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HomeMy WebLinkAboutPROP 64 AMENDMENT PRESENTATION - 3.21.17CODE AMENDMENT 2017-01 City Council March 21, 2017 AMENDMENT OF TUSTIN CITY CODE REGARDING REGULATION OF MARIJUANA ACTIVITY IN LIGHT OF PROPOSITION 64 LEGISLATIVE HISTORY •Federal Controlled Substances Act •Compassionate Use Act –1996 •Medical Marijuana Program Act –2003 •Tustin City Code Amendment –2006 •Medical Marijuana Regulation and Safety Act –2016 •Tustin City Code Amendment –2016 •Proposition 64 –The Adult Use of Marijuana Act –Nov. 8, 2016 ADULT USE OF MARIJUANA ACT •The Adult Use of Marijuana Act creates an extensive regulatory scheme that calls for licensing, taxing, and oversight of recreational marijuana businesses within CA (e.g. Dispensaries, Cultivation Sites, Delivery Services, Manufacturing, Laboratory Testing, Etc.) •Beginning in 2018, the State will begin issuing licenses for the transportation, cultivation and sale of recreational marijuana. ADULT USE OF MARIJUANA ACT •The Act also legalizes certain activities for individuals who have reached the age of 21, who may now: •Possess, process, transport, purchase, obtain, or give away (but not sell) specified amounts of marijuana to persons 21 or over ; •Smoke or ingest marijuana; •Manufacture, possess, purchase, use or give away “marijuana accessories”; •Plant, cultivate, harvest, dry, or process up to 6 living marijuana plants within a person’s private residence, or upon the grounds of that private residence. ADULT USE OF MARIJUANA ACT •A “private residence” includes: •A house •An apartment unit •A mobile home •A “similar dwelling unit” •“Upon the grounds” of a private residence includes outdoor areas, such as an outdoor garden, as long the area is locked and the activity is not visible from a public space. ANALYSIS Effect of Adult Use of Marijuana Act on City’s Ability to Regulate Marijuana Activity and Land Uses: •The Act expressly recognizes and confirms the right of local government agencies to regulate or completely ban recreational marijuana businesses and associated land uses, including commercial cultivation, sale, distribution, manufacture, processing, etc. •However, the Act identifies certain activities and land uses tied to personal recreational marijuana use that may not be completely prohibited by local government agencies. ANALYSIS CITY MAY NOT PROHIBIT: •Possession, transportation, purchasing, obtaining, of marijuana by an adult who is at least 21 years old, or the giving away of specified amounts of marijuana by such individual to another adult who is at least 21 years old •Smoking or ingesting marijuana by an adult who is at least 21 •Manufacturing, possession, purchasing, using or giving away “marijuana accessories” •Planting, cultivating, harvesting, drying, or processing of up to 6 living marijuana plants (per household, not per resident) within a person’s private residence, or upon the grounds of a private residence, provided that the activity is conducted within a fully enclosed, secure accessory structure. ANALYSIS CITY MAY: •Prohibit (or regulate) all outdoor cultivation of marijuana even on residential property •Adopt reasonable regulations on (but not prohibit) the indoor cultivation of 6 or fewer plants in private residences or accessory dwelling structures •Prohibit the cultivation of more than 6 plants, even if for personal use •Prohibit all commercial cultivation and sale of marijuana •Note: the City must allow vehicles delivering marijuana to pass through the City. •Indirectly regulate smoking of marijuana in certain indoor locations, as the Adult Use of Marijuana Act makes it unlawful to smoke marijuana in any public place and where smoking tobacco is prohibited. ANALYSIS •Tustin City Code currently contains express provisions which prohibit use of any land within the City for purposes of operating a “Medical Marijuana Dispensary”. The same prohibitions exist in the City’s business regulations. •The term “Medical Marijuana Dispensary” is broadly defined within the Tustin City Code as "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 other product) to any person, including, but not limited to, a qualified patient, a person with an identification card, or a primary caregiver 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.” (TCC secs. 3141 & 9297) ANALYSIS •Given current definition of “Medical Marijuana Dispensary” in the TCC, the City currently prohibits activity that is addressed (and permitted to some extent) by the Adult Use of Marijuana Act: •Possession (of up to 28.5 grams of non-concentrated, or up to 8 grams of concentrated, cannabis) •Cultivation (of up to 6 plants inside a residence) •Processing (the personally grown plants) •Distribution or “making available”(to those over 21, without compensation) ANALYSIS •If the City does not act to conform its municipal code to the newly enacted State law provisions, it faces a significant risk of litigation; particularly if the conflicting provisions are enforced. •Code Amendment 2017-01 amends the Tustin City Code to remove language that conflicts with State law, while maintaining as many of the City’s existing provisions regarding marijuana activity as possible. •The Code Amendment also clarifies that the City’s marijuana regulations pertain equally to medicinal and recreational marijuana. ANALYSIS •The specific change being proposed is removing the definition for “Medical Marijuana Dispensary” and replacing it with a new definition for “Marijuana Dispensary”. •The proposed definition for “Marijuana Dispensary” largely mirrors the definition it will replace, but carves out exceptions for those activities which State law has expressly indicated cannot be prohibited. ALTERNATIVES •City may continue to explore alternative regulatory provisions pertaining to marijuana activity •Adopting the proposed ordinance will not foreclose the City’s ability to change course regarding its marijuana policy in the future •Adopting the proposed ordinance will reduce the likelihood of legal challenges to the City’s existing code provisions regarding marijuana activities and uses. RECOMMENDATION That the City Council adopt Ordinance No. 1478, amending Tustin City Code sections 3141, 3152, 9270c and 9297 relating to the regulation of marijuana activity in the City.