Safety Code Section 11362.7 et seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. C. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin ("City') and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten (10) months and fifteen (15) days. D. That on December 4, 2006, the City Council adopted Ordinance No. 1322. The purpose. and intent of Ordinance No. 1322 was to prohibit all illegal uses, including medical marijuana dispensaries, to promote the health, i I Resolution No. 4335 Page 2 safety, morals and general welfare of the residents and businesses within the City. E. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 2013 WL 1859214 (Cal.), affirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance declaring medical marijuana dispensaries a prohibited use of land. F. That on October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which is comprised of the State legislative bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, into law. G. That the MMRSA, effective as of January 1, 2016, contains provisions that govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to qualified patients. The MMRSA also contains new statutory provisions that: 1. Expressly provide that the MMRSA 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)); 2. Expressly provide that the MMRSA 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 3. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code Section 19300,5(m) of the MMRSA, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Business & Professions Code § 19340(a)), H. That on January 19, 2016, the City Council adopted Ordinance No. 1466. The purpose of Ordinance 1466 was to prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts within the City. I. That on November 8, 2016, California voters approved Proposition 64 — the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use of Marijuana Act") legalizing certain activities by adults aged 21 or older pertaining to recreational marijuana including: i i Resolution No. 4335 Page 3 1. Possessing, processing, transporting, purchasing, obtaining, or giving away, to adults aged 21 or older without compensation whatsoever, of recreational marijuana in certain specified amounts (Health & Safety Code §§ 11362.1(a)(1) and (a)(2)); 2. Possessing, planting, cultivating, harvesting, drying, or processing of not more than six (6) living marijuana plants and possessing the marijuana produced by, those plants, provided that such activity is conducted within a person's private residence (i.e. house, apartment unit, mobile home or other similar dwelling), or upon the grounds of that private residence (e.g, in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place (Health & Safety Code §§ 11362.1(a)(3) and 11362.2(a)(2), (a)(3), and (b)(5)); and, 3. Smoking or ingesting of marijuana and marijuana products (Health & Safety Code § 11362.1(a)(4)). J. That, pursuant to the Adult Use of Marijuana Act, local entities may not completely prohibit any of the foregoing activities, except that local entities may prohibit possessing, planting, cultivating, harvesting, drying, and processing of marijuana outdoors upon the grounds of a private residence ((Health & Safety Code § 11362.2(b)(3)). K. That pursuant to the provisions of the Tustin City Code ("TCC"), planting, cultivating, processing, harvesting, or drying of marijuana (whether medical or recreational) are not listed as a "permitted use" in any zoning district in the City; and that such uses and activities are expressly prohibited in all zoning districts within the City. L. That Code Amendment (CA) 2017-001 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof. Further, CA 2017-001 is necessary in order to ensure that the TCC is not inconsistent with state law. Specifically, this Ordinance is necessary in order to amend the TCC so that it does not prohibit activity and/or uses that are expressly permitted pursuant to the Adult Use of Marijuana Act. M. That CA 2017-001 is not subject to the California Environmental Quality Act (CEQA) pursuant to 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) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. Resolution No, 4335 Page 4 N. That on February 28, 2017, a public hearing was duly noticed, called, and held on Code Amendment 2017-001 by the Planning Commission, Il. The Planning Commission hereby recommends that the City Council adopt Ordinance No. 1478, amending TCC Sections 3141, 3152, 9270 and 9297 to update the City's business and land use regulations pertaining . to marijuana activity, which is attached hereto. PASSED AND ADOPTED, at a regular meeting of the Planning Commission of the City of Tustin on this 28th day of February, 2017. AUSTIN LUMBARD Chairperson ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF TUSTIN } I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 4335 was passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 28th day of February, 2017 PLANNING COMMISSIONER AYES: PLANNING COMMISSIONER NOES: PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: ELIZABETH A. BINSACK Planning Commission Secretary i DRAFT ORDINANCE NO, 1478 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING TUSTIN CITY CODE SECTIONS 3141, 3152, 9270 AND 9297 TO UPDATE THE CITY'S BUSINESS AND LAND USE REGULATIONS PERTAINING TO MARIJUANA ACTIVITY. The City Council of the City of Tustin does hereby ordain as follows: Section 1, The City Council finds and determines as follows: A. That in 1996, California voters approved Proposition 215, entitled The Compassionate Use Act ("CUA"), codified in Health and Safety Code Section 11362.5 of seq. The CUA, which was intended to enable seriously ill persons to obtain and use marijuana for medical purposes, exempted qualified patients and their primary caregivers from criminal prosecution under state law for the cultivation, distribution, possession, and use of marijuana under specified circumstances. B. That in 2003, the California Legislature enacted Senate Bill (SB) 420, known as the Medical Marijuana Program Act ("MMPA"), codified in Health and Safety Code Section 11362.7 of seq. The MMPA clarified the scope and application of the CUA, better defined the regulatory framework for the cultivation, distribution, possession and use of medical marijuana, and recognized the right of cities to regulate the operation, location, and establishment of medical marijuana dispensaries. C. That on February 6, 2006, the City Council adopted Ordinance No. 1309, an interim urgency ordinance, and found that medical marijuana dispensaries are not permitted uses in any zoning district in the City of Tustin ("City") and expressly prohibited the establishment of any medical marijuana dispensary in the City for forty-five (45) days pending the commencement of appropriate studies and consideration of alternative land use approaches for addressing the health, safety, and welfare issues associated with the regulation of medical marijuana dispensaries in the City. On March 20, 2006, the City Council adopted Ordinance No. 1310, extending Ordinance No. 1309 for an additional ten (10) months and fifteen (15) days. D. That on December 4, 2006, the City Council adopted Ordinance No. 1322. The purpose and intent of Ordinance No. 1322 was to prohibit all illegal uses, including medical marijuana dispensaries, to promote the health, safety, morals and general welfare of the residents and businesses within the City. i Ordinance 1478 j Page 2 E. That on May 6, 2013, the California Supreme Court in the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., 2013 WL 1859214 (Cal.), affirmed the right of municipalities to ban medical marijuana dispensaries, holding that neither the CUA nor the MMPA preempted a zoning ordinance declaring medical marijuana dispensaries a prohibited use of land. F. That on October 9, 2015, Governor Brown signed the "Medical Marijuana Regulation and Safety Act" ("MMRSA"), which is comprised of the State legislative bills known as Assembly Bill (AB) 243, AB 266, and Senate Bill (SB) 643, into law. f I I G. That the MMRSA, effective as of January 1, 2016, contains provisions that ' govern the cultivating, processing, transporting, testing, and distributing of medical cannabis to qualified patients. The MMRSA also contains new statutory provisions that: 1. Expressly provide that the MMRSA 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)); 2. Expressly provide that the MMRSA 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 3. Require a local government that wishes to prevent marijuana delivery activity, as defined in Business & Professions Code section 19300.5(m) of the MMRSA, from operating within the local government's boundaries to enact an ordinance affirmatively banning such delivery activity (Business & Professions Code § 19340(a)). H. That on January 19, 2016, the City Council adopted Ordinance No. 1466, The purpose of Ordinance 1466 was to prohibit marijuana cultivation, processing, delivery, and distribution in all zoning districts within the City. a I. That on November 8, 2016, California voters approved Proposition 64 — the Control, Regulate, and Tax Adult Use of Marijuana Act (the "Adult Use of Marijuana Act") legalizing certain activities by adults aged 21 or older pertaining to recreational marijuana including: 1. Possessing, processing, transporting, purchasing, obtaining, or giving away, to adults aged 21 or older without compensation whatsoever, of i I Ordinance 1478 Page 3 recreational marijuana in certain specified amounts (Health & Safety Code §§ 11362.1(a)(1) and (a)(2)); 2. Possessing, planting, cultivating, harvesting, drying, or processing of not more than 6 living marijuana plants and possessing the marijuana produced by those plants, provided that such activity is conducted within a person's private residence (i.e. house, apartment unit, mobile home or other similar dwelling), or upon the grounds of that private residence (e.g. in an outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a public place (Health & Safety Code §§ 11362.1(a)(3) and 11362.2(a)(2), (a)(3), and (b)(5)); and 3. Smoking or ingesting of marijuana and marijuana products (Health & Safety Code § 11362.1(a)(4)). J. That, pursuant to the Adult Use of Marijuana Act, local entities may not completely prohibit any of the foregoing activities, except that local entities may prohibit possessing, planting, cultivating, harvesting, drying, and processing of marijuana outdoors upon the grounds of a private residence ((Health & Safety Code § 11362.2(b)(3)), K. That pursuant to the provisions of the Tustin City Code ("TCC"), planting, cultivating, processing, harvesting, or drying of marijuana (whether medical or recreational) are not listed as a "permitted use" in any zoning district in the City; and that such uses and activities are expressly prohibited in all zoning districts within the City. L. That Code Amendment (CA) 2017-001 is consistent with the goals, objectives, and policies of the General Plan as a whole and is not inconsistent with any element thereof. Further, CA 2017-001 is necessary in order to ensure that the TCC is not inconsistent with state law. Specifically, this Ordinance is necessary in order to amend the TCC so that it does not prohibit activity and/or uses that are expressly permitted pursuant to the Adult Use of Marijuana Act, M. That CA 2017-001 is not subject to the California Environmental Quality Act (CEQA) pursuant to 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) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly. 1214024.1 Ordinance 1478 Page 4 N. That following a Public Hearing held on February 28, 2017, the Planning Commission adopted Resolution No. 4335 recommending approval of CA 2017-001. O. That pursuant to a legal notice, a Public Hearing regarding the proposed adoption of this Ordinance was held by the City Council on March 21, 2017, and all interested persons were given an opportunity to be heard, and that at that hearing, the City Council gave due and careful consideration to the matter. Section 1. The definition for "Medical marijuana" found at Section 3141 of Part 4 of Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety and replaced with the following: "Marijuana Dispensary" means any person, association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes, distributes, makes available, or otherwise facilitates the distribution of marijuana (in and form or incorporated into any other product), whether for recreational or medicinal use, to any person, including but not limited to, a qualified patient, a person with an identification card, or primary caregiver as those terms are defined in California Health and Safety Code Sections 11362.5 and 11362.7 et seq., a those sections may be amended from time to time. "Marijuana Dispensary" shall not include an individual aged 21 years or older who: 1) Possesses, processes, transports, purchases, obtains, or gives away to adults aged 21 or older without compensation whatsoever, recreational marijuana; or 2) Possesses, plants, cultivates, harvests, dries, or processes 6 or fewer living marijuana plants or who possesses the marijuana produced by those plants, provided that such activity is conducted within the person's `private residence', as that phrase is defined by California Health and Safety Code Section 11362.2(b)(5), or upon the grounds of that private residence, provided that such activities are conducted within a fully enclosed, locked space, and are not visible by normal unaided vision from a public place. Section 2. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is hereby amended to read as follows (new text in bold/italics and deleted text in strike th Fe g ): 1214024.1 Ordinance 1478 Page 5 Medical mMarijuana dispensaries as defined in this Code are expressly prohibited within the City. Section 3. Section 9270c of Part 7 of Chapter 2 of Article 9 of the TCC is hereby amended to read as follows (new text in bold/italics and deleted text in Strike through): Prohibited Uses Any use that is not expressly permitted in a district as a permitted use or as a conditionally permitted use, including a use in a district determined to be similar in character to a particular use allowed in such district as provided in this Code, shall be deemed a prohibited use and such use shall not be allowed in such district. ""e Marijuana dispensaries are expressly prohibited in all zoning districts. Section 4. The definition of "Medical Marijuana Dispensary" found at Section 9297 of Part 9 of Chapter 2 of Article 9 of the Tustin City Code is hereby deleted in its entirety and replaced with the following: "Marijuana Dispensary" means any person, association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, cultivates, processes, distributes, makes available, or otherwise facilitates the distribution of marijuana (in and form or incorporated into any other product), whether for recreational or medicinal use, to any person, including but not limited to, a qualified patient, a person with an identification card, or primary caregiver as those terms are defined in California Health and Safety Code sections 11362.5 and 11362.7 et seq., a those sections may be amended from time to time. "Marijuana Dispensary" shall not include an individual aged 21 years or older who: 1) Possesses, processes, transports, purchases, obtains, or gives away to adults aged 21 or older without compensation whatsoever, recreational marijuana; or 2) Possesses, plants, cultivates, harvests, dries, or processes 6 or fewer living marijuana plants or who possesses the marijuana produced by those plants, provided that such activity is conducted within the person's 'private residence', as that phrase is defined by California Health and Safety Code section 11362.2(b)(5), or upon 1214024.1 Ordinance 1478 Page 6 f the grounds of that private residence, provided that such activities ! are conducted within a fully enclosed, locked space, and are not visible by normal unaided vision from a public place. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out 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 ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 21St day of March, 2017. DR. ALLAN BERNSTEIN MAYOR l ATTEST: I i ERICA N. RABE CITY CLERK j i 1214024.1 Ordinance 1478 Page 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO, Erica N. Rabe, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1478 was duly and regularly introduced and read by title only at the regular meeting of the City Council held on the 21St day of March, 2017, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the 4th day of April, 2017, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe City Clerk Published: