HomeMy WebLinkAbout03 PC REPORT CANNABIS BUSINESSES AND ACTIVITY AGENDA REPORT ITEM 43
MEETING DATE: JANUARY 23, 2024
TO: PLANNING COMMISSION
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
CITY ATTORNEY
SUBJECT: CODE AMENDMENT (CA) 2024-0001 (ORDINANCE NO. 1540) —
CANNABIS BUSINESSES AND ACTIVITY
RECOMMENDATION
That the Planning Commission adopt Resolution No. 4481 , recommending that the
Tustin City Council adopt Draft Ordinance No. 1540, amending Tustin City Code (TCC)
Sections 3141 , 3152, 9270, and 9297 related to the regulation of cannabis businesses
and activity within the City.
APPROVAL AUTHORITY
TCC Section 9295f authorizes the Planning Commission to make a recommendation to
the City Council on proposed amendments to TCC Article 9, Chapter 2 (Zoning Code).
Draft Ordinance No. 1540 also contains proposed amendments to TCC Article 3,
Chapter 1 (Business Regulations), Sections 3141 and 3152. The Planning Commission
is not being asked to make recommendations with respect to the proposed
amendments to the City's Business Regulations.
BACKGROUND AND DISCUSSION
Proposed Code Amendment
Proposed CA 2024-0001 would update the TCC to ensure that it is not inconsistent with
the Medicinal Cannabis Patients' Right of Access Act, that became effective on January
1 , 2024.
Legislative Background
In 1996, the voters of the State of California approved Proposition 215, entitled "The
Compassionate Use Act of 1996" ("CUX) 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") that permitted qualified patients and their
1806078.1
Planning Commission Report
January 23, 2024
Code Amendment 2024-0001
Page 2
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 required or imposed 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.
On December 4, 2006, the City Council adopted Ordinance No. 1322, that prohibited
marijuana land 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, do so expressly by ordinance.
On January 19, 2016, the City Council adopted Ordinance No. 1466, that expressly
prohibited marijuana cultivation, processing, delivery, and distribution in all zoning
districts within the City.
On November 8, 2016, California voters approved Proposition 64 known as the Adult
Use of Marijuana Act ("AUMA"). The AUMA created a regulatory scheme that called for
licensing, taxing, oversight, and enforcement of recreational marijuana businesses
within the State of California. Like the MMRSA before it, the AUMA expressly provided
that local government entities have the right to adopt and enforce ordinances regulating
or completely prohibiting cannabis businesses within their jurisdictions, subject to
certain exceptions.
In addition to creating a regulatory framework for marijuana businesses, the AUMA
legalized certain activities by persons 21 years or older 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 AUMA included:
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));
Planning Commission Report
January 23, 2024
Code Amendment 2024-0001
Page 3
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 governments were permitted to regulate and prohibit cannabis businesses
licensed under the AUMA, the AUMA specified that local government entities could not
prohibit the foregoing activities, with the exception that local government could prohibit
the processing, planting, cultivating, harvesting, and drying of marijuana outdoors upon
the grounds of a private residence.
In response to the AUMA, the City Council adopted Ordinance No. 1478 to ensure that
the TCC did not prohibit activity and/or land uses expressly permitted by the AUMA. In
all other respects, the TCC continued to prohibit all other cannabis activities and land
uses to the greatest extent permitted by California law.
On September 8, 2022, the Governor signed SIB 1186 into law. SIB 1186 is known as
the Medicinal Cannabis Patients' Right of Access Act. It became effective on January 1 ,
2024, and does the following:
• Prohibits local jurisdictions from adopting or enforcing any regulations that
prevent the retail sale by delivery of medicinal cannabis to patients or their
caregivers.
• Prohibits local jurisdictions from adopting or enforcing any regulations that have
the effect of preventing the retail sale by delivery of medicinal cannabis to
patients or their caregivers in a timely or readily accessible manner, including any
of the following to the extent that such a regulation would prevent retail sale by
delivery of medicinal cannabis:
o Limitation of the number of businesses authorized to deliver medicinal
cannabis to locations within the local jurisdiction.
o Limitation of the operating hours of medicinal cannabis delivery
businesses.
o Limitation of the frequency of sales by delivery of medicinal cannabis.
Planning Commission Report
January 23, 2024
Code Amendment 2024-0001
Page 4
o Restriction of the types and quantities of medicinal cannabis that can be
sold by delivery.
o Prohibition of the establishment of physical premises from which retail sale
by delivery of medicinal cannabis within the local jurisdiction is conducted
by a licensed, non-storefront retailer.
However, the Medicinal Cannabis Patients' Right to Access Act did not affect the
authority of local jurisdictions to regulate or prohibit cannabis activity and uses in other
respects.
ANALYSIS
To the greatest extent possible under California law, the TCC has consistently
prohibited the use of any property within the City's borders for purposes of any form of
cannabis activity, regardless of whether that use was tied to medicinal or recreational
marijuana. Aside from the personal cannabis uses and activities (which the TCC
permits as mandated by the AUMA), the TCC currently contains prohibitions on use of
property for any type of cannabis business or activity. These prohibitions are found in
both the Business Regulations and Land Use provisions of the TCC.
Specifically, TCC Section 9270c states, in relevant part, "Marijuana dispensaries as
defined in this Code are expressly prohibited in all zoning districts." The TCC goes on to
broadly define a "Marijuana Dispensary" in Section 9297 as:
"`Marijuana Dispensary' [shall be defined 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), whether for
recreational or medicinal use, 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.
"Marijuana dispensary" shall not include an individual aged twenty-one
(21) years or older who:
(1) Possess, processes, transports, purchases, obtains or gives away
to adults aged twenty-one (21) or older without compensation whatsoever,
recreational marijuana; or
Planning Commission Report
January 23, 2024
Code Amendment 2024-0001
Page 5
(2) Possesses, plants, cultivates, harvests, dries, or purchases six (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."
Given the existing broad definition of "Marijuana Dispensary" within the TCC, coupled
with its comprehensive ban of all activity that fits within that definition, the TCC currently
prohibits activities that 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 2024-0001 is to remove language within the TCC that
conflicts with State law, while at the same time maintaining as much of the City's
existing provisions related to cannabis activities as possible. Proposed CA 2024-0001
does this by removing the definition of "Marijuana dispensary" and replacing it with a
substantially similar definition for "Cannabis Business", which carves out exceptions for
those activities that the State has expressly indicated cannot be prohibited.
With respect to the retail sale by delivery of medicinal cannabis, CA 2024-0001 would
authorize a cannabis business to deliver medicinal cannabis to a qualified patient or
their caregiver to a location within the City, provided that certain conditions are met.
Specifically, the cannabis business must be licensed by the State as required by the
California Business & Professions Code, and any deliveries must be made in
compliance with existing State law. Further, deliveries must be made to a building on a
residential property. Stated differently, deliveries cannot be made to empty lots, or to
commercial or industrial locations. Finally, CA 2024-0001 would prohibit delivery of
medicinal cannabis to publicly owned or operated land, public or private schools, day
care facilities, youth centers, and public or private parks.
All other cannabis uses and activities within the City remain illegal under CA 2024-0001 ,
including delivery of recreational cannabis within the City, and the establishment of a
physical cannabis business within the boundaries of the City.
The Medicinal Cannabis Patients' Right of Access Act stipulates that a local government
cannot prohibit the establishment of physical premises of a licensed non-storefront
retailer when it would prevent the delivery of medicinal cannabis within the jurisdiction.
This requirement may force some remote jurisdictions to permit a physical retail location
from which medicinal cannabis deliveries can be made. Tustin, on the other hand, is not
remote, and medicinal cannabis deliveries can be conveniently and timely delivered to
patients and caregivers within the City from licensed businesses located in Santa Ana
and Costa Mesa. Therefore, prohibiting a physical location within the City from which
Planning Commission Report
January 23, 2024
Code Amendment 2024-0001
Page 6
medicinal cannabis deliveries can be made does not have the effect of preventing the
delivery of medicinal cannabis as set forth in SB 1186.
ENVIRONMENTAL ANALYSIS
The proposed CA 2024-0001 is not subject to the California Environmental Quality Act
(CEQA) pursuant to California Code of Regulations, Title 14, Chapter 3, Sections 15060
(c) (2), as it can be seen with certainty that the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment, and 15060(c)(3),
since 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.
Attachments:
A. Planning Commission Resolution No. 4481
B. Draft Ordinance No. 1540
Prepared by: Jason McEwen, Assistant City Attorney
Presented by: Michael Daudt, Assistant City Attorney
Approved by: Justina L. Willkom, Community Development Director
ATTACHMENT A
RESOLUTION NO. 4481
AN RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF TUSTIN, CALIFORNIA, RECOMMENDING
THAT THE CITY COUNCIL ADOPT ORDINANCE NO. 1540,
AMENDING TUSTIN CITY CODE SECTIONS 3141 , 3152,
9270, AND 9297 TO UPDATE THE CITY'S BUSINESS AND
LAND USE REGULATIONS PERTAINING TO CANNABIS
BUSINESSES (CODE AMENDMENT 2024-0001)
The Planning Commission of the City of Tustin 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 Bill (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 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 10 months and 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.
Resolution No. 4481
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 was 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:
Resolution No. 4481
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 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 (AUMA), 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 on April 18, 2017, the City Council adopted Ordinance No. 1478. The
purpose of Ordinance No. 1478 was to amend the Tustin City Code ("TCC")
to ensure that it did not prohibit activity and/or uses expressly permitted
pursuant to the AUMA.
L. That on September 8, 2022, the Governor of the State of California signed
SB 1186 (the "Medicinal Cannabis Patients' Right of Access Act") which,
effective January 1 , 2024, prohibits local jurisdictions from enforcing any
regulations which prohibit or have the effect of prohibiting delivery of
medicinal cannabis to medicinal cannabis patients or their primary
caregivers.
M. That pursuant to the provisions of the TCC, delivery of cannabis, whether
medicinal or recreational, is 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.
N. That the City Council desires to modify TCC sections 3141 , 3152, 9270, and
9297 to comply with State law.
Resolution No. 4481
Page 4
O. That Code Amendment (CA) 2024-0001 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 2024-0001 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 Medicinal Cannabis Patients' Right of Access Act.
P. That CA 2024-0001 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.
Q. That on January 23, 2024, a public hearing was duly noticed, called, and
held by the Planning Commission on CA 2024-0001
II. The Planning Commission hereby recommends that the City Council adopt
Ordinance No. 1540, amending TCC Sections 3142, 3152, 9270, and 9297 to update the
City's Business and Land Use regulations pertaining to Cannabis Businesses.
Resolution No. 4481
Page 5
PASSED AND ADOPTED, at a regular meeting of the Planning Commission of the City
of Tustin on the 23rd day of January, 2024.
STEVE KOZAK
Chairperson
JUSTINA L. WILLKOM
Planning Commission Secretary
APPROVED AS TO FORM:
MICHAEL DAUDT
Assistant City Attorney
Resolution No. 4481
Page 6
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
I, Justina L. Willkom, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California; that Resolution No. 4481 was duly passed
and adopted at a regular meeting of the Tustin Planning Commission, held on the 23rd,
day of January, 2024.
PLANNING COMMISSIONER AYES:
PLANNING COMMISSIONER NOES:
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ABSENT:
JUSTINA L. WILLKOM
Planning Commission Secretary
Exhibit A: Draft Ordinance No. 1540
ATTACHMENT B
DRAFT ORDINANCE NO. 1540
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 CANNABIS BUSINESSES (CODE
AMENDMENT 2024-0001)
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 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 Bill (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,
safety, morals and general welfare of the residents and businesses within
the City.
1806052.1
Ordinance No. 1540
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 was 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 distribution 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, Regulation, and Tax Adult Use of Marijuana Act (the "Adult Use of
Marijuana Act") legalizing certain activities by adults aged 21 years or older
pertaining to recreational marijuana including-
1 . Possessing, processing, transporting, purchasing, obtaining, or giving
away, to adults aged 21 years or older without compensation
1806052.1
Ordinance No. 1540
Page 3
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))-1 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 (AUMA), 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 on April 18, 2017, the City Council adopted Ordinance No. 1478. The
purpose of Ordinance No. 1478 was to amend the Tustin City Code ("TCC")
to ensure that it did not prohibit activity and/or uses expressly permitted
pursuant to the Adult Use of Marijuana Act.
L. That on September 8, 2022, the Governor of the State of California signed
SB 1186 (the "Medicinal Cannabis Patients' Right of Access Act") which,
effective January 1 , 2024, prohibits local jurisdictions from enforcing any
regulations which prohibit or have the effect of prohibiting delivery of
medicinal cannabis to medicinal cannabis patients or their primary
caregivers.
M. That pursuant to the provisions of the TCC, delivery of cannabis, whether
medicinal or recreational, is 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.
N. The City Council desires to modify TCC Sections 3141 , 3152, 9270, and
9297 to comply with State law.
O. That Code Amendment (CA) 2024-0001 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 2024-0001 is necessary
in order to ensure that the TCC is not inconsistent with State law.
1806052.1
Ordinance No. 1540
Page 4
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 Medicinal Cannabis Patients' Right of Access Act.
P. That CA 2024-0001 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.
Q. That on January 23, 2024, the Planning Commission adopted Resolution
No. 4481 , and recommended that the City Council adopt Ordinance No.
1540, approving CA 2024-0001
R. That on , a public hearing was duly noticed, called, and held by the
City Council on CA 2024-0001
SECTION 2. The definition for "Marijuana Dispensary" found at Section 3141 of Part 4
of Chapter 1 of Article 3 of the TCC is hereby deleted in its entirety.
SECTION 3. Section 3141 (Definitions) of Part 4 of Chapter 1 of Article 3 of the TCC is
hereby amended to add a definition for "Cannabis Business" to read as follows (new text
underlined):
Cannabis Business. 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 cannabis (in any 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 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.
"Cannabis Business" shall not include the following:
(1) An individual aged twenty-one (21) years or older who:
(a) Possess, processes, transports, purchases, obtains or gives
away to adults aped twenty-one (21) years or older without
compensation whatsoever, recreational marijuana; or
(b) Possesses, plants, cultivates, harvests, dries, or purchases six
(6) or fewer living marijuana plants or who possesses the
1806052.1
Ordinance No. 1540
Page 5
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.
(2) A business entity licensed pursuant to, and acting in compliance with,
California Business & Professions Code Section 26000 et seq. and
California Code of Regulations Sections 15400 et seq., which engages in
the retail sale by delivery of medicinal cannabis to medicinal cannabis
patients to a location within the City, provided that the following conditions
are met:
(a) The method of delivery is in full compliance with the provisions of
California Business & Professions Code Section 26090 et seq. and
California Code of Regulations Sections 15400 et seq. (as may be
amended from time to time);
(b) The delivery is made to a building on a residential property with an
existing physical address. For purposes of this section, a "residential
Property" is limited to the following: any dwelling unit, including
single-family, multi-family, and accessory dwelling units, apartment,
condominium, duplex, hotel, motel, mobile home, rest home, or
townhouse or townhome as those terms are defined by Section 9791
of this Code;
(c) The delivery is not made to any of the following, regardless of
whether the location is a "residential property" as described in
subsection (b) of this section:
1 . Any address located on publicly owned land or any address
on land or in a building leased by any public agency, as that
phrase is defined by California Government Code Section
65M or
2. Any school providing instruction in kindergarten or any grades
1 through 12, day care center, or youth center, whether such
institution or entity is public or private.
3. Any public or private park. For purposes of this section, "public
or private park" shall mean any park operated by the City or
any park situated on privately owned property within the City
that is generally open for public use and shall include all
sidewalks or other public rights-of-way which are located
1806052.1
Ordinance No. 1540
Page 6
immediately adjacent to any public or private park. A park
shall be deemed generally open for public use if it is open to
any person(s) other than the owner of the privately owned
Property upon which the park is situated, including, but not
limited to, tenants, quests, or customers.
(d) The delivery must originate from an entity licensed pursuant to, and acting
in compliance with, California Business & Professions Code Section 26000
et seq. which is not located within the City of Tustin.
For purposes of this section the terms "medicinal cannabis" and "medicinal
cannabis patients" shall have the same meanings as those terms are defined in
California Business & Professions Code Section 26321(b).
SECTION 4. Section 3152 of Part 5 of Chapter 1 of Article 3 of the TCC is hereby
amended and restated in its entirety to read as follows (new text
underlined, deletions in c+riLo+hrni inh):
3152 MARWANA DISPENSARIES CANNABIS BUSINESSES
Mariii aRa rIOSI98 ,c Cannabis Businesses as defined�4 by Section 3141
of this Code are expressly prohibited within the City.
SECTION 5. Subsection (c) of Section 9270 (Regulations) of Part 7 of Chapter 2 of
Article 9 of the TCC is hereby amended to read as follows (new text underlined, deletions
in strikethrni irrh):
c. 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.
Mariii aRa diSp8Rsarie- Cannabis Businesses as defined �4 by Section 3141 of
this Code are expressly prohibited in all zoning districts.
SECTION 6. The definition for "Marijuana Dispensary" found at Section 9297 of Part 9
of Chapter 2 of Article 9 of the TCC is hereby deleted in its entirety.
SECTION 7. Section 9297 of Part 9 of Chapter 2 of Article 9 of the TCC is hereby
amended to add a definition for "Cannabis Business" to read as follows (new text
underlined):
1806052.1
Ordinance No. 1540
Page 7
"Cannabis Business" 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 cannabis (in any 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 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.
"Cannabis Business" shall not include the following:
(1) An individual aged twenty-one (21) years or older who:
(a) Possesses, processes, transports, purchases, obtains or gives
away to adults aged twenty-one (21) years or older without
compensation whatsoever, recreational marijuana; or
(b) Possesses, plants, cultivates, harvests, dries, or purchases six
(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.
(2) A business entity licensed pursuant to, and acting in compliance with,
California Business & Professions Code Section 26000 et seq. and
California Code of Regulations Sections 15400 et seq., which
engages in the retail sale by delivery of medicinal cannabis to
medicinal cannabis patients to a location within the City, provided
that the following conditions are met:
(a) The method of delivery is in full compliance with the provisions of
California Business & Professions Code Section 26090 et seq.
and California Code of Regulations Sections 15400 et seq. (as
may be amended from time to time);
1806052.1
Ordinance No. 1540
Page 8
(b) The delivery is made to a building on a residential property with
an existing physical address. For purposes of this section, a
"residential property" is limited to the following: any dwelling unit,
including single-family, multi-family, and accessory dwelling
units, apartment, condominium, duplex, hotel, motel, mobile
home, rest home, or townhouse or townhome as those terms are
defined by Section 9791 of this Code;
(c) The delivery is not made to any of the following, regardless of
whether the location is a "residential property" as described in
subsection (b) of this section:
1 . Any address located on publicly owned land or any address
on land or in a building leased by any public agency, as that
phrase is defined by California Government Code Section
65M or
2. Any school providing instruction in kindergarten or any grades
1 through 12, day care center, or youth center, whether such
institution or entity is public or private.
3. Any public or private park. For purposes of this section, "public
or private park" shall mean any park operated by the City or
any park situated on privately owned property within the City
that is generally open for public use and shall include all
sidewalks or other public rights-of-way which are located
immediately adjacent to any public or private park. A park
shall be deemed generally open for public use if it is open to
any person(s) other than the owner of the privately owned
Property upon which the park is situated, including, but not
limited to, tenants, quests, or customers.
(d) The delivery must originate from an entity licensed pursuant to,
and acting in compliance with, California Business & Professions
Code Section 26000 et seq. which is not located within the City
of Tustin.
For purposes of this section the terms "medicinal cannabis" and "medicinal
cannabis patients" shall have the same meanings as those terms are defined in
California Business & Professions Code Section 26321(b).
1806052.1
Ordinance No. 1540
Page 9
SECTION 8. Effective Date. This Ordinance shall take effect on the 31 st day after its
adoption. The City Clerk or his or her duly appointed deputy shall certify to adoption of
the Ordinance and cause this Ordinance to be published as required by law.
SECTION 9. CEQA Exemption. The City Council finds that this Ordinance 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.
SECTION 10. Severability. 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 day of , 2024.
AUSTIN LUMBARD, MAYOR
ATTEST:
ERICA N. YASUDA, CITY CLERK
1806052.1
Ordinance No. 1540
Page 10
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1540
Erica N. Yasuda, 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. 1540 was duly
passed, and adopted at a regular meeting of the Tustin City Council held on the _ day
of , 2024, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
Erica N. Yasuda, City Clerk
Published:
1806052.1